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Diversity is the catchword of our times. To favor it is to be on the
side of the angels. But take notice: the diversity mavens have no use
for pluralism in political jurisdiction. What they want is an almighty
unitary state to enforce their view of diversity, one that
prevents localized experimentation.

That’s one explanation for the liberal outcry against the Supreme
Court’s recent decisions on the relationship between the federal
government and the states. The court is “rewriting the very structure of
our government,” claims Anthony Lewis in the New York Times, wrongly
assuming that most people would be alarmed by this.

In fact, the court is merely permitting the states to recover some of
their lost jurisdictional rights relative to the central government,
with the result of greater legal and political diversity. The step was
very small: the court affirmed that state governments cannot be sued on
the basis of federal law in their own courts. If it were otherwise,
Justice Anthony Kennedy pointed out, the Constitution would have never
been ratified, since this kind of legal attack on states obliterates
their autonomy.

This is a point consistent with federalism, which is not merely an
ideological bent or a legal theory, as media commentators would have it,
but the very substance of the American system. This is clear from the
text that forms the basis of the majority’s opinion, the 11th amendment,
which says, “the judicial power of the United States [singular] shall
not be … prosecuted against one of the United States [plural]. …”

The underlying philosophical assumption is that a free society does
not need to be, and should not be, managed from the top down. The closer
the units of government to the people, the greater the check on the
potential for tyranny. Legal regimes among the states compete for
citizens, and the risk of despotism is thereby reduced. Most important,
sovereign states act as a bulwark against the central government.

The framers of the Constitution regarded themselves as citizens of
their respective states, and these states came together to form a
government with strictly limited functions, among which was not the
right to bind the states with federal labor dictates. Some founders like
Patrick Henry presciently argued that the Constitution didn’t include
enough protections against tyranny. He wanted, among other reforms, the
phrase “We, the People” changed to “We, the States.”

Nevertheless, under the framers’ system, the states comprised
separate political units, with different laws, cultures, religious
populations, and even rights of citizenship. This core federalist
understanding was enforced by the right of secession, which was
understood to be retained by the people in their respective states. The
result was a model of political diversity, in which the president was
largely a figurehead and no tax or regulatory agency had any rights over
the liberty and property of the people.

The U.S. took a terrible turn when it abolished this original idea,
beginning in 1861 and continuing to this day. In fact, if the framers
made a mistake, it was in codifying the existence of a central
government, which all of history has shown will eventually abuse its
power. The Articles of Confederation, which the Philadelphia Convention
overturned, at least didn’t trust a central government to obey the rule
of law.

Today, checks on the federal government are all the more necessary
since the number of states has expanded by nearly four times, and the
geographical space encompassed by the United States is far larger than a
nation-state should be. Ideally, the U.S. would again become a model of
decentralized politics even as its economic and cultural influence
becomes more international.

But somehow the usual suspects put aside their love of pluralism when
it comes to the court. In their view, the only role for the court is to
further centralize the government. It’s tempting to take comfort in the
outrage of liberals at current court trends, but in truth, the recent
decisions, and, in particular Alden v. Maine, come nowhere near
genuine federalism.

The letter and spirit are summed up by the majority: “Congress has
vast power but not all power.” It’s hard to know whether to celebrate
the court’s sudden recognition that the totalitarian state is
impermissible, or to be outraged that such a sentence would need to
appear in an American court decision.

The wording illustrates just how far we’ve slid and how far we have
to go to recapture lost liberties. At minimum, a truly federalist court
needs to strike at the heart of the New Deal, and strip away the power
the central government grabbed in the guise of the commerce clause and
the 14th amendment.

If we are serious about restoring something like the original
Constitution, the whole D.C. pea patch has to be ripped up and plowed
under. Even the centralizing liberals on the court recognize that the
federal government is nothing like what the founding generation
imagined:

“If the framers would be surprised to see states subjected to suit in
their own courts under the commerce power,” writes Justice David Souter
in his dissent, “they would be astonished by the reach of Congress under
the Commerce Clause generally. The proliferation of government, state
and Federal, would amaze the framers, and the administrative state with
its reams of regulations would leave them rubbing their eyes.” Indeed,
imagine “the framers’ surprise at, say, the Fair
Labor Standards Act, or the Federal Communications Commission, or the
Federal Reserve Board. …”

Yes, David, which is precisely why the court hasn’t gone nearly far
enough.

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