Conservatism, centralization, and constitutional federalism

Again, if this seems too abstract or theoretical, we need only recall the justifications for the national government setting speed limits for automobiles, a function traditionally regarded as well within the province of the states' police powers. The issue at stake was the preservation of fuels that were regarded as essential for our national defense. Likewise, it was possible for some to argue at the height of the "Cold War" that an effective civil defense, one that would minimize the impact of a nuclear strike, necessitated, interalia, the national government dictating zoning laws and promulgating material and structural minimums for buildings with the end of securing neighborhoods "self-sufficient for survival purposes." (7)

This consideration leads to what would seem to be an insurmountable obstacle in implementing constitutional federalism, to wit, the Court would have to articulate a test or tests that could effectively delineate when the national government has "overreached" its legitimate realm. The difficulties in this are illustrated in the long history of the Court's interpretation of the Congress's commerce power, the power most frequently used to expand the domain of national authority. To recur to our previous discussion, Can the "direct/indirect" test be refined to a sufficient degree in all circumstances such that its application is not arbitrary or such that the decisions flowing from its application do not bear the characteristics of ad hoc determinations, lacking any fixed guidelines or principles? Could tests of this kind be fashioned with the precision and clarity necessary for members of the political branches to understand the limits of their powers? The lack of such tests, of course, is a major reason why modern Courts have, in the main, subscribed to the model of political federalism.

This analysis points up as well the great difficulty associated with the political federalism, namely, there are no recognized limits to the powers of the national government. In effect, Congress becomes the judge of its own power relative to the states. Again, to recur to our previous survey of the commerce powers, the line of reasoning that supports the federal Gun-Free School Zone Act of 1990 knows no limits. That reasoning, as Chief Justice Rehnquist observes in the Lopez case, would give Congress the authority to "regulate not only all violent crime, but all activities that might lead to violent crime, regardless of how tenuously they relate to interstate commerce." He concludes, in effect, that in the absence of any constitutional limitations on the commerce power--i.e., the state of affairs in the paradigm of political federalism--the Congress could assume "a general police power of the sort retained by the States." And this, as he points out, would mean "that the Constitution's enumeration of powers does not presuppose something not enumerated, and that there never will be a distinction between what is truly national and what is truly local." (8)