In referring to the whole subject of the federal and state balance, we said this just three Terms ago: 'This framework has been sufficiently flexible over the past two centuries to allow for enormous changes in the nature of government. The Federal Government undertakes activities today that would have been unimaginable to the Framers in two senses: first, because the Framers would not have conceived that any government would conduct such activities; and second, because the Framers would not have believed that the Federal Government, rather than the States, would assume such responsibilities. Yet the powers conferred upon the Federal Government by the Constitution were phrased in language broad enough to allow for the expansion of the Federal Government's role.' It does not follow, however, that in every instance the Court lacks the authority and responsibility to review congressional attempts to alter the federal balance. This case requires us to consider our place in the design of the Government and to appreciate the significance of federalism in the whole structure of the Constitution.
Of the various structural elements in the Constitution, separation of powers, checks and balances, judicial review, and federalism, only concerning the last does there seem to be much uncertainty respecting the existence, and the content, of standards that allow the judiciary to play a significant role in maintaining the design contemplated by the Framers. Although the resolution of specific cases has proved difficult, we have derived from the Constitution workable standards to assist in preserving separation of powers and checks and balances. These standards are by now well accepted and judicial review is also established beyond question, Our role in preserving the federal balance seems more tenuous.
There is irony in this, because of the four structural elements in the Constitution just mentioned, federalism was the unique contribution of the Framers to political science and political theory. Though on the surface the idea may seem counterintuitive, it was the insight of the Framers that freedom was enhanced by the creation of two governments, not one.
"In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other at the same time that each will be controlled by itself." James Madison, Federalist No. 51
Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front. . . . In the tension between federal and state power lies the promise of liberty. The Constitution divides authority between federal and state governments for the protection of individuals. State sovereignty is not just an end in itself. Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.
The theory that two governments accord more liberty than one requires for its realization two distinct and discernible lines of political accountability: one between the citizens and the Federal Government; the second between the citizens and the States. If, as Madison expected, the federal and state governments are to control each other, see Federalist No. 51, and hold each other in check by competing for the affections of the people, see Federalist No. 46, those citizens must have some means of knowing which of the two governments to hold accountable for the failure to perform a given function. Federalism serves to assign political responsibility, not to obscure it. Were the Federal Government to take over the regulation of entire areas of traditional state concern, areas having nothing to do with the regulation of commercial activities, the boundaries between the spheres of federal and state authority would blur and political responsibility would become illusory. The resultant inability to hold either branch of the government answerable to the citizens is more dangerous even than devolving too much authority to the remote central power.
To be sure, one conclusion that could be drawn from The Federalist Papers is that the balance between national and state power is entrusted in its entirety to the political process. Madison's observation that "the people ought not surely to be precluded from giving most of their confidence where they may discover it to be most due," (Federalist No. 46) can be interpreted to say that the essence of responsibility for a shift in power from the State to the Federal Government rests upon a political judgment, though he added assurance that "the State governments could have little to apprehend, because it is only within a certain sphere that the federal power can, in the nature of things, be advantageously administered, Whatever the judicial role, it is axiomatic that Congress does have substantial discretion and control over the federal balance.
For these reasons, it would be mistaken and mischievous for the political branches to forget that the sworn obligation to preserve and protect the Constitution in maintaining the federal balance is their own in the first and primary instance. In the Webster-Hayne Debates and the debates over the Civil Rights Acts before the Senate Committee on Commerce (88th Congress; 1963), some Congresses have accepted responsibility to confront the great questions of the proper federal balance in terms of lasting consequences for the constitutional design. The political branches of the Government must fulfill this grave constitutional obligation if democratic liberty and the federalism that secures it are to endure.
Although it is the obligation of all officers of the Government to respect the constitutional design, the federal balance is too essential a part of our constitutional structure and plays too vital a role in securing freedom for us to admit inability to intervene when one or the other level of Government has tipped the scales too far.
Our ability to preserve this principle under the Commerce Clause has presented a much greater challenge. This clause has throughout the Court's history been the chief source of its adjudications regarding federalism no other body of opinions affords a fairer or more revealing test of judicial qualities. But as the branch whose distinctive duty it is to declare what the law is, are often called upon to resolve questions of constitutional law not susceptible to the mechanical application of bright and clear lines. The substantial element of political judgment in Commerce Clause matters leaves our institutional capacity to intervene more in doubt than when we decide cases, for instance, under the Bill of Rights even though clear and bright lines are often absent in the latter class of disputes. But our cases do not teach that we have no role at all in determining the meaning of the Commerce Clause.
The statute before us upsets the federal balance to a degree that renders it an unconstitutional assertion of the commerce power, and our intervention is required. As the Chief Justice explains, unlike the earlier cases to come before the Court here neither the actors nor their conduct have a commercial character, and neither the purposes nor the design of the statute have an evident commercial nexus. The statute makes the simple possession of a gun within 1,000 feet of the grounds of the school a criminal offense. In a sense, any conduct in this interdependent world of ours has an ultimate commercial origin or consequence, but we have not yet said the commerce power may reach so far. If Congress attempts that extension, then at the least we must inquire whether the exercise of national power seeks to intrude upon an area of traditional state concern.
