Conservatism, centralization, and constitutional federalism

Paradoxically the Court in its interpretation of the Fourteenth Amendment has adopted a rigid position, but one which rests on very dubious constitutional grounds. It has, in the main, sought to constitutionalize matters that are best resolved in the political arena, thereby assuming an approach ill-suited to accommodate the values associated with subsidiarity. The modern Court's reluctance to trust the common constituents on such a wide variety of concerns affecting their communities and quality of life reflects the same rigidity as earlier Courts that adhered to constitutional federalism. Whereas, however, the earlier Courts exercised largely a negative function, the modern Court issues positive commands that have the effect of law.

If the foregoing analysis is essentially correct, what conclusions seem warranted? From our perspective, one seems paramount: Conservatives would do well to reassess their approach to the issues surrounding federalism, in large part because, unlike political federalism, constitutional federalism does not have the capacity to embrace principles that would strike to the heart of the concerns associated with centralization. Concretely, and contrary to what many suppose, constitutional federalism does not embrace the subsidiarity principle. Nor can the subsidiarity principle "operate" effectively within the confines of constitutional federalism. These considerations point to the compelling need for a strategic revision in conservative thinking about the nature of American federalism; a revision sanctioned by the teachings of The Federalist, and vital, if the evils of centralization are to be remedied or prevented.

1. The Federalist (Indianapolis, 2000), 198. The page references within the parentheses in the text are to this edition. 2. U.S. v. E.C. Knight Co., 156 U.S. 1 (1895). 3. Hammer v. Dagenhart, 247 U.S. 251. 276 (1918). 4. Schechter Poultry Corporation v. United States, 295 U.S. 495, 547 (1935). 5. U.S. v. Lopez, 514 U.S. 549, 554 (1995). 6. For the best defense of constitutional federalism and critique of Court's decisions that supported political federalism, see Raoul Berger. Federalism (Norman, Okla., 1998). Berger, who originally supported the New Deal policies, came to have second thoughts, arguing that the New Deal programs encroached upon the residual sovereignty of the states. While support for this position, as we have remarked, is to be found in The Federalist, the weight of its argument, in our judgment, inclines towards the political federalism model. 7. Harry V. Jaffa, "The Case for a Stronger National Government," in A Nation of States (Chicago, 1963), 115. Jaffa's position shows how the extension of national powers can go under the banner of national security. As we indicate in our discussion. Publius was not unaware of this line of reasoning. How far one should go in situations of national emergency or danger is, of course, a matter of prudence, not constitutional prescription. 8. United States v. Lopez, 514 U.S. 549, 559 (1995). 9. Robert Nisbet. Quest for Community (San Francisco, 1953), 89. Nisbet subscribes to the view of Alexis de Tocqueville regarding the dangers of centralization. 10. Nisbet, 45, 11. Bertrand de Jouvenel, On Power (Indianapolis, 1993), 396. 12. Jouvenel, 388. 13. Jouvenel, 415. 14. Wilhelm Roepke, The Moral Foundations of Civil Society (New Brunswick, 1996), 109. 15. For a good deal of my analysis here I am drawing upon Professor Ken Grasso's splendid, but as yet, unpublished article. "The Common Good, the State and the Principle of Subsidiarity in Catholic Social Thought." 16. From the papal encyclical. Quadragesimo Anno, quoted in Grasso, 10. 17. Ibid. 18. Ibid. 19. To cite one complexity: When necessary the subsidiarity principle would call upon the national government to assist and help mediating institutions in fulfilling their unique functions. The question arises, particularly in light of the well meaning "Great Society" legislation that has had the unanticipated effect of undermining the family structure, what policies or measures would constitute genuine help? 20. For an excellent treatment of the Court's encroachment on the Framers' republican design, see: Lino A Graglia, "How the Constitution Disappeared." Commentary (February, 1986).