Graglia, Lino, Harvard Journal of Law & Public Policy
Government--organized, legitimized coercion--presents a dilemma. On the one hand, government is necessary to obtain certain benefits, such as the creation and enforcement of property rights that are essential to the efficient use of resources. On the other hand, giving some individuals organized power over others is very dangerous. Power, the ability to command and enforce obedience, is not good for the soul; it seems inevitably to lead to an exaggerated appraisal of one's wisdom and goodness as compared to those qualities in others. Power expands ego, and ego yearns for more power, with the result that government tends inexorably to grow far beyond what justifies its existence and therefore to limit human freedom unnecessarily.
Because government is dangerous, we should have no more of it than necessary and strive to make what we must have as little dangerous as possible. The only way this can be done is by making it effectively democratic, that is, subjecting it in a fairly direct and immediate way to popular control. Three of the ways in which the American system as it now operates can be made more democratic are the decentralization of policymaking, the adoption of measures of direct democracy, and most importantly, the limitation of the policymaking power of judges.
I. DECENTRALIZATION OF POLICYMAKING
Government can be made more responsive to the popular will by keeping the policymaking unit closer to the people. As a matter of simple arithmetic, the smaller the policymaking unit, the fewer the number of people who will be discontented by any policy choice. Individual freedom means leaving policy choices with the individual; if a choice must be removed from the individual by government, individual freedom is served to the extent that it is removed no farther than necessary.
We should therefore resist the centralization of government power and favor decentralization absent a strong showing of efficiency or other losses. We cannot, however, expect to be helped in this regard by the Supreme Court.(1) The division of government power is not something that can be made a matter of judicially enforceable law. Because policymaking power is not a physical thing that can be divided into separate areas or spheres, there cannot be two legally defined independent power centers in a single polity; dual sovereignty is a contradiction in terms. The power to regulate interstate commerce, for example, necessarily includes--in fact, is not distinguishable from--the power to regulate things that affect interstate commerce.(2) It will therefore necessarily conflict with or impinge upon the power to regulate commerce that may not be considered "interstate" and things that may not be considered "commerce." When conflicts occur, the sovereign is the lawmaker whose policy will prevail.
Because everything affects interstate commerce to some degree, the question in every case challenging a purported exercise of the commerce power is whether the regulated activity affects interstate commerce enough to justify national regulation and the consequent lessening of local autonomy. This is a policy issue, and there is no reason to think that it is better left to courts than to elected representatives. More broadly, when the people want a policy issue--for example, assisted suicide--to be decided at the national rather than the state level, it is hard to see why the federalism issue--the appropriate limits on federal power--should be decided according to the preferences of federal judges. The judges' claim that they find the answer in the Constitution will here, as elsewhere, be fictional. Congressional power has undoubtedly grown far beyond original expectations, but there is much to be said for the notion of a "living Constitution," a Constitution adaptable to new circumstances, when the effect of a doctrinal change is not to expand but to loosen constitutional restraints-to relax the grip of the hand of the dead--and the adapting is done not by judges but by elected representatives. …