November 17, 2011

strung along

Posted by Andrew under constitutional law | Tags: , |
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This is a quick, and as all things coming of the top of my head potentially embarrassing, post on the constitutionality of the Affordable Care Act:

Most commentary I’ve read argues that the commerce clause does/does not provide authority to Congress to implement the individual mandate.  The tax and spending clause tends to get mentioned as the mandate being a type of tax.

I haven’t seen much debate on what would seem an easier route to Congressional authority: attaching the mandate a conditional string to health-related funding to the states.  Is that out there and I’ve just missed it?

A policy in which we choose not to have fully private health care and insurance–in other words, one in which we have chosen not to simply let those die that cannot pay for coverage–requires some government spending.  States and the federal government do most of that spending.  I suppose it could be possible for the federal government to get out of the game, and allow that basically moral decision to occur within each state–do we, as a state, wish to create programs like mandatory emergency room coverage, social security, medicare, and medicaid to help prevent death by empty pocket? For now, though, the federal government has a major role in that prevention.  Why can’t it attach conditions to its health-related spending just as the conditions of the drinking age attach to highway funds?

The condition couldn’t be the individual mandate – but could require states accepting funds to implement something that achieves the same goal, which in my mind is getting rid of the incentive to not getting insurance until sick.

 

December 10, 2009

F26 and the Golden Mean

Posted by Lily under Federalist | Tags: , , , |
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F26 continues Publius’s argument against restraining the federal government’s ability to provide for the national defense (principally by means of maintaining a standing army). He focuses in this essay on how the Constitution provides checks and balances within the federal government itself, which he argues are sufficient in and of themselves to restrain the army’s power—thus, no need to restrict such power by tipping the balance of federalism more towards the states.

I haven’t thought a lot about the connection between the Constitution’s checks and balances and the Aristotleian concept of the Golden Mean, but F26 draws the parallel pretty explicitly. The first paragraph mentions that war (specifically, in this case, the Revolutionary War) rarely gives rise to moderation in the public mind. “That happy mean” between “the energy of government” and the “security of private rights” is a “delicate and important point.” And war is a blunt instrument. It is bound to land us too far on one side or the other of the delicate balance. Publius offers a scary anti-vision where the USA bounces from one failed Articles-of-Confederation-like governmental structure to another, and then to another (as he puts it, “one chimerical project to another”), never actually settling in the felicitous middle.

Aristotle says that the virtues are those qualities which are warped by either deficiency or excess.  E.g. courage: someone who lacks all courage and constantly runs away is a coward, while someone who fears nothing is rash.  In this way the virtue of courage depends on a “mean” between two extremes.  (See Nichomachean Ethics, Chapter 2.)  Similarly, F26 seems to argue that if we have too little governmental power on the one hand, our social contract breaks down, and we may as well dispense with the states and nations completely and govern on the county level. The evils of the other extreme, too much governmental power, hardly need to be described, since the audience has only recently emerged from a war against what they perceived to be absolute monarchy. Constitutionally forcing Congress to re-evaluate military funding every two years, Publius argues at length, strikes the perfect balance in the standing army debate, because “it is impossible that the people could be long deceived; and the destruction of [a project to undermine the civil government] would quickly follow the discovery.”

It’ll be fun to watch future Federalist Papers for other instances of such “golden means” being struck by the proposed Constitution.  No question the ancient Greeks were a big influence on the Founding.

 

December 5, 2009

The federalism of privileges and immunities

Posted by Andrew under constitutional law, law | Tags: |
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It is conventionally understood that the Supreme Court’s Slaughterhouse decision destroyed the most straightforward route with which Congress could protect the fundamental rights of American citizens: the 14th Amendment’s privileges and immunities clause.  The Supreme Court decided Slaughterhouse in 1873, shortly after the states ratified the 13th, 14th, and 15th Amendments.  To protect rights after Slaughterhouse, goes the conventional understanding, Congress had to resort to the far less straight-forward vehicles of the commerce clause (as in the 1964 Civil Rights Act); and courts had to invent substantive due process (as in Lochner and Roe).  (I’ve tacked the amendment’s first section over to the right for reference.)

