GU writes:
It is true that, compared to the Articles of Confederation, the Constitutional vision was a more centralized one. We are centralized to a point now, however, that is clearly incompatible with the "goal" of the Constitution.
It is not that we should necessarily be bound by the Founders' vision of the proper degree of federalism, though it should count for something. But many things the Congress/President do today wrt federalism also go against the text and the spirit of the Constitution (as well as the "original meaning" or "original intent").
I think it can be legitimate to interpret the Constitution in a non-originalist manner. For instance, the words "cruel and unusual punishment" in the Eighth Amendment surely would allow some gruesome punishments if we adopted the Founders' meaning of those words. A reasonable reading of the Eighth Amendment can lead one to outlaw some things the Founders would have allowed.
But no reasonable reading of the Constitution can lead to the centralization of our federation that we see today. The Constitution clearly notes that the federal government is one of limited, enumerated powers (Art. I, §8) and clearly reserves all non-enumerated powers to the states or people (Amdt. X).
Courts have largely abandoned meaningful judicial review of federalism, and this is a problem. I read Kling's proposal as one that seeks to obtain the benefits of a rigorous, competitive federalism, but without relying on the virtue of government officials or judicial review to prevent undue centralization of power. A good idea IMO, but our system (pre-New Deal, or perhaps pre-1913) worked pretty well for a long time, so we could also try going back to that as well.
Posted September 18, 2010 10:34 AM
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