Close but No Cigar: A Reply to Professor Graglia
King, T. Kyle, Harvard Journal of Law & Public Policy
Doubtless readers of the recent roundtable discussion on The Revitalization of Democracy from the Nineteenth Annual National Student Federalist Society Symposium appearing in these pages (1) found much to admire, as I did, in the contribution of Professor Lino A. Graglia. In Revitalizing Democracy, (2) Professor Graglia makes a number of cogent points in defense of his preference for decentralizing policymaking, his suspicions regarding judicial review, and his cynicism with respect to the supposed "conservatism" of Republican appointees to the United States Supreme Court. I shall not dwell upon the myriad and obvious ways in which the ideas expressed therein are sound. I would, however, like to offer a few thoughts upon certain areas of disagreement concerning matters that are not trivial. Adopting the approach taken by Justice Scalia in his dissent from the Court's decision in Planned Parenthood v. Casey, (3) I will preface each critique with a quote from Professor Graglia.
"[D]ual sovereignty is a contradiction in terms." (4)
On this point, Professor Graglia's criticism is clear enough. Ultimately, one sovereign must have the final say. Nevertheless, in declaring dual sovereignty to be an impossibility, he overstates his case, in effect saying that there can be no such thing as federalism. While there is a natural and inevitable tension in any political system of separated powers, the question of which entity is truly sovereign only arises when the limits of each power are unclear. Federalism can work if the spheres of national and local power are sufficiently defined, as they are under the United States Constitution. The Tenth Amendment (5) provides a clear delineation of national and local power by declaring the reservation of any and all powers not explicitly delegated. The question of whether the national government has the power to do something or to deny a State the power to do it is answered easily enough; one has but to look to Article I, Sections 8 and 10. (6) If a power is not listed in one of those two places, it is retained. One must then look to the state constitution and statutes to determine whether the people have delegated the power to the state government or reserved it to themselves. The historical failures of dual sovereignty in practice notwithstanding, the theory of the Constitution is, like that of Christianity, sound when actually followed.
Even a cursory reading of the Constitution demonstrates that most of the powers delegated by Article I, Section 8, are perfectly clear. There is very little room for argument over what constitutes levying a tax, (7) or establishing a bankruptcy code, (8) or raising an army. (9) The only provisions that could plausibly support interpretations that would allow federal power to overlap with state power are the interstate commerce and "elastic" clauses, but even these provide clear restraints. The latter is limited by the phrase, "all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers," (10) which makes it a gap-filling provision, not a charter for expansionism. (11) Suppose, for instance, that I have been authorized to drive from Atlanta to Birmingham. Suppose also that this authorization further provides that I might drive anywhere "which shall be necessary and proper for carrying into execution the foregoing authorization." Under this latter clause, I would also be authorized to drive to Douglasville, Bremen, and Anniston, all of which lie between Atlanta and Birmingham along 1-20. I could not, however, plausibly interpret that grant of additional power as a warrant for driving to Oxford, Nashville, or Charlotte. As for the interstate commerce clause, (12) if its language is not limitation enough, which it ought to be, despite such patently absurd decisions as Wickard v. Filburn, (13) then let the States do what Messrs. Madison, Jefferson, and Calhoun contemplated: nullify acts of Congress which overstep the Constitutional grant of authority. …