WHEN (CONSTITUTIONAL) OPPORTUNITY KNOCKS

The delegates who gathered to write a new constitution in Philadelphia in
1787 recognized that the government previously created by the Articles of
Confederation was too weak to achieve the young nation's ambitious goals.
The Articles gave Congress no direct power to tax, created no national
executive or judiciary, and in general left the national government
dependent on the states. No doubt, the Constitution that emerged generated
a stronger national government. It established the presidency and the
Supreme Court, granted to Congress key powers such as the authority to
regulate interstate commerce, and declared federal law supreme over
conflicting state law. Yet the framers hardly obliterated the states. They
allowed Congress to exercise only those powers enumerated in the
Constitution. As the 10th Amendment states: "The powers not delegated to
the United States by the Constitution, nor prohibited by it to the States,
are reserved to the States respectively, or to the people."

What powers are reserved to the states? Because the constitutional language
is unclear on this point, each time in our history that a crisis has
arisen, one side or the other has been able to invoke states' rights to
question the action of a majority in Congress.

For example, in 1798, Congress adopted the Alien and Sedition Acts,
authorizing forcible removal of persons deemed enemy aliens and the
imprisonment of persons who criticized the national government. Both acts
were the work of the Federalist Party majority in Congress and were
targeted against the rival Democratic-Republican Party.

Were it adopted today, the Sedition Act would be seen as a violation of the
First Amendment. In the 1790s, however, principles of federalism were more
immediately salient. Accordingly, the Virginia and Kentucky resolutions,
authored respectively by James Madison and Thomas Jefferson, condemned the
Alien and Sedition Acts for attempting to exercise powers nowhere
authorized by the Constitution. Jefferson's original draft even asserted
the power of a state to nullify any law that it deemed unconstitutional.

Thirty years later, the theory of nullification was championed by South
Carolina's John Calhoun, in opposition to federal tariffs on
foreign manufactured goods. Later, other Southerners asserted a right of
nullification of proposed antislavery legislation. Eventually, the
Confederate states sought to justify their secession from the Union on the
ground that the federal government had exceeded its authority under the
Constitution.

If the cause of states' rights was tainted by its association with slavery,
the stain was temporary. Indeed, liberal icon Justice Louis Brandeis penned
the most famous argument for federalism. In a 1932 dissent from a case
involving the regulation of ice, Brandeis wrote: "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."

With Congress enacting conservative legislation on issues such as abortion,
marijuana use, and stem-cell research, blue-state liberals are
unsurprisingly rediscovering the virtues of federalism. Opportunistic
invocations of states' rights are, after all, as American as apple pie.