Two recent events should be sobering for those of us who are committed to the Founders' vision of federalism, or, with deference to Professor Heather Gerken, "federalisms." (1) The first is the Supreme Court's decision to uphold most of the Affordable Care Act. (2) The second, of course, is the outcome of the recent election. Both demonstrate the basic failure of the strategy of trying to restore constitutional limits by concentrating exclusively on federal elections and Supreme Court appointments. In reality, no Congress or President is likely to do much to restore constitutional limits on federal power. Furthermore, any efforts of the Supreme Court will be marginal, at best.
I propose a better way of restoring federalism, one that has generated much discussion at the state level but really has not made its way into the national consciousness. This better way of restoring federalism centers on the ability of states, and particularly state legislatures, to amend the Constitution to rein in a runaway central government. (3) Consider the debates over the ratification of the Constitution during the period from 1787 to 1790. Two arguments were at the heart of the case against the Constitution from those who opposed it.
The first argument was that the Constitution granted too much power to the federal government, which could lead to abuse of that power. (4) The second argument was more subtle but ultimately proved more prescient: Even if the Constitution, when honestly, fairly, and objectively read, did not give the federal government excessive power, ambitious and clever people would nevertheless twist its language to justify the seizure by the central government of enormous power, regardless of the understanding of those who wrote and ratified the instrument.
Advocates of the Constitution responded in four ways to these arguments. First, they emphasized the limited scope of the authority given to the federal government. This sentiment is exemplified by James Madison's famous statement that "[t]he powers delegated by the proposed Constitution to the federal government are few and defined." (5) Madison's statement was not just campaign rhetoric: When one examines the Constitution's grants of power against the background of eighteenth-century usage and jurisprudence, it is clear that for the most part these powers were fairly well-defined. The phrase "regulate commerce," for example, was understood to mean governing activities such as mercantile trade, navigation, cargo insurance, and imposing certain tariffs. But, as Randy Barnett, I, and others have documented, it did not include such activities as manufacturing, most insurance policies, or health care. (6)
Second, advocates of the Constitution listed explicitly activities that the federal government could not regulate and that would remain within the exclusive jurisdiction of the States. These included local business, agriculture and other forms of land use, real estate titles and inheritance, local government, tort law and other aspects of civil justice among people in the same state, criminal law, religion, education, and social services (7) The Constitution's advocates sold the document to the ratifying public precisely by representing that such activities were outside the federal sphere. (8) One concept must be made clear: Everyone understood even then that there were close interrelationships between the activities reserved to the states and the activities subject to federal regulation. For overriding and very good reasons, though, certain matters were left out of federal jurisdiction.
The third response of the Constitution's advocates, after some hesitation, was to promise a Bill of Rights. (9) The fourth--the most germane here--was that Article V gave the States substantially unilateral power to adopt amendments, which the States could do if the federal government proved oppressive. (10) In other words, the Founders saw the amendment procedure as more than a way of responding to changed circumstances. …