An Entrenched Legacy: How the New Deal Constitutional Revolution Continues to Shape the Role of the Supreme Court

2 At the Heart of the Revolution: The Constitution’s Structural Provisions

2 at the heart of the revolution: the constitution’s structural provisions Federalism and Separation of Powers The most important governing structures created by the Constitution are federalism and separation of powers.1 Indeed, the republican system of government created by the Constitution rests upon the twin foundations of federalism and separation of powers as its foundation. Referred to as structural provisions of the Constitution , both federalism and separation of powers encompass an array of clauses and articles that together create an organizational scheme of government. Federalism refers to the distribution of power between two different levels of government that represent the same constituency. Under the dual governmental structure established by the Constitution , power is balanced between the states and the national government .2 While federalism designates some activities as inherently local and outside the control of the federal government, it envisions other activities as national and hence outside the realm of state regulation. Although its purpose was to create a strong national government, the Constitution also sought to preserve the independent integrity and lawmaking authority of the states.3 This bifurcated system of power was codified in the Tenth Amendment, which divides sovereign power between that delegated to the federal 1. Charles Black, Structure and Relationship in Constitutional Law (Baton Rouge: Louisiana State University Press, 1969), 10–11. 2. See Younger v. Harris, 401 U.S. 37, 44 (1971) (suggesting that the constitutional scheme envisions a federal structure in which states are equal partners with the national government). 3. Akhil Reed Amar, Of Sovereignty and Federalism, 96 Yale L. J. 1425, 1466 (1987). 28 ■ an entrenched legacy government and that reserved to the states.4 As an additional safeguard of federalism and limited government, the Ninth Amendment was envisioned by the framers as creating a rule of construction limiting the interpretation of federal powers.5 Thus, while the Tenth Amendment reserves all nondelegated power to the states, thereby prohibiting the national government from exercising undelegated powers that infringe on the lawmaking autonomy of the states, the Ninth Amendment commands that those federal powers actually enumerated in the Constitution be narrowly interpreted . According to the framers’ view of federalism, the national government would exert supreme authority only within the limited scope of its enumerated powers; the states meanwhile would exercise the remainder of sovereign authority, subject to the natural restraint of interstate competition from other states.6 The framers believed that by protecting the pre-existing structure of state governments the Constitution could safely grant power to the national government, since the former would independently monitor the latter’s exercise of that power.7 Similar to the way in which the colonial governments had mobilized opposition to oppressive acts of Parliament, the state governments would serve as vigilant watchdogs against abuses committed by the federal government.8 In creating a system of dual sovereignty between the state and federal governments, the framers ‘‘split the atom of sovereignty’’ by designating two different political entities (federal and state), ‘‘each protected from incursion by the other.’’9 This federalism scheme creates a structure in which a wide array of diverse communities can co-exist under a single national government. For instance, one of the benefits of federalism is that people of different views can 4. Id. at 1492. 5. James Madison, Speech in Congress Opposing the National Bank (February 2, 1791), in James Madison, Writings, 480, 489 (Jack N. Rakove, ed., 1999). 6. H. Pryor, Madison’s Double Security: In Defense of Federalism, the Separation of Powers, and the Rehnquist Court, 53 Ala. L. Rev. 1167, 1175 (2002). 7. See G. Wills, Explaining America: The Federalist (New York: Penguin Books, 1981), 108–11. 8. See, e.g., The Federalist No. 26, at 172 (A. Hamilton). 9. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 838 (1995) (Kennedy, J., concurring). at the heart of the revolution ■ 29 gather in different states with different policies and priorities. Hence, federalism supports and accommodates the wide diversity of American society. As Professor Steven Calabresi explains, federalism has served as a vital ingredient of America’s constitutional democracy: It prevents religious warfare, it prevents racial warfare. It is part of the reason why democratic majoritarianism in the United States has not produced violence or secession for 130 years, unlike the situations, for example, in England , France, Germany, Russia, Czechoslovakia, Yugoslavia , Cyprus, or Spain. There is nothing in the U.S. Constitution...