Steve Chapman, at reason.com: Phony Federalism – The Republican Party is a fickle friend to the Tenth Amendment.
I’m sympathetic to constitutional federalism and I think Chapman has a point in his central argument (that modern Republicans talk a lot about local control but “[w]hen there is a conflict between state sovereignty and conservative policies, their reverence for the 10th Amendment abruptly goes by the wayside”). But here and in other places in political commentary too much emphasis gets placed on the Tenth Amendment, as opposed to the Constitution’s other protections of federalism.
Here’s Chapman’s description:
The [tenth] amendment contains just one sentence: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
It is a bulwark of federalism, which allows states the freedom to adopt different policies reflecting their peculiar circumstances. It was meant as a check on those who would demand uniform practices from one end of America to the other.
This overstates. The Amendment supports federalism in two limited ways, but it’s not the Constitution’s chief protection. First, the Amendment makes clear that the national government’s power can come only from delegations in the Constitution itself – there are no “extra-constitutional” powers (contrary to what the Supreme Court said about foreign affairs powers in United States v. Curtiss-Wright Export Corp.). Thus, if the national government acts, it must point to some provision in the Constitution giving it the power to do so. Second, the Amendment heavily implies that some powers are in fact not delegated to the national government by the Constitution – contrary to modern arguments that effectively nothing is beyond the national government’s reach. If everything were delegated, there would be nothing for the Amendment to “reserve[]”.
But these points aside, the Tenth Amendment doesn’t say anything about which (or how many) powers the states retain. The Amendment is consistent with both a very limited delegation of powers to the national government and a very broad (though not unlimited) one. Instead, it’s necessary to look at the Constitution’s provisions that actually delegate power to the national government – principally Article I, Section 8, which lists (“enumerates,” it is usually said, even though the Constitution does not number them) the powers of Congress. If these delegated (“enumerated”) powers are read broadly, there’s not much “reserved” to the states by the Tenth Amendment, and not much constitutional protection for federalism.
So the debate nominally about the Tenth Amendment is really a debate about Article I, Section 8, and as a practical matter mostly about two clauses: Congress’ power to “regulate Commerce … among the several States” and Congress’ power to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers…” Most exercises of federal authority said to infringe the Tenth Amendment rest upon extensions of these two powers to things that have on their face nothing to do with interstate commerce. The Tenth Amendment doesn’t address the question whether the interstate commerce power should be broad or narrow (except, as I’ve said, to imply that it cannot be without limit).
Thus it’s not surprising that, while Article I, Section 8 and especially the commerce clause may sometimes be regarded as a bore by law students, they are the focus of much recent interesting and creative legal scholarship on federalism. (For example, the on-going exchange at Volokh Conspiracy between Kurt Lash and Neil Siegel, based on their recent articles, and the exchange between Jack Balkin and Randy Barnett noted here). Political commentary, to the extent it focuses on the Tenth Amendment in isolation, misses the full constitutional picture.
None of this is to disparage broad-based appeals to federalism, either as a political ideal or as a matter of the Constitution’s original meaning. But we should be clear what we’re talking about, and in most cases it isn’t the Tenth Amendment. If proponents of federalism want to move the debate as a constitutional matter, the target should be expansive readings of the commerce clause: that’s what’s brought us to our current condition.
Yet that conclusion reaffirms Chapman’s central point as a practical matter. The Supreme Court has shown little appetite for materially revisiting its commerce clause doctrine (see especially here). A genuine federalism revival likely depends less on changing the Court’s mind and more on developing political support for the proposition that not all problems need be addressed at the national level. Modern Republicans aren’t credible in developing that support if (as Chapman says) they abandon it in favor of particular policy preferences when convenient. Being serious about federalism means accepting that states may not always do what you want them to do.
Posted at 1:00 PM