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Politics : Politics for Pros- moderated

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From: LindyBill	4/17/2005 6:24:55 PM
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THE RETURN OF "THE CONSTITUTION IN EXILE" [Ramesh Ponnuru] nationalreview.com Jeffrey Rosen has an article on an alleged movement to use the federal courts to undo the modern regulatory state. I'm not sure the movement adds up to as much as Rosen thinks it does; and I think he's mixing up distinct issues. Justice Scalia is an unlikely hero of the article because he rejects the idea that the due process clause protects economic liberty--but the fact that Scalia is willing to impose restrictions on the scope of the commerce-clause powers of the federal government should suggest that these are different issues. Rosen presents Michael Greve, the head of the "Federalism Project" at the American Enterprise Institute, as a major figure in the "movement." "One of Greve's goals at the American Enterprise Institute is to convince more mainstream conservatives that traditional federalism--which is skeptical of federal, but not state, power--is only half right. In his view, states can threaten economic liberty just as significantly as the federal government. He is still exercised by the lawsuit brought in the 90's by 46 states against the tobacco companies, which resulted in a $246 billion settlement." Now I understand and sympathize with the pressure to simplify issues in the interests of brevity. But this strikes me as a bit of a caricature. Greve's argument is that "traditional federalism"--the traditional understanding of the courts and the political culture generally had about federal-state and state-state relations--prevented the federal government from intervening in areas properly left to the states but also kept states from legislating extra-territorially in ways that infringed on other states' rights or on inherently national matters. His argument is that the tobacco deal violated the compact clause of the Constitution--one of its state-government-limiting provisions. The point is not that state infringements of economic liberty are per se constitutionally suspect--it's that a particular class of state governmental actions may conflict with the Constitution's federalism. Rosen's piece ends on a note of skepticism, but hardly bitter opposition, toward the libertarian legal thinkers about whom he is writing

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