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

5 A One-Sided Federalism Revolution: Ignoring the Liberty Side of Federalism

5 a one-sided federalism revolution: ignoring the liberty side of federalism Just as a frustration with the ineffectual response of the states to the Great Depression caused regulators and constitutional lawyers to favor a dramatic expansion of the national government during the 1930s, a frustration with centralized government and its rigid bureaucracies inspired the recent federalism revival and its strengthening of state and local governments. But in addition to this size-of-government concern, there is another side of federalism —the individual liberty side. In the view of the constitutional framers, a vibrant federalism would help ensure individual liberty by limiting and monitoring the power of the federal government to infringe on the liberties of its citizens. Coinciding with the decline of federalism throughout much of the later part of the twentieth century was an intensified judicial review of individual-rights cases, as if the Court was making up for its nonenforcement of the Constitution’s structural provisions designed to protect individual liberty. These structural provisions were intended by the framers to provide a more all-encompassing protection of individual liberty than did the Bill of Rights. However , because of the constitutional compromise of the 1930s, the Court abandoned these structural protections and instead focused its liberty-preserving sights on selected substantive individual rights. History indicates that the Court elevated its scrutiny of individual rights, as well as its creation of new rights, only after it downgraded its scrutiny of structural issues like federalism. Whether this is a causal relationship or simply a coincidental one is perhaps impossible to prove. But the fact that the increased judicial scrutiny of individual rights came on the heels of the Court’s surrender on 102 ■ an entrenched legacy structural provisions is a fact beyond dispute. Therefore, it is logical to expect that the reverse should happen: that after heightening its review of federalism doctrines, the Court should diminish its scrutiny of substantive individual rights. By taking such an approach, the Court could reconnect its jurisprudence with the structural ways in which the Constitution protects liberty as a whole. In effect, this would form the second half of a federalism revolution—a stepping back from substantive individual rights as the only protection of individual liberty. However, this has not yet occurred. Although the Court has strengthened the constitutional role and authority of the states, it has not carried the revolution over into the area of individual liberty . Instead of increasing its reliance on the structural provisions of the Constitution to protect liberty, the Court is still concentrating almost exclusively on the judicial enforcement of substantive individual rights. The Constitutional Compromise As a result of the Court’s acceptance of the New Deal, a constitutional compromise or settlement was reached. In order to sustain New Deal legislation that gave sweeping powers to the federal government , judicial review of federalism and separation of powers issues more or less ended. Congress was given great deference to enact the kind of legislation that would have previously been judged unconstitutional. However, this deference to Congress and the abandonment of the Constitution’s structural provisions, besides allowing the New Deal legislation to pass, also undercut a fundamental requisite of individual liberty. To compensate for this abandonment, the Court either made or acquiesced in a compromise : although it would retreat from reviewing federalism issues, it would intensify its review of individual-rights issues. Larry Kramer calls this the New Deal ‘‘settlement,’’ in which the Court set about to enforce rigorously a selective set of substantive individual rights while deferring to Congress in structural matters, such as federalism and separation of powers.1 Judicial passivity in one area would 1. Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (New York: Oxford University Press, 2004), 219–20. a one-sided federalism revolution ■ 103 be offset by activism in another.2 Thus, a deferential posture in connection with federalism and separation of powers coincided with a new judicial assertiveness in civil liberties cases. As early as 1937, the Court articulated a ‘‘preferred-freedoms’’ approach calling for heightened constitutional protection of individual rights ‘‘so rooted in the traditions and conscience of our people as to be ranked as fundamental.’’3 A year later, in footnote 4 to his opinion in United States v. Carolene Products Co., Justice Harlan Fiske Stone argued that the Court should protect the personal rights outlined in the Bill of Rights more zealously than...