Indeed, if a federal legislator wants to destroy Jim Crow, that legislator would surely prefer legislating with a Constitutional provision forbidding any state laws that “abridge the privileges or immunities of citizens of the United States”; rather than with (as in 1964) a clause allowing you to “regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”  Alas, Slaughterhouse squashes Constitutional common-sense reasoning; you must put aside the knife to carve a turkey with scissors (themed analogies).

I re-acquainted myself with that problem recently.  Several amicus briefs for McDonald v. Chicago, the gun-rights incorporation case up this term, argue that the 14th Amendment’s privileges and immunities clause is the proper avenue for the Court to apply the second amendment to the states, and that the Court should overturn Slaughterhouse.  The Volokh Conspiracy has been aflutter, as many contributors are libertarian minded, gun-right advocating, legal academics.  And then I happened to read, “The Legacy of Slaughterhouse, Bradwell, and Cruikshank in Constitutional Interpretation,” in which Professor Huhn passionately recites the familiar line that “the Court practically eviscerated the Privileges and Immunities Clause of the 14th Amendment.”

At some point, in reading the briefs, that paper, the 14th Amendment, and the Slaughterhouse majority and dissents, I found myself agreeing more with Justice Miller’s Slaughterhouse majority opinion than with the legal academics, and contrarianism is at least worth exploring when it feels right.

How did Slaughterhouse do so much harm?

Critics of Slaughterhouse write that Justice Miller’s wrong result resulted from wrongly distinguishing state and federal citizenship.  Justice Miller, they say, ignored the hierarchy of citizenship that the 14th Amendment created: that, we are primarily federal citizens, and secondarily state citizens.  Then, he placed most fundamental rights – like the freedom to earn an honest living, that was at issue in Slaughterhouse - in the realm of rights deriving from state citizenship, a realm of rights not protected by the 14th Amendment.

From the Heritage Foundation:

The citizenship clause defines both federal and state citizenship, making them not separate as the majority in Slaughterhouse concludes, but one derivative of the other – state citizenship a necessary result of federal citizenship. Accordingly, all of the privileges or immunities one possesses as a federal citizen include the privileges or immunities one gains as a citizen of a state.

From the Cato Institute’s brief in McDonald v. Chicago:

…[the] central error [in Slaughterhouse] is that the Court ignored the Amendment’s underlying premise:  namely, a revolution in federalism that placed national authority over state autonomy and protected a wide array of national rights against state governments.

From Professor Huhn:

[T]he straightforward language of the 14th Amendment … made state citizenship secondary to national citizenship. …Slaughterhouse … turned that unmistakable hierarchy on its head ….

So,  Miller’s misreading of he 14th Amendment’s scheme of citizenship led to his failure to conclude that the 14th Amendment allows the federal government to protect fundamental rights.  Let’s look at the text of the 14th Amendment that Justice Miller so slaughtered:

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.  No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States ….

Justice Miller quite rightly read the 14th Amendment’s distinction of state and federal citizenship.

This is my understanding of the 14th Amendment in regards to citizenships and the privileges and immunities clause:  The amendment begins by addressing the federalism at the heart of the Nation and the struggle at the heart of the then recent Civil War – that we are nationally and locally political beings; and each person (including ex-slaves) is a citizen of the Nation and their state (a direct overturning of Taney’s Dred Scott).

The amendment assures that each U.S. citizen enjoys a threshold of fundamental rights. States can create more rights, but cannot encroach those fundamental rights.  The 14th Amendment does not create a hierarchy of citizenship – a person is both a citizen of her state and of the U.S., and, for purposes of the 14th Amendment, one citizenship does not trump the other.  Finally, the 14th Amendment does not create a federal scheme of enforcement against private behavior; its first and fifth clauses are directed at Congress’s ability to control state action.

