Customer Reviews

Federalism, the Supreme Court, and the Seventeenth Amendment: The Irony of Constitutional Democracy

5 star:		(1)
4 star:		(0)
3 star:		(0)
2 star:		(0)
1 star:		(0)

 

 

Since 1992 the Supreme Court has engaged in a federalism revolution by using textual and non-textual constitutional arguments to limit federal power in favor of states. Rossum argues that this judicial attempt to police federalism boundaries is illegitimate because the 17th Amendment fundamentally altered the concept of federalism as originally designed. Rossum demonstrates that the founders understood that exact definition of federal power was impossible because of the changing necessities of time. Rather than entrust the Supreme Court to define federalism's boundaries, the founders created a constitutional structure that would police the exercise of federal power. This structure rested primarily upon the fact that the state legislatures elected senators. After explaining these original points, Rossum examines the actual practice of the Senate in the first congress and how it protected state prerogatives during consideration of the Bill of Rights, the Judiciary Act, and the Bank bill. After examining the pre-Civil War practices and understandings, Rossum turns to the 70+ year process of adopting the 17th Amendment. Finally, Rossum sums up the study with an examination of the federalism revolution and how it attempts to do the impossible: breathing life (federalism limits that are indefinable) into a corpse (constitutional federalism).

I think Rossum's book is wonderful for a few reasons. One is that it demonstrates again the historical naiveté of originalists who focus on 1787 without considering the impact that subsequent constitutional developments have upon that original structure. Another is that it helps illuminate the importance of constitutional changes that are often viewed as nothing more than minor corrections. And, while not involved in this study, I think it is interesting that Justice Scalia was originally the first person to propose to Rossum that the 17th Amendment altered the federal structure; given the fact that Scalia has joined in the federalism decisions (with one exception), we have to question his intellectual commitment to federalism.

While I agree with most of Rossum's criticisms, I do have a problem in one area. Generally, I think Rossum hits the nail on the head in regards to the 14th Amendment, the commandeering cases, and the state sovereign immunity doctrine; however, I'm not convinced as to the Commerce Clause. The first three are all based on non-textual or, worse, directly contrary to text and history and thus are illegitimate, at least according to conservative constitutionalists. But the Commerce Clause is a textually delegated power and, as such, it is subject to judicial interpretation in the same way that limits on that power in the Bill of Rights is. While Rossum is correct that Chief Justice Marshall relied upon structure to limit the powers of the federal government, even he recognized that if a law fell outside of federal power it would be unconstitutional.

The final irony of this story is that the Seventeenth Amendment "intended to promote democracy, even at the expense of federalism, has been undermined by an activist Court, intent on protecting federalism, even at the expense of the democratic principle." (p2).