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Federalism: the founders' design.

Federalism: The Founders.' Design.

Raoul Berger. University of Oklahoma Press, $16.95. Berger began his scholarly career with an insightful study of the history of impeachment, moved on to a provocative book on the Fourteenth Amendment, and has now turned to the subject of federalism. This latest work, however, lacks the plausibility of a good legal brief, failing to pass what lawyers call "the straight face test' (i.e., could you get up in court and make this argument with a straight face?).

Berger's view of federalism is unusual, to say the least. Like Calhoun, he contends that matters of inherently state and local concern are absolutely beyond federal regulation. Very little that the federal government has done since Roosevelt would pass muster under Berger's test.

Even the least controversial of nineteenth century legislation is too much for Berger. For example, he argues that the Supreme Court erred in 1903 when it upheld congressional power to ban the interstate transportation of lottery tickets. Congress has no right to interfere with "WINGO!.' Presumably, federal narcotics laws are equally unconstitutional. And, not one to shrink from the unpalatable consequences of his thesis, Berger expressly states that federal food and drug laws are unconstitutional. Protection of public health is, after all, traditionally a matter of state concern. Therefore, he reasons, it is none of the federal government's business, for the founders, he says, "sought to preserve an independent, "inviolable' sphere of action' for the states.

Berger argues that the Fourteenth Amendment, which he views as very limited, did not change the importance of state sovereignty. He fails to recognize, however, that his vision of sovereignty died on the fields of Gettysburg, well before the Fourteenth Amendment was proposed. To win the Civil War, Lincoln had to go far beyond the narrowly circumscribed powers Berger allows the federal government.

Given Berger's view of the Constitution, the South probably had the right to secede. After all, the Constitution does not expressly deprive them of this right, nor does it give the federal government any express power to oppose them. This argument was made by President Buchanan. Luckily, Berger wasn't around to advise President Lincoln to surrender Fort Sumter.

Given his unswerving devotion to original intent, Berger would probably not shrink from the conclusion that every law passed since 1860 was unconstitutional. There is something admirable about his willingness to follow an idea wherever it leads, even to the point of total absurdity. But it is this passion for consistency that separates Berger from the Framers he so admires. They were intensely practical men, whose highest goal was not abstract consistency but good government. They would have been appalled at Berger's fanaticism, as they disapproved all deviations from balanced good sense.

The idea that the Framers have important things to tell us about the meaning of the Constitution is not a monopoly of the Meeses and Bergers. For those of us who continue to attach some importance to the views of the Framers, however, this book is a considerable embarrassment.
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Author:Farber, Dan
Publication:Washington Monthly
Article Type:Book Review
Date:Sep 1, 1987
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