The real problem in the decision is that Justice Miller wrongly wrote that fundamental rights derive mainly from state citizenship.  As expanded upon below, I think he did this short-sightedly.   But, contrary to the observers I’ve read, the rights-landscape that Miller created in Slaughterhouse does not destroy the ability of subsequent Justices to base fundamental rights from federal privileges and immunities.

And, importantly, Miller’s distinction of state and federal citizenship is a useful continuation of the slightly mysterious federalist nature (like a holy duality) of the United States that we have pondered since 1787.

Some context…

…is useful, in light of the racist motivations sometimes attributed to Justice Miller’s Slaughterhouse opinion.  (My guess is that a lot of folks confuse the case with Dred Scott.)

The Slaughterhouse Cases resulted from a Louisiana law, descriptively titled, an “Act to Protect the Health of the City of New Orleans, to Locate the Stock Landings and Slaughter Houses, and to incorporate the Crescent City Livestock Landing and Slaughter-House Company.”  The legislation was not innovative—several big cities consolidated slaughtering companies to get their cholera inducing byproduct out of the water supply.

Former Justice John Archibald Campbell argued the case for the Butchers’ Benevolent Association, and did so within a larger legal program to frustrate Radical Reconstruction.  (We mentioned, a while back, Charles Lane’s book on a sibling case, Cruikshank.  Also check Michael Ross’s Obstructing Reconstruction: John Archibald Campbell and the Legal Campaign Against Louisiana’s Republican Government, 1868-1873.)  To cast a deserved shadow on Campbell, note that, in his Justice days, he joined the majority in Dred Scott.

The 13th, 14th, and 15th amendments, among other things, incorporated former slaves into full, American citizenship.  Campbell used the new amendments in his arguments for the(white) butchers – perhaps deliberately overusing the arguments based on the new amendments to water them down, or at least firmly extend their coverage to those not newly enfranchised.  He argued that the slaughtering monopoly resulted in involuntary servitude (banned by the 13th Amendment), and he used every possible bit of the 14th Amendment to argue against the process inadequacy, liberty deprivation, and unequal protection of the Louisiana  statute.

Justice Miller’ s response to Campbell’s arguments, in his Slaughterhouse opinion, insisted that the 14th amendment must be understood in light of the civil war and was primarily written to protect former slaves’ privileges and immunities.  One can easily imagine the decision as an attempt to shut Campbell up.

Justice Miller’s Opinion

Professor Huhn argues that the Slaughterhouse majority rejected the plaintiff’s claim that “the right to earn a living at an honest occupation – although a fundamental right, was not a ‘privilege or immunity of national citizenship’ within the meaning of the 1th Amendment.”  His cite is to the opinion, 83 U.S. 36, 73-74.

On those pages, Justice Miller discussed the first lines of the amendment, and their impact on citizenship.  It seems to me, though, that Justice Miller was endorsing the notion that the amendment corrected Dred Scott.

But it had been held by this court, in the celebrated Dred Scott case, only a few years before the outbreak of the civil war, that a man of African descent, whether a slave or not, was not and could not be a citizen of a State or of the United States. This decision, while it met the condemnation of some of the ablest statesmen and constitutional lawyers of the country, had never been overruled, and if was to be accepted as a constitutional limitation of the right of citizenship, then all the negro race who had recently been made freemen were still not only not citizens, but were incapable of becoming so by anything short of an amendment to the Constitution.

To remove this difficulty primarily, and to establish clear and comprehensive definition of citizenship which should declare what should constitute citizenship of the United States and also citizenship of a State, the first clause of the first section was framed.

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”  …[I]t overturns the Dred Scott decision by making all persons born within the United States and subject to its jurisdiction citizens of the United States. That its main purpose was to establish the citizenship of the negro can admit of no doubt.

Miller then notes that the next paragraph (the privileges and immunities clause), “which is the one mainly relied on by the plaintiffs in error, speaks only of privileges and immunities of citizens of the United States, and does not speak of those of citizens of the several States.”

