Thursday, July 15, 2004

Thoughts on federalism after the Reconstruction amendments.

The observation that the content of American federalism was fundamentally changed with the inclusion of the Reconstruction amendments (13th-15th) seems to me both compelling and misleading. The argument runs roughly along these lines: the Constitution, as ratified (along with the Bill of Rights) in 1789 created a government defined by separation of powers on two levels: first, between the arms of government (executive, legislative, judicial); second, between the loci of government (state and federal). The Federalist Papers and other documents penned by the founders suggest that the separation of power between the state and federal governments was a core principle of the new American government, designed both to give a decent respect to the sovereignty of the states, as well as to safeguard citizens from tyranny. The Bill of Rights, appropriately enough, applied only as a check on the federal government. Looked at more simply, the Constitution created a federal government whose power was checked in three ways: by the power of the states, by the rights of the people, and by direct limitations placed on each branch.

The Reconstruction amendments—foremost among them the 14th—changed all of that (so the argument runs). The intent of the 14th amendment was to curb the power of the states; to make the federal government more powerful and give it a sort of supremacy over the states. Whatever arguments there may be for state sovereignty, states rights, or the idea of a limited federal government checked in part by the states were seriously undercut by an amendment that placed checks directly on the states, in favor of the federal government.

This doesn’t seem right to me. Indeed, the 14th amendment does place a check on the states, but not in a way that undercuts federalism. Looked at structurally, the Constitution post-Reconstruction does not undercut the federalist system in favor of the federal government, but rather places an additional check on the states in favor of individual rights. I’m not sure if the intent was necessarily to give primacy to the federal government over the states (that is, to lessen the state as a check on the federal government), but jurisprudentially it seems that the 14th amendment has done (and ought to do) nothing to prevent states from placing a direct check on the federal government. Indirectly, of course, this may be its effect: if Congress can pass legislation that protects individuals from, for example, racial discrimination pursuant to the 14th amendment, then certainly states must abide by it. (However, I fail to see how that would be different than the effect of a Federal law in light of the Supremacy clause.) But directly, the purpose and effect of the 14th amendment is to universalize individual rights, enshrined in the Bill of Rights.

This does not undercut federalism. I fail to see how the historical arguments in favor of a robust federalism—insofar as by federalism we mean that state power acts as a check on federal power—are undercut by the Reconstruction amendments. One could, however, make an argument that the 14th amendment creates a more populist government than existed before. Populism may be a check on federalism, but it seems to me that it would only be so in a strictly cultural, and not constitutional, sense.