Federalism: the founders' design.

Federalism: The Founders' Design

by Raoul Berger (Oklahoma, 223 pp., $16.95)

RAOUL BERGER's Federalism: The Founders' Design is indispensable reading for those conservatives who have long felt that the national government has unconstitutionally intruded upon the reserved powers of the states but who were not quite sure of their grounds. Indeed, this short work makes the best constitutional case for the states'-rights position we have. Berger performs an invaluable service by directly challenging certain currently accepted constitutional interpretations, particularly those of Edward Corwin, whose premises ineluctably lead to the conclusion that our Founding Fathers bequeathed us a unitary, rather than a federal, system.

Berger is not unmindful of the fact that critics of his conception of constitutionalism, with its reliance on "original intention,' will--much as they have done with regard to his monumental work on the Fourteenth Amendment --dismiss his arguments by asking why we should be bound down by the "dead hand' of the past. His answers --which show how his approach relates to the rule of law, "government by the consent of the governed,' as well as to time-honored practices of constitutional interpretation--are set forth in an appendix and in both the opening and concluding chapters. Suffice it to say, they do expose the intellectual shabbiness of the judicial-revisionist position as championed, for example, by Justice Brennan. (Readers interested in pursuing some of Berger's best work on original intention may also wish to turn to his Selected Essays on the Constitution, recently published by the James River Press in cooperation with the Center for Judicial Studies.)

Berger's starting point for understanding the character of our Union is an inquiry into the status of the several states before the adoption of the Constitution. In challenging the widely held view, advanced by Justice Story in his influential Commentaries, that the "national [government] was established first and the states were its creation,' he presents an impressive array of evidence that after the Declaration of Independence the states were considered independent sovereignties, not merely constituent parts of one united nation. For instance, he notes, the independence and sovereignty of the states was not only "writ large on the face of the Articles of Confederation,' it was also recognized in the Treaty of Paris with Great Britain (1783), which expressly acknowledged the states as "sovereign and independent.' Moreover, the ratifiers in the state conventions, even the strongest nationalists among them, recognized "pre-existing state sovereignty.' James Wilson, in presenting the case for the proposed Constitution at the Pennsylvania ratifying convention, explained the "task' confronting the Constitutional Convention in terms of framing a government for "13 independent and sovereign states.'

Berger's conclusions in this respect lend considerable credence to the proposition that what emerged from the Philadelphia Convention was not a system of national supremacy, but one of "dual sovereignty.' In fact, as he shows, there is incontrovertible evidence to the effect that this "dual sovereignty' view was almost universally accepted at the time of ratification. Such clearly was Madison's view when he wrote in the Federalist that the national authority extended only to "certain enumerated objects,' leaving "to the several States a residuary and inviolable sovereignty over all other objects.' Even Hamilton, in selling the Constitution, embraced this position, stressing that the states retained "certain exclusive and very important portions of sovereign power.' In sum, the state and national governments were conceived of as having relatively separate spheres of authority, each being sovereign within its own sphere; an understanding that, Berger observes, was even reflected in Marshall's decision in McCulloch v. Maryland and that prevailed, for the most part, well into this century, until the Court ratified the New Deal.

To put this in other terms, what constitutional scholars, following Corwin's lead, have called "dual federalism' --i.e., the doctrine that the scope of the express powers of the national government is constitutionally limited by the reserved powers of the states-- is, for Berger, just plain federalism. On Berger's showing, the Tenth Amendment only reiterates in no uncertain terms the basic constitutional principle of dual sovereignty; that is, within the states' sphere of inviolable sovereignty reside the "police' powers to protect the health, safety, and morals of their citizens, and the authority to regulate primarily intrastate or local concerns. It is, he adds, with this understanding that one must view the "supremacy clause' and its bearing on the question of state-national jurisdiction: This clause confers supremacy only on laws made in "pursuance of the Constitution,' i.e., those which do not intrude upon the constitutionally protected sphere of state sovereignty.

How, then, has it come to pass that federalism, for all intents and purposes, is dead? Berger deals only summarily with the most frequently cited culprit, the Fourteenth Amendment, pointing out that its legislative history does not sanction extensive intrusion into the states' reserved powers. He concentrates, instead, on the general-welfare and commerce clauses to trace the causes of federalism's demise.

In short, he finds that the constructions given both these clauses by modern courts are incompatible with the "original design' because they conduce to "unlimited federal power' without any allowances for the "inviolable domain' or residual "sovereignty' of the states. For instance, national authority since New Deal times has extended to matters that have only an "indirect' effect on interstate commerce, and, through the "scholastic reasoning' against which Justice Frankfurter inveighed, the Court has found scarcely any activity, no matter how local in nature, not to have some impact, no matter how remote, on interstate commerce. In this fashion, a national "police' power has emerged that intrudes upon the states' sovereign domain. To make matters worse, in recent decades the Court has reversed the "burden of persuasion': It is now incumbent on the states to show that federal laws unconstitutionally curtail state powers, a task that is virtually impossible given the Court's expansive construction of national powers.

Berger realizes that most of what has been done cannot be undone; that "overruling decisions cannot restore the status quo ante.' However, he does hold out the prospect that works such as this might eventually persuade the Court to mend its ways. It is his hope that, rather than simply ratifying whatever emerges from the political process, the Court will henceforth uphold the Constitution against further encroachment on the states by Congress. Only an amendment to the Constitution, he insists, can legitimize a further intrusion into the states' realm of sovereignty.

Berger's analysis and solution bring to mind Madison's observations in 1821 concerning the maintenance of the proper division of authority should Congress, "backed and even pushed on by a majority of their constituents,' seek to encroach upon the states' legitimate domain. In such a case, Madison wrote, "nothing within the pale of the Constitution but sound arguments and conciliatory expostulation addressed both to Congress and to their constituents' would suffice to maintain the proper boundaries. Certainly Berger's book is a step in this direction. However, if Madison is right, there is a compelling need to go far beyond these constitutional considerations and to make a convincing case that honoring inviolable portions of state sovereignty will protect and advance the values and goals, such as liberty and justice, marked out in the Preamble of the Constitution. This is the case that remains to be made, if federalism is to be resurrected.