This section of the opinion does not decide whether the right to earn a livelihood is one based on federal or state citizenship; it simply makes the correct point that the privileges and immunities clause protects a set of rights that are enjoyed by U.S. citizens.

…Of the privileges and immunities of the citizen of the United States, and of the privileges and immunities of the citizen of the State, and what they respectively are, we will presently consider; but we wish to state here that it is only the former which are placed by this clause under the protection of the Federal Constitution, and that the latter, whatever they may be, are not intended to have any additional protection by this paragraph of the amendment.

This conception of distinct sets of federal and state rights does not strike me as a rights-reducing proposition leading necessarily to Jim Crow .  Rather, Miller’s reading creates a federalist scheme of rights wherein states can expand upon the threshold national rights enjoyed by every U.S. citizen.  So, if a state’s population decided to ordain particular freedoms, it could so do; so long as the state does not subtract national privileges and immunities.

Professor Huhn writes that, “[i]n placing state citizenship over national citizenship, the Slaughterhouse Court reflected the view of John C. Calhoun.”  (p4 of the linked copy)  The Calhoun quote that Huhn quotes  is from 1833; Calhoun was discussing the Article IV privilege and immunities clause, and dismissing the notion of federal citizenship.  The Slaughterhouse dissent also picked up the quote.

If by citizen of the United States he means a citizen at large, one whose citizenship extends to the entire geographical limits of the country without having a local citizenship in some State or Territory, a sort of citizen of the world, all I have to say is that such a citizen would be a perfect nondescript; that not a single individual of this description can be found in the entire mass of our population. Notwithstanding all the pomp and display of eloquence on the occasion, every citizen is a citizen of some State or Territory, and as such, under an express provision of the Constitution, is entitled to all privileges and immunities of citizens in the several States; and it is in this and no other sense that we are citizens of the United States.

In Dred Scott, the Court embraced Calhoun’s view of citizenship.  Slaughterhouse clearly divorced the Court from that stance.  So, it cannot be that Slaughterhouse‘s fatal flaw is it’s embrace of Calhounian, state-centric citizenship.  Miller stressed that the 14th Amendment made U.S. citizenship a reality – you are a citizen of the state and of the union; and you carry with you, wheresoever you go among those states, your U.S. citizenship and the federal privileges and immunities.

In its search for a clearly delineated federal set of privileges and immunities, the majority opinion is correct.

Substance, not structure

The Slaughterhouse Cases did not create a structural impediment to federal protection of fundamental rights via the 14th Amendment’s privileges and immunities clause.  The opinion did not reverse the 14th Amendment’s hierarchy of citizenship because the 14th Amendment did not create a hierarchy of citizenship.

Rather than a structural problem, Slaughterhouse presented a substantive problem over just what are federal privileges and immunities.  That problem does not require overturning Slaughterhouse to spur the privileges and immunities clause into action.  Rather, courts can determine that, as says Huhn, “Americans have both the right and the moral duty to protest fundamental injustice anywhere in the United States, because these are matters of national citizenship, not state citizenship.”  (at p7 of my copy)

Justice Field’s dissent in Slaughterhouse was correct in clarifying that the 14th amendment did not create or define any privileges; rather, it “assumes that there are such privileges and immunities which belong of right to citizens as such, and ordains that they shall not be abridged by State legislation.”

But I don’t think the dissent was correct (nor the scholars since) in concluding that the majority confined the federal set of privileges and immunities to those that existed “ before [the 14th Amendment’s] adoption specially designated in the Constitution or necessarily implied as belonging to citizens of the United States.”

Field believed that the majority’s opinion mooted the founder’s work; “that a vain and idle enactment, which accomplished nothing.”  But this forgets Dred Scott, which surely the drafters had in mind when crafting that first sentence.  The majority clearly embraced that purpose.

So, what are the federal privileges and immunities?

This is where the action ought be for scholars and courts: what privileges and immunities have a national nature?  Slaughterhouse did not provide a litmus test for federal rights.  The majority looked at “privileges and immunities” clauses in the Articles of Confederation and Constitution, and in antebellum precedent.  This is where the majority might have seen trees rather than a forest, and where Miller might have let his desire to quash Campbell’s right-to-earn-a-living claim cloud his vision of the larger intended impacts of the 14th Amendment.

