Legal Commentary

The New York Times ran a story yesterday that interests me both as a federalism fan and as a popular constitutionalist -- the revival of the Tenth Amendment as a popular rallying cry. "Tenthers" argue that the SCOTUS's doctrine of enumerated powers has given Congress powers far in excess of what the text demands and the the People need to take back this excessive centralization through rallies, state legislative resolutions, and general hell-raising. As an example, consider the recent South Dakota law declaring that the federal regulation of firearms is invalid if a weapon is made and used in South Dakota. South Dakota's law is part of a growing assertion by state legislatures that they can exempt themselves from federal laws regulating the environment, firearms, and health care, all apparently motivated by the theory that "the rights of states which have been carelessly trampled by the federal government for decades."

I confess that I am skeptical that these professed lovers of federalism are anything but federalism's fairweather friends: To believe that these guys really love federalism, I need to read that Tenthers have rejected constitutionally questionable centralization that produces outcomes they like. Has any conservative Tenther, for instance, denounced extension of Heller to the states and defended Chicago's right to regulate guns free from an expansive reading of the 14th Amendment? The congressional regulation of home-made firearms certainly seems to approach the limits of Article I's necessary and proper clause -- but so does the SCOTUS's overturning of state and local gun regulations unconnected to racial bias or, more generally, majoritarian prejudice that lies at the heart of the 14th Amendment.

To my surprise, one can find an occasional conservative who will denounce imposition of Second Amendment limits on the states as a violation of their own pro-federalism principles. This sort of principled embrace of a federalism canon of constitutional construction cheers my heart, but I find such honest support for federalism surpassingly rare. So I ask whomever reads this blog to assuage my doubts: Can you point me to professed fans of decentralization who are willing to embrace subnational power even when it hurts their pet political causes? Any "Left" federalists who reject Roe or "Right" federalists who denounce the SCOTUS's decision in Gratz or an expansive reading of the incorporated takings clause? If you readers post the hyperlinks to such written evidence of principled federalism in the comments below, then we'll have created on Prawfsblawg a little "federalism roll call of honor" -- a list of the few, the proud, the non-pretextual supporters of decentralization. I suspect that the list will be very short, but make my day: Prove my suspicions wrong that pro-federalism rhetoric is a lot of empty blather.