If a State or municipality determines that harsh criminal sanctions are necessary and wise to deter students from carrying guns on school premises, the reserved powers of the States are sufficient to enact those measures. Indeed, over 40 States already have criminal laws outlawing the possession of firearms on or near school grounds."
The United States Supreme Court building in early March, 2012: Above. photo by Stan Deatherage
In the case of Bond v. United States, a woman was convicted of trying to poison her husband's mistress. (24 times over several months). He had had a child with the mistress while still married to Bond. The government tried to convict her under a federal statute designed to go after terrorists and so she sued, claiming that she should have been convicted under an applicable state criminal statute. The Court of Appeals for the Third Circuit held that Bond lacked standing to challenge the statute. The Supreme Court, in a unanimous decision, held that a criminal defendant who has been convicted under a federal statute can challenge that conviction on grounds that the statute is unconstitutional. In this particular case, the Court held that the statute exceeded the federal government's powers with respect to the Tenth Amendment. Justice Kennedy wrote the majority opinion:
"The federal system rests on what might at first seem a counter-intuitive insight, that "freedom is enhanced by the creation of two governments, not one." Alden v. Maine, 527 U. S. 706, 758 (1999). The Framers concluded that allocation of powers between the National Government and the States enhances freedom, first by protecting the integrity of the governments themselves, and second by protecting the people, from whom all governmental powers are derived.
The principles of limited national powers and state sovereignty are intertwined. While neither originates in the Tenth Amendment, both are expressed by it. Impermissible interference with state sovereignty is not within the enumerated powers of the National Government, see New York v. United States, 505 U. S. 144 (1992), at 155-159, and action that exceeds the National Government's enumerated powers undermines the sovereign interests of States. See United States v. Lopez, 514 U. S. 549, 564 (1995). The unconstitutional action can cause concomitant injury to persons in individual cases.
Federalism has more than one dynamic. It is true that the federal structure serves to grant and delimit the prerogatives and responsibilities of the States and the National Government vis-à-vis one another. The allocation of powers in our federal system preserves the integrity, dignity, and residual sovereignty of the States. The federal balance is, in part, an end in itself, to ensure that States function as political entities in their own right.
But that is not its exclusive sphere of operation. Federalism is more than an exercise in setting the boundary between different institutions of government for their own integrity. "State sovereignty is not just an end in itself: Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.
Some of these liberties are of a political character. The federal structure allows local policies 'more sensitive to the diverse needs of a heterogeneous society,' permits 'innovation and experimentation,' enables greater citizen 'involvement in democratic processes,' and makes government 'more responsive by putting the States in competition for a mobile citizenry.' [All of these would protect and enlarge individual liberty and protect against an oppressive "one-size-fits-all" approach].
Federalism secures the freedom of the individual. It allows States to respond, through the enactment of positive law, to the initiative of those who seek a voice in shaping the destiny of their own times without having to rely solely upon the political processes that control a remote central power. True, of course, these objects cannot be vindicated by the Judiciary in the absence of a proper case or controversy; but the individual liberty secured by federalism is not simply derivative of the rights of the States.
Federalism also protects the liberty of all persons within a State by ensuring that laws enacted in excess of delegated governmental power cannot direct or control their actions. [See ibid]. By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake.
The limitations that federalism entails are not therefore a matter of rights belonging only to the States. States are not the sole intended beneficiaries of federalism. An individual has a direct interest in objecting to laws that upset the constitutional balance between the National Government and the States when the enforcement of those laws causes injury that is concrete, particular, and redressable. Fidelity to principles of federalism is not for the States alone to vindicate."
The outcome of this historic case against the massively oppressive healthcare reform bill will no doubt shape the legacy of the Roberts' Court, influence President Obama's re-election prospects, and potentially deepen the ideological rift that is already dividing the country. But most importantly, the outcome will determine what impact the US Constitution still has on protecting the individual from the pernicious reaches of government.
References:
United States v. Lopez, 514 U.S. 549 (1995). Referenced at: http://www.law.cornell.edu/supct/html/93-1260.ZO.html
Bond v. United States, 564 U.S. ___ (2010).
"Anthony A. Kennedy," NY Times, March 29, 2012. Referenced at: http://topics.nytimes.com/top/reference/timestopics/people/k/anthony_m_kennedy/index.html
Transcript and Audio for Monday's Arguments: http://www.politico.com/news/stories/0312/74477.html
Transcript and Audio for Tuesday's Arguments: http://www.npr.org/2012/03/27/149465820/transcript-supreme-court-the-health-care-law-and-the-individual-mandate
Transcript and Audio for Wednesday's Arguments: http://www.npr.org/2012/03/28/149548299/transcript-audio-supreme-court-the-health-care-law-and-medicaid-expansion
Audio for Tuesday's arguments: http://apne.ws/Hft6z3
Audio for Wednesday's arguments: http://apne.ws/GX1p23 (morning) and http://apne.ws/GXdZOP (afternoon).
"The Supreme Court Arguments Are Over - What Happens Now?," Kaiser Health News, March 29, 2012. Referenced at: http://www.kaiserhealthnews.org/Daily-Reports/2012/March/29/supreme-court-big-picture-wrap-up.aspx
Diane Rufino has her own blog For Love of God and Country. Come and visit her. She'd love your company.