The original privilege and immunities clause’s “sole purpose was to declare to the several States that, whatever those rights, as you grant or establish them to your own citizens, or as you limit or qualify or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other States within your jurisdiction.”

Which is to say, treat outsiders at least as well as you do your own.

…the entire domain of the privileges and immunities of citizens of the States, as above defined, lay within the constitutional and legislative power of the States, and without that of the Federal government. Was it the purpose of the fourteenth amendment, by the simple declaration that no State should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government? And where it is declared that Congress Shall have the power to enforce that article, was it intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States?

The 14th Amendment does not transfer rights-protection duties, and I agree with Miller’s hesitancy in establishing the federal government as the sole arbiter of rights.  But he wrongly confines fundamental rights to state citizenship.  It ought, though, to be possible for a Justice to determine that fundamental rights now arise from National citizenship; or, even, that the fundamental right arises from both, and the federal government can enforce against states that deprive citizens of those rights.  Further, the 14th Amendment does not state that the federal government can only protect those privileges and immunities existing after the Civil War.  It seems to me that a privilege might derive from federal-citizenship now that did not in 1877; and that the Court could so find, within the scheme set out in Slaughterhouse.

Justice Miller, somewhat amusingly, looked into certain privileges that had a federal nature at the time of his decision – things like the “care and protection of the Federal government over his life, liberty, and property when on the high seas or within the jurisdiction of a foreign government.”  In 1873, one could argue that was the narrow scope of our fundamental rights; at the time, the concept of incorporation of the Bill of Rights was still formative.  But, as our federalism has evolved, it seems natural that the rights associated with state and federal citizenship would likewise evolve.  There is nothing, anyway, in Slaughterhouse, preventing that.

 

September 23, 2009

Livingston, and dispassionate hyperbole

Posted by Andrew under constitutional law, rhetoric | Tags: , , , |
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As noted a few days ago, Lily’s post on partisan rhetoric brought to mind the antebellic gem of a speech, delivered by Edward Livingston during the heat of nullification debates.  Having now read through most of the speech, I can attest to several themes that make reading the thing entirely worthwhile.

- 40 years after the Constitution went into practice, the leading figures in the Senate, over the period of a couple months, delivered what must have been several-hours-long speeches on the very nature of the Constitutional government.

- The questions of federalism, and the energy of our National government that so split Hamilton’s audience splat also these Senators in 1830, as they split us today.

- Livingston manages to bring us within the passionate debate on the structure of the Union, while providing still poignant warnings against passionate rhetoric.

- And he does that while delivering sometimes hysterical hyperbole.

In the last post, I quoted some of his language on blown-out rhetoric.  Here, I’ll quote his summary of the debate’s heart: nullification.  A few things to note.  Nullification was the notion that a state could basically veto a federal law, which, to then pass, the Nation would then need to ratify as a Constitutional amendment.   That political issue was the manifestation of the debate that raged (has raged) since the Nation’s inception: to what extent are the federal government and state governments sovereign?  Livingston begins this segment with some hyperbole, but I suppose it is deserved hyperbole:

I now approach a graver subject, one, on the true understanding of which the Union, and of course the happiness of our country, depends. The question presented is that of the true sense of that Constitution which it is made our first duty to preserve in its purity. Its true construction is put in doubt—not on a question of power between its several departments, but on the very basis upon which the whole rests; and which, if erroneously decided, must topple down the fabric, raised with so much pain, framed with so much wisdom, established with so much persevering labor, and for more than forty years the shelter and protection of our liberties, the proud monument of the patriotism and talent of those who devised it, and which, we fondly hoped, would remain to after ages as a model for the imitation of every nation that wished to be free. Is that, Sir, to be its destiny? The answer to that question may be influenced by this debate. How strong the motive, then, to conduct it calmly; when the mind is not heated by opposition, depressed by defeat, or elate with fancied victory, to discuss it with a sincere desire, not to obtain a paltry triumph in argument, to gain applause by tart reply, to carry away the victory by addressing the passions, or gain proselytes by specious fallacies, but, with a mind open to conviction, seriously to search after truth, earnestly, when found, to impress it on others. What we say on this subject will remain; it is not an every day question; it will remain for good or for evil. As our views are correct or erroneous; as they tend to promote the lasting welfare, or accelerate the dissolution of our Union; so will our opinions be cited as those which placed the Constitution on a firm basis, when it was shaken or deprecated, if they should have formed doctrines which led to its destruction.

