Back to Federalism
The proper remedy for polarization.
Apr 10, 2006, Vol. 11, No. 28 • By DAVID GELERNTER
HOW TO SAVE THE COUNTRY from poisonous polarization, or at least to take a first step? The Constitution's Framers were well aware of the dangers of "consolidation" versus federation. (Consolidation meant abolishing separate state societies in favor of one national society.) The authors of The Federalist knew that each state must be allowed to run its own show. How could this result be guaranteed? By the nature of Congress. Each house (the authors explain) will consist of legislators who represent particular constituencies. The members of such a legislature invariably speak up for their constituents first, the nation at large second. Delaware won't need to worry about the federal government's butting in where it doesn't belong, because Delaware's members of Congress will guard Delaware's interests. "Everyone knows that a great proportion of the errors committed by the State legislatures," writes James Madison in Federalist 46, "proceeds from the disposition of the members to sacrifice the comprehensive and permanent interests of the State, to the particular and separate views of the counties or districts in which they reside." Congress would work the same way; Delaware would have nothing to fear.
The House and Senate do indeed work this way. The Federalist authors were right. What they failed to foresee was the transformation of the Supreme Court into a third chamber, a U.S. version of Britain's House of Lords in its heyday, with unelected members who serve for life and do not represent constituencies.
We used to have a Supreme Court; today we have a House of Justices, not a Supreme Court but a Supreme Council, which dominates the two other branches. No wonder the nation goes temporarily haywire whenever a vacancy opens up.
While Britain has gradually reduced the Lords to impotence, America has gone the other way, allowing the Supreme Court to increase its power. And incidental details lend the analogy disturbing resonance. The architectural and ceremonial accouterments of the Supreme Court make it seem like an uppermost chamber--those tony robes, that fancy building that has never (unlike the Capitol and the White House) been trampled by a good old-fashioned American mob.
Yet the Court never used to be as important as it is today. Many educated people can't say who was chief justice under Lincoln or during the Second World War, or who wrote the Dred Scott decision, or when the Supremes moved into their gorgeous white temple. Previous generations rarely saw bitter, polarizing fights over Court nominations, not merely because the nation was less polarized; because the Court itself was less important. The nation has just got through a fight over Samuel Alito. He was confirmed, as he should have been. Conservatives worked furiously on his behalf to defeat frantic liberal efforts against him. But few on either side pointed out that the whole fight (as well as previous Democratic Borkings and attempted Borkings) was bizarrely off key: Supreme Court nominations were never supposed to matter this much.
Of course conservatives must fight to put the best possible conservative judges on the Court. But they have another and higher duty: to put the Court in its place; to abolish the self-created, all-powerful House of Justices.
Federalism has been losing ground ever since FDR hugely expanded the scope and power of the central government in the 1930s and '40s, and segregationists used states' rights as a weapon against integration in the 1950s and '60s. Modern conservatives are likely to complain about court-ordered damage to democracy, not to federalism. And of course it's true that, when unelected judges override elected legislatures, democracy loses.
But an era where deep and fundamental moral questions divide the nation is in need of a revival of federalism. Federalism supplies the expansion joints that make America supple rather than brittle; make it a bridge that can ride out hurricanes without falling to pieces, that can sustain enormous twisting, turning, and tearing forces without cracking.
HOW CAN THE NATION beat back the courts' attack on federalism? We could choose some issue the federal courts have appropriated, hand it back to the states, and forbid the federal courts ever to touch it again. That would be a first step. But what mechanisms to use, and what issue to choose?
There are two possible mechanisms: a constitutional amendment, and congressional legislation limiting the federal courts' jurisdiction. The Constitution gives Congress explicit power to limit the Supreme Court's jurisdiction (Article III, section 2) and plainly implies that Congress may also define and limit the jurisdiction of lower federal courts. In recent years several writers (Ramesh Ponnuru in National Review, for instance) have pointed out that congressional legislation is a legitimate, plausible approach to controlling out-of-control federal courts.