The evolution of constitutional federalism

Michael Tolley, an asso­ciate pro­fessor of polit­ical sci­ence at North­eastern with exper­tise in com­par­a­tive con­sti­tu­tion­alism, began his Con­sti­tu­tion Day lec­ture on Thursday by quoting former Pres­i­dent Woodrow Wilson from 1908: “Fed­er­alism is the car­dinal ques­tion of Amer­ican con­sti­tu­tional law.”

Tolley’s lec­ture, held in Renais­sance Park, coin­cided with the day com­mem­o­rating the for­ma­tion and signing of the U.S. Con­sti­tu­tion 228 years ago. He exam­ined how the Supreme Court has inter­preted federalism—the bal­ance of power between the fed­eral gov­ern­ment and the states—in its rul­ings, specif­i­cally focusing on the court’s deci­sions under Chief Jus­tice William Rehn­quist (1986–2005) and Chief Jus­tice John Roberts since 2005.

Here are some high­lights from Tolley’s talk:

His­tory lesson
Tolley noted that while “fed­er­alism is an unmis­tak­able thread woven into the fabric of the United States Con­sti­tu­tion,” no pro­vi­sion in the text clearly delin­eates the boundary between the national gov­ern­ment and state sov­er­eignty. While other modern con­sti­tu­tions have detailed these bound­aries, the U.S. Con­sti­tu­tion, he said, is “famously vague” on the nature of this balance.

He said that over the course of Amer­ican polit­ical his­tory, the Supreme Court’s role in fed­er­alism mat­ters has been tied to the polit­ical regime of that era. Between the late 1700s and the early 1990s, the tides shifted between eras of national supremacy and dual federalism.

New fed­er­alism
Tolley said the legacy of the Rehn­quist court was its fed­er­alism rev­o­lu­tion, ush­ered in by a 1992 deci­sion in New York v. United States that rec­og­nized the 10th amendment’s lim­i­ta­tions on the power of national gov­ern­ment to coerce states into ful­filling fed­eral man­dates. The case involved a fed­eral statute requiring states to pro­vide for radioac­tive waste dis­posal or take respon­si­bility for waste made within their bor­ders. The court ruled, in a 5–4 deci­sion, that Con­gress doesn’t have the power to force states to imple­ment regulations.

Another 5–4 deci­sion, this time in United States v. Lopez in 1995, was the first since the New Deal in 1937 to limit Con­gress’ power under the Constitution’s com­merce clause.

“The Rehn­quist court intro­duced some pro­found changes in the bal­ance of power between the fed­eral gov­ern­ment and the states,” Tolley said.

The Roberts court
Tolley argued that the Roberts court has sig­naled its own fed­er­alism rev­o­lu­tion, with a sharper turn on states’ rights and sov­er­eignty. And while it con­tinues the Rehn­quist court’s move­ment in this direc­tion, he said, there have also been “some new and dis­turbing trends as well.”

He pointed to the court’s 2011 deci­sion in Bond v. United States that rec­og­nized that indi­vid­uals, not just states, could have standing to bring cases chal­lenging the encroach­ment of national power on states’ rights.

Later, Tolley described the 5–4 deci­sion in Shelby County v. Holder in 2013 as “the most dis­turbing inno­va­tion that the Roberts court has introduced”—namely, the equal sov­er­eignty doc­trine. The court struck down Sec­tion 4 of the Voting Rights Act, essen­tially nul­li­fying the require­ment for states with a his­tory of dis­crim­i­na­tion to get fed­eral approval for making changes to their elec­tion laws.

“The policy stu­dents in here ought to be really trou­bled by this,” he said. “This is likely to present some very serious prob­lems in years ahead.”

-By Greg St. Martin