With this temper, and these impressions of the importance of the subject, I have given it the most profound, the most anxious and painful attention; and differing, as I have the misfortune to do, in a greater or less degree, from all the Senators who have preceded me, I feel an obligation to give my views of the subject. Could I have coincided in the opinions given by my friends, I should most certainly have been silent; from a conviction, that neither my authority nor my expositions could add any weight to the arguments they have delivered.

My learned and honorable friend, the Senator near me, from South Carolina, (Mr. Hayne) comes, in the eloquent arguments he has made, to the conclusion, that whenever, in the language of the Virginia resolutions, (which he adopts) there is, in the opinion of any one State, “a palpable, deliberate, and dangerous violation of the Constitution by a law of Congress,” such State may, without ceasing to be a member of the Union, declare the law to be unconstitutional, and prevent its execution within the State; that this is a constitutional right, and that its exercise will produce a constitutional remedy, by obliging Congress either to repeal the law, or to obtain an explicit grant of the power which is denied by the State, by submitting an amendment to the several States; and that, by the decision of the requisite number, the State, as well as the Union, would be bound. It would be doing injustice, both to my friend and to his argument, if I did not add, that this resort to the nullifying power, as it has been termed, ought to be had only in the last resort, where the grievance was intolerable, and all other means of remonstrance and appeal to the other States had failed.

In this opinion I understand the honorable and learned chairman of the Judiciary Committee substantially to agree, particularly in the constitutional right of preventing the execution of the obnoxious law.

The Senator from Tennessee, in his speech, which was listened to with so much attention and pleasure, very justly denies the right of declaring the nullity of a law, and preventing its execution, to the ordinary Legislature, but erroneously, in my opinion, gives it to a Convention.

My friend from New Hampshire, of whose luminous argument I cannot speak too highly, and to the greatest part of which I accord, does not coincide in the assertion of a constitutional right of preventing the execution of a law believed to be unconstitutional, but refers opposition to the unalienable right of resistance to oppression.

All these Senators consider the Constitution as a compact between the States in their sovereign capacity; and one of them, (Mr. Rowan) has contended that sovereignty cannot be divided, from which it may be inferred that no part of the sovereign power has been transferred to the General Government.

The Senator from Massachusetts, in his very eloquent and justly admired address on this subject, considers the Federal Constitution as entirely popular, and not created by compact, and, from this position, very naturally shows, that there can be no constitutional right of actual resistance to a law of that Government, but that intolerable and illegal acts may justify it on first principles.

However these opinions may differ, there is one consolatory reflection, that none of them justify a violent opposition given to an unconstitutional law, until an extreme case of suffering has occurred. Still less do any of them suppose the actual existence of such a case.

 

January 27, 2009

Sanction-monious Hamilton; F21

Posted by Andrew under Federalist | Tags: , |
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Federalist 21 provides our first (or one of the first) direct attack(s) on the Articles of Confederation; namely, the Articles’ failures to establish sanctions against disobedient states or a federal guaranty, and the Articles’ system of states’ contributions to the treasury via quotas.  Perhaps we’ll come back to the guaranty and tax issues.  For now, though, let’s think about sanctions and Article 2 of the Articles of Confederation.

