- The Washington Times - Tuesday, October 2, 2001

Many years ago, I took an undergraduate course on the Supreme Court. Reading several dozen decisions convinced me of two things. First, I had zero aptitude for the law a conclusion amply and emphatically confirmed by my LSATs, which I took mostly as a favor to my law school bound friends (somebody has to be at the bottom). Secondly, I developed a healthy skepticism regarding what is known in the trade as legal reasoning. Far too often, it seemed, the opinions of the justices reflected both the Supreme Court's will to power and an almost willful confusion, a shady reluctance to be honest about what they were doing, and why.
Robert F. Nagel's "The Implosion of American Federalism," a study of the Supreme Court's rulings on the relationship between the Beltway and the 50 states beyond, revalidates that long-ago cynicism. Mr. Nagel, a law professor at the University of Colorado, has produced a book that is at once scholarly and engaged. Sometimes it is too scholarly. The reader unfamiliar with the cases he critiques must either dredge them up or stay content with a general sense of the themes.
Still, that sense is worth having. For Mr. Nagel's position is that federalism as the Constitution envisioned it is dying, and that the Supreme Court, for reasons of its own, won't save it. The case he makes is compelling.
In the Founders' schema, the federal government was not automatically bad, and the states (and subdivisions thereof) not automatically good. The goal of federalism was to limit the national government's power by imposing intermediate structures between that government and the people. As with the architecture of the federal government itself, there would be some clear separations of powers. But in other instances, powers would overlap, and the conflicts thereby engendered would both confine the federal government and limit the centrifugal tendencies of the states.
No more. Today, in Mr. Nagel's apt phrase, the nation is "imploding toward the center" … and generating new centrifugal forces in the process. It's no longer a matter of balance, but of which force implosion or explosion will ultimately prevail.
How did it come to this? There are three reasons. First, the 20th century witnessed an accelerating and self-sustaining accretion of power to Washington. Some powers derived from transient responses to the emergencies of depression, world war and Cold War, proving that, in government, there's nothing quite so permanent as the temporary. Second, much came because of the progressive (or, if you prefer, "do-gooder" or "social engineer") desire for reform: a desire that took national uniformity as both sine qua non and a desirable condition in its own right. Too often, "state's rights" had provided spurious justification for too many ills, and effective opposition to too many remedies.
And third, the federal government found a dandy all-purpose justification for its own expansion in the Constitution's "interstate commerce" clause, which gives the feds the "right" to deal with items that "substantially affect" interstate trade. Whether the Founders ever intended the clause to be used to support federal mandates of "gun-free school zones" or the prevention of violence against women may be debated.
Today, the federal assumption of power (and constitutional significance) seems virtually complete, with state and local governments reduced to mere administrative entities. The Supreme Court has by and large acquiesced, and indeed done its best to further the consolidation. Mr. Nagel adduces the usual reasons concerning the Supreme Court's reformist desires. But his dissection of the various cases reveals two other causes. One, of course, is the Supreme Court's self-protective instinct. Since its only power lies in the willingness of the other branches to enforce and the people to abide by its decisions, the Supreme Court rarely admits it was wrong. But more important is the nature of the country the Supreme Court has talked itself into believing it serves.
And thus the gravamen of Mr. Nagel's indictment. The Supreme Court has not merely declined to preserve federalism, it has tried to take the place of the states as an alternative locus of meaning. It has used the expansion of the other branches of government to do so. And, no matter who sits on the Supreme Court, it practices the "jurisprudence of fear" the fear that without its power, the nation will come apart. In the end, all the Supreme Court's legal reasoning comes down to the belief that politics the fine art of kvetching and tolerating and demanding and conceding in a process that never ends is now too dangerous to allow. Without the Supreme Court, and the rest of the federal government to control us, we would … Do what? Kill each other? Ethnic cleanse ourselves into separate enclaves for different races, sexual orientations, genders? Or maybe discover that our problems get solved, or at least handled better when we do it ourselves?
And that, according to Mr. Nagel, may well be the Supreme Court's greatest fear; that like so much else in government, the justices now spend their time struggling to fix problems that they themselves have caused, and that we may be catching on.

Philip Gold is a senior fellow of the Seattle-based Discovery Institute.


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