Fidelity to Federalism

Article excerpt

Byline: Bruce Fein, SPECIAL TO THE WASHINGTON TIMES

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. …