With the buildup to the direct attacks on the present system, I wondered how the Articles would be introduced to the Federalists audience.  It’s interesting, then, that Hamilton unceremoniously brings AoC Article 2 without a general introduction to the Articles.  To be sure, his readers lived under the Articles and needed an introduction as much as we do to the Constitution.  Still, with the history lesson that preceeded this essay, I thought we might get something.   Rather, Hamilton slides in this quote:

Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.

Hamilton brings out Article 2 while bemoaning the inability of states to sanction other states that rang on agreements.  Indeed, he suggests, without mapping it out, that this passage is the sole potential source (“by inference and construction”) of authority for states to “use force against delinquent members.”  On a hunch, the argument goes like this: the Articles of Confederation do not delegate authority to the United States (central government) to sanction disobedient states; thus, the “power, jurisdiction, and right” to enforce interstate agreements lies with each state.  Hamilton, though, presents the notion in order to dismiss it – apparently states were not  sanctioning each other pursuant to the AoC.  

 

The Articles’ have an image problem of being chili without heat – that is the basic setup to any Constitutional history of law course.  Apart from the truth of the presumption, I’m curious if it was a given for Hamilton’s audience.  Or, did the Federalists win a PR battle that set the paradigm for US history courses to come.  

 

Putting aside F21′s argument, I appreciate the essay for reminding me of the similarity between the above noted the Article 2 of Confederacy and the 10th Amendment.

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.

Hamilton’s quick, albeit dismissive, evocation of Article 2–that it can be interpreted, that an important power or right can be teased out–is familiar to today’s reader.  We are quite used to agreeing or disagreeing with the Court’s expansive or restrictive interpretations, often of the initial amendments capped with Number 10.  As such, Hamilton allusion to what I suppose was an existing debate about the boundaries of Article 2′s scope has me wondering: how much pre-Constitutional debate did we have that mirrored Constitutional debate (scope, interpretation, textualism…was there debate over a ‘living’ Articles of Confederation)?

 

July 22, 2003

Posted by Andrew under Uncategorized | Tags: |
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Say the GOP, federalism when convenient

You’ll see examples of this alot (think, federal tort claims regulation)– and Dionne’s opinion article, Defending States’ Rights — Except on Wall Street, has some good language on the intellectual 180s some folks will turn.

States’ rights are a matter of high principle — except when they become inconvenient to some powerful interest group. Then they can be ignored or swept aside.

That lesson, taught over and over, will be put to the test again, perhaps as soon as tomorrow. That’s when the House Financial Services Committee may take up a proposal that would sharply restrict the power of state regulators to oversee the securities industry. The measure, introduced by Rep. Richard Baker, a Louisiana Republican, would prevent state regulators from working independently of the federal Securities and Exchange Commission in seeking structural changes in the way brokerage houses and investment banks work.

…

States may have a lot of rights, but if they embarrass a few Wall Street firms, the power of big government in Washington will be brought in to stop them. So it seems to Spitzer, a Democrat. “The federalism of the Republican Party seems to apply when the issue is the rights of the poor, and they want to leave that to the states,” Spitzer said in an interview. “But when it comes to using power to help their corporate patrons, they bring it back to Washington.”

And to be fair, there are principled Republicans:

Strong words? Some Republicans are also worried about the inconsistencies on display in this battle. “As Republicans, we do believe in states’ rights, state prerogatives and state control,” said Rep. Peter King, a New York Republican who, like Baker, is a senior member of the Financial Services Committee.

Before Congress cuts back on state authority, King continued, “we need very compelling evidence, and right now the evidence goes the other way. It’s state officials who have been cracking down on corporate corruption.”

I point out this story because I hear the tenth amendment states-rights argument all the time. Honestly, I’m a local power guy myself- local government law is certainly the closest we get to direct democracy; and more importantly, acocuntability. But it is difficult, in a three tiered power system (I refer to local, state, and federal) to hold absolutes on wherein the most power shall lie. In my mind, its a case by case discussion. But what really irks me is to hear someone argue for state-power (to further accountability and connection to voters) but then balk at local government power. If one really wants the decision maker close to the voters, put that power in the city hall.

 

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