Three Federalisms:
Three Federalisms, a new very short (10 pages) piece of mine is now up on SSRN. It was prepared for a Symposium on Checks and Balances Today: The Reality of Separation of Powers, held at Loyola University Chicago School of Law in March. Download it here. Here is the abstract:
Debates over the importance of “federalism” are often obscured by the fact that there are not one, but three distinct versions of constitutional federalism that have arisen since the Founding: Enumerated Powers Federalism in the Founding era, Fundamental Rights Federalism in the Reconstruction era, and Affirmative State Sovereignty Federalism in the post-New Deal era. In this very short essay, my objective is to reduce confusion about federalism by defining and identifying the origin of each of these different conceptions of federalism. I also suggest that, while Fundamental Rights Federalism significantly qualified Enumerated Powers Federalism, it was not until the New Deal’s expansion of federal power that Enumerated Powers Federalism was eviscerated altogether. To preserve some semblance of state discretionary power in the post-New Deal era, the Rehnquist Court developed an ahistorical Affirmative State Sovereignty Federalism that was both under- and over-inclusive of the role of federalism that is warranted by the original meaning of the Constitution as amended.
I see a federalist design in the following conjunction of articles.
Article 1 provides for both a House and a Senate, with the representatives of the common people having their say in the House and the appointees of the State legistatures having their say in the Senate
Article 2 section 2 says who must consent to the Presidents choice of judges for the Supreme Court. It is the Senate.
Senate, House, what does it matter? The question to ask is: What is the difference between a Supreme Court and an third indirectly election legislative chamber (the Scotus?). In theory the Court acts as a court of law, but what stops it acting as a third and final legislative chamber? Nothing really, so stop a while and ponder that it will answer to its electors.
Or will it? The justices of the Supreme Court are elected for life, so the sense of election and answering to an electorate are much weaker than for the Senate and the House. Nevertheless, men have characters, and the characters of the justices will bear the stamp of the process that selects them.
So we have two competing designs. One chamber or the other, either the House or the Senate, must be picked as the chamber that consents to the appointment of justices to the Supreme Court.
Consider first if it is the House that consents. Cases will come before the court in which a state legislature is in dispute with the will of the House. Who will prevail, state or federation? Since they control the appointment of Supreme Court judges the House has a built-in advantage. Over time they will learn to pick judges whose temperament favours a strong central government and over time accumulating precedent will transfer power from the states to the federal government.
Consider instead that the Senate consents. In a similar way the state legislatures will learn to send men to Washington who favour states rights. They will learn over the years that this matters more than it at first appears. The Senators are not merely the legislatures voice in the federal government. They also control appointment to the Supreme Court. Occassionally judgements will favour federal power over state power. The state legislatures will ask: what idiot appointed that judge? They will answer: whoops, our man in Washington did.
So there is a fascinating tension. One the one hand there is a tendency towards returning power to the states, weakening the federal government. On the other hand, the state legislatures are working indirectly. Their senators are in Washington and will tend to go native, and the justices are appointed for life so will tend even more to go native and see things from the point of view of the federal government.
The founders opted for the Senate. The states retained their powers, for better of worse. The civil war lead to the 13th and 14th amendments, moving power to the federal government. It trickled back. The 17th amendment changed the design to one with a federalising dynamic, leading via WICKARD v. FILBURN to GONZALES v RAICH.