In today’s post- Lilly Ledbetter oral argument, the Supreme Court of the United States took up a challenge to one of the most fundamental elements of our constitutional system, our national character. This is not some esoteric legal issue. The question before the court was about whether or not Congress can limit the power of the courts to the exercise of delegated powers. This is not an esoteric legal issue.
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For over 200 years the Supreme Court has recognized that it is through the checks and balances that our system of checks and balances safeguards our national character. In The Federalist Papers, James Madison stated, “Men are naturally apt to give their personal opinions, both positive and negative, freely, to the public in a session of Congress.” Madison saw this as the power of ideas, or the power of popular speech, or both. He further noted, “The happiness of a country is oftentimes dependent, much more importantly, on the capacity of its representatives to control and moderate the passions of the people.”
Naturally, we expect our federal government to value the freedoms of speech and religion, the press, the right to peacefully assemble and petition the government for change. But what if the government does not view itself as bound by any of these principles? Suppose, for example, the Supreme Court ordered a mandatory redistricting plan for the states, because the Supreme Court deemed the plan to discriminate against certain classes of citizens. Would the lawfulness of that mandate be challenged by the members of the legislature? That is the issue before the Supreme Court today.
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There are two main theories on the definition of federalism, both grounded in the ideas of individual rights. The more traditional understanding of federalism is nothing more than a set of general principles that limit the national government in some way. For instance, the theory of federalism states that the federal government has limited powers, so that the national legislature cannot overrule the decisions of the Supreme Court. The second theory of federalism is based upon the idea that the federal government possesses all powers necessary for it to effectively carry out the enumerated powers enumerated in the Constitution. It therefore follows that the citizens have no legitimate claim to the powers reserved to the States or the People.
The problem with the second argument is that those powers are not enumerated in the Constitution, so they do not exist. As Alexander Hamilton stated in the Federalist Papers, “The national character is too complex to be written in the constitution of a country.” In order to understand the appropriate scope of national character, one must look beyond the Constitution, at the nature of representative government and the nature of national citizenship.
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The nature of national character is determined by the number and diversity of the individuals who make up a community – regardless of their colors, creeds, religion, or political beliefs. A majority of citizens, whatever their religious beliefs, are apt to view the affairs of other citizens in a religiously neutral manner. This means that the citizens generally do not have a viewpoint different from the majority. In order to exercise their constitutional power of protection under the guarantee of the rights of the citizens, the majority must have a similar degree of religious belief. Religious minorities, who cannot easily join with other minorities, will find it extremely difficult to protect their rights under the guarantee of the national character.
One of the most important benefits of federalism is the separation of government and religion. The Framers of the Constitution thought that religion was important in preventing tyranny. The separation of government and religion ensures a higher standard of moral behavior, as citizens will respect the religious views of others and exercise their constitutional right to vote according to their own religious beliefs, if they choose.
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The final argument presented against the constitutional authority of the federal government is that the Constitution itself contains numerous words that imply federalism. For instance, the preambunctive clauses refer to the general nature of the government or the national legislature, and the operative clause clearly says that the national legislature is supreme over the other branches of government. Because the Constitution contains no express mention of a national flag, it would be difficult to argue that national citizenship is granted by any implication of federalism. Another argument against the viability of federalism is that there is nothing in the Constitution which gives any right to the states to restrict their citizens from worshiping as they wish. The fact that the majority of states have adopted a variety of codes, giving rights to their citizens regarding religion, does not mean that the Constitution actually gives them such a right. It may be argued, however, that the framers intended the Fifth and Sixth Amendments to grant certain rights to the states by way of incorporation, rather than implying it by the very use of the words.
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