BODY AND SOUL OF FEDERALISM

The Supreme Court is wrestling again this term with several cases that draw
a line between the national and state spheres. These "federalism" cases,
usually involving the commerce clause or the 10th Amendment and the
principle of state sovereign immunity, have caused some of the last
decade's most contentious exchanges on the Rehnquist court.

At one level, federalism can be visualized in division-of-labor terms. The
national government is empowered, for example, to regulate interstate
commerce, while the states have long been recognized as enjoying the
authority to protect the health, morals, safety and welfare of the people.

Such a division of labor can be defended on efficiency grounds, that is, as
a structural arrangement assigning responsibilities to governments based on
their ability to carry out tasks effectively and/or to maximize the
satisfaction of citizen preferences. The late Justice Hugo Black defended
this "balancing-of-interests" principle with considerable vigor.

Pursuit of material comfort and general equality, and the interconnection
of both with globalism, combine to create considerable pressure for
assigning more tasks to the national government. If the object is to
facilitate economic growth and pervasive equality, national superintendence
of the economy and lifestyle decisions seems rational.

The federal government's authority to regulate interstate commerce has for
several decades been interpreted as the power to protect the national
economy and, according to Justices Stephen Breyer and John Paul Stevens,
anything connected to it, including education and sexual assaults.

In short, if Americans abstract from traditional "quality of life"
considerations, or just diminish the weight they give them, they become
vulnerable to appeals based on the utility of national oversight of an
increasing range of activities.

Restrictions on the interstate delivery of wines to private parties by some
states, an issue taken up by the Supreme Court in early December, could
easily be attacked as barriers to beneficial economic activity. Texas
officials had to confront a similar argument recently in a case involving
Dow Chemical's challenge to the state's labeling requirements.

A single labeling requirement certainly makes it easier for companies to
market their products more profitably for themselves and more cheaply for
consumers than 51 requirements. To say this argument resonates with people
in hot pursuit of comfortable preservation is an understatement -- and this
exposes the dangers to the federal system today.

Whether the issue is state regulation of imported wines or of lifestyle
decisions, practices that heighten the status of the states within the
constitutional system are coming under increasing attack in the name of
efficiency and/or equality.

Significantly, the importance of preserving the states as independent
political entities charged with overseeing many of the people's day-to-day
affairs was fully appreciated by leading Founders like James Madison. In
fact, a person does not have to be a proponent of state sovereignty or a
defender of the excesses associated with the old "states rights" movement
to believe good things can happen when important powers are reserved to the
states.

A persuasive "quality of life" argument can be made for reserving a major
role for the states in our constitutional system. Leaving important
responsibilities with the states provides the American people with many
opportunities to become "big fish in little ponds." Civic engagement
fosters traits (e.g., collaboration, self-restraint, compassion, political
literacy, etc.) essential to a decent as well as competent democratic
order. In addition to promoting good civic virtues, decentralized
decision-making improves the likelihood governmental decisions will address
the real (not just perceived) needs of the people.

In short, federalism is good for the soul as well as the body. This is not
to say local or state officials, or the people themselves, may not make bad
choices. Nor is it to say the Constitution should not set any outer
boundaries to state action. It does mean, however, that the benefits of
giving states and localities the chance to make important choices very
likely will outweigh the costs of the Founders' decision to divide power
among as well as within governments.

To be sure, it can be difficult to assign tasks to local, state and federal
agencies. The court faces such a difficulty in Ashcroft vs. Raich, a case
involving a clash between the Controlled Substances Act and California's
Compassionate Use Act that permits seriously ill Californians to use
marijuana for medical purposes on the advice of their physicians.

While the supremacy clause and a broad reading of the power of Congress to
regulate interstate commerce might counsel a ruling that the federal law
trumps California's measure, prudence or "political wisdom" suggests
entrusting to the people of the states fairly wide discretion to establish
reasonable rules for health, morality and lifestyle issues.

Variations in rules on these matters, as with physician-assisted suicide,
might have some "costs," but they are not unbearable. And the benefits for
our democratic nation can be considerable.

It is not far-fetched to argue that preserving the bona fides of the
federal system is critically important to ensuring a high quality
democratic order in the United States.

While judicial officials are not empowered to make policy, they clearly are
positioned to point the country in a healthy direction when competing
appeals to the Constitution are not easily resolved by bright-line
principles. This kind of judicial "statesmanship" is needed in cases
involving the federal system to preserve the American republic as a model
of civilized democracy for the rest of the world.