- The Washington Times - Monday, June 9, 2003

Federalism conceived and celebrated by the Founding Fathers is praiseworthy, not flawed. But Alabama Attorney General Bill Pryor, a nominee to the U.S. 11th Circuit Court of Appeals, has been assailed for his salutes to federalism by liberal detractors of President George W. Bush’s judicial selections. Undistorted by its opponents, federalism ranks with judicial review as a constitutional jewel. It is a reason for the Senate to confirm, not to reject, Mr. Pryor’s nomination.

Federalism judiciously mixes national and state sovereignties. Where uniformity is urgent to safeguard national security, interstate or foreign commerce, or fundamental individual rights, national standards or authorities prevail. The federal government, for instance, uniquely fights wars, concludes treaties, and regulates the currency. With regard to individual rights and civil liberties, the Bill of Rights, with untroubling exceptions, equally arrests the national government and the states.

State sovereignty over traditional local matters was embraced for multiple reasons. The science of government is the science of experiment. Political wisdom is more likely to be discovered through experiments in 50 different state laboratories than by lead-footed trial and error in one national laboratory. State experimentation, moreover, is less risky than a national gamble. A progressive icon, Justice Louis D. Brandeis lectured in New State Ice Co. vs. Liebman (1932): “To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the nation. It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”

Brandeis’ political insight has been corroborated by pioneering state initiatives across a wide policy front: unemployment insurance, workers’ compensation, punitive damages caps, HMO liability, right-to-die legislation, welfare reform, victims’ rights, Megan’s laws, and stiff sentences for career criminals.

State experimentation is frustrated when Congress enacts a nationwide rule, whether within or without its constitutional authority. Statesmanship thus militates in favor of congressional deference unless states have been proven unfit to address or correct an evil. The latter circumstance is exemplified by the 1964 Civil Rights Act and the 1965 Voting Rights Act, both necessary to overcome a century of odious racial discrimination. Similarly, last month in Nevada Department of Human Resources vs. Hibbs (May 27, 2003), the Supreme Court, speaking through Chief Justice William H. Rehnquist, sustained the Family and Medical Leave Act of 1993 as a reasonable congressional measure to correct and to forestall unconstitutional gender stereotyping.

Nominee Pryor fully appreciates that federalism is not a throwback to the states’ rights days of the 1960s with white oppression of blacks symbolized by Selma, Ala., Sheriff Jim Clark’s cattle prods and Birmingham Police Chief Bull Connor’s hoses turned on peaceful civil rights demonstrators. The Alabama attorney general was instrumental to the convictions of Ku Klux Klansmen Bobby Frank Cherry and Thomas Blanton Jr. for the 1963 bombing of the 16th Street Baptist Church in Birmingham. His enforcement of the Voting Rights Act has been impeccable despite its unprecedented encroachments on state sovereignty. Mr. Pryor has explained: “Federalism is not about a return to the Articles of Confederation nor the Confederate States of America. Federalism is not a devotion to state sovereignty at the expense of federal responsibility to promote the free flow of interstate commerce and individual liberty.”

The greatest danger to liberty is an inert people. Federalism is a splendid antidote. The more distant the government, the less involved the citizenry. The time, expense and difficulty of participation climb logarithmically as the controlling government authority moves from local to state to national. Federalism thus presumptively favors grass roots over national decisionmaking to cultivate citizen watchdogs educated in the arts of self-government, i.e., the peaceful and informed advocacy of legislation before lawmakers and fellow citizens.

Robust state and local governments also serve as training fields for national leadership and greatness, just as the playing fields of Eton prepared the way for victory at Waterloo. And they compete among one another in good government. Citizens and businesses will flock to those jurisdictions that are fiscally responsible and socially enlightened.

The Constitution’s greatest champions were Federalists who coveted a strong, but limited federal government; its opponents were anti-Federalists, the voice of states’ rights dogmatists. President George Washington’s administration was Federalist. His appointments to the United States Supreme Court were Federalists. The Federalist Papers brilliantly explain and defend the Constitution, including its federalism feature. In Federalist 51, James Madison elaborates: “In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time each will be controlled by itself.” And Thomas Jefferson insisted that state governments were the most trustworthy custodians of civil liberties.

The Founding Fathers would be proud of Mr. Pryor’s federalism advocacy and vision. His detractors on that score are either uninformed or misguided.

Bruce Fein is a founding partner of Fein & Fein.

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