Today's Politicos vs The Words and Deeds of The Founders
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An Interesting Judgment …

The Supreme Court issued a unanimous decision last week on the rights of an individual in a Federalist system.   The case itself was a mere pretext for arguing this larger issue of an individual’s right to challenge judgments based on unconstitutionality.  The Supreme Court unanimously reversed the Third Circuit Court’s ruling, which would seem to imply that an individual, “does not have standing to raise a Tenth Amendment issue.” The Supreme Court ruled that the interpretation used by the Third Circuit on a case involving the TVA and Tennessee Electric, cannot be construed in such a fashion.

To the extent the statement might instead be read to suggest a private party does not have standing to raise a Tenth Amendment issue, it is inconsistent with this Court’s later precedents and should be deemed neither controlling nor instructive on the issue of standing as that term is now defined and applied.

In Federalists 16 and 17, Hamilton argues that the federal government must have the power to legislate directly – within it’s enumerated powers.  If this is indeed the case, then the individual must also have the right to challenge laws on the basis of Constitutionality.  The justices in this case interpreted the 10th amendment to pertain not merely “vicariously” to the individual through the states, but explicitly to the individual. The individual is not to be denied recourse to the protections of the Constitution.

The individual, in a proper case, can assert injury from gov­ernmental action taken in excess of the authority that federalism defines.

The ruling is worth reading for its elegant prose and clear logic. Here is an excerpt of Justice Kennedy’s reasoning (emphasis WWTFT):

The federal system rests on what might at first seem a counterintuitive insight, that “freedom is enhanced by the creation of two governments, not one.” Alden v. Maine, 527 U. S. 706, 758 (1999). The Framers concluded that allocation of powers between the National Government and the States enhances freedom, first by protecting the integrity of the governments themselves, and second by protecting the people, from whom all governmental powers are derived. Federalism has more than one dynamic. It is true that the federal structure serves to grant and delimit the pre­rogatives and responsibilities of the States and the Na­tional Government vis-à-vis one another. The allocation of powers in our federal system preserves the integrity, dignity, and residual sovereignty of the States. The fed­eral balance is, in part, an end in itself, to ensure that States function as political entities in their own right.

But that is not its exclusive sphere of operation. Feder­alism is more than an exercise in setting the boundary between different institutions of government for their own integrity. “State sovereignty is not just an end in itself: ‘Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.’” New York v. United States, 505 U. S. 144, 181 (1992) (quoting Coleman v. Thompson, 501 U. S. 722, 759 (1991) (Blackmun, J., dissenting)).

Some of these liberties are of a political character. The federal structure allows local policies “more sensitive to the diverse needs of a heterogeneous society,” permits “innovation and experimentation,” enables greater citizen “involvement in democratic processes,” and makes gov­ernment “more responsive by putting the States in com­petition for a mobile citizenry.” Gregory v. Ashcroft, 501 U. S. 452, 458 (1991). Federalism secures the freedom of the individual. It allows States to respond, through the enactment of positive law, to the initiative of those who seek a voice in shaping the destiny of their own times without having to rely solely upon the political processes that control a remote central power. True, of course, these objects cannot be vindicated by the Judiciary in the ab­sence of a proper case or controversy; but the individual liberty secured by federalism is not simply derivative of the rights of the States.

Federalism also protects the liberty of all persons within a State by ensuring that laws enacted in excess of dele­gated governmental power cannot direct or control their actions. See ibid. By denying any one government com­plete jurisdiction over all the concerns of public life, feder­alism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake.

The limitations that federalism entails are not therefore a matter of rights belonging only to the States. States are not the sole intended beneficiaries of federalism. See New York, supra, at 181. An individual has a direct interest in objecting to laws that upset the constitutional balance between the National Government and the States when the enforcement of those laws causes injury that is con­crete, particular, and redressable. Fidelity to principles of federalism is not for the States alone to vindicate.

The recognition of an injured person’s standing to object to a violation of a constitutional principle that allocates power within government is illustrated, in an analogous context, by cases in which individuals sustain discrete, justiciable injury from actions that transgress separation­ of-powers limitations. Separation-of-powers principles are intended, in part, to protect each branch of government from incursion by the others. Yet the dynamic between and among the branches is not the only object of the Con­stitution’s concern. The structural principles secured by the separation of powers protect the individual as well.

Justice Ginsberg concludes by stating:

In short, a law “beyond the power of Congress,” for any reason, is “no law at all.”

Interesting stuff.

1 comment

1 Jeff Edelman { 06.21.11 at 9:44 pm }

Darth Bader Ginsburg says, a law “beyond the power of Congress is no law at all.” With the Supreme Courts’ interpretation of the commerce clause, what law is beyond the power of Congress? Perhaps it doesn’t come into play here, though I can’t see how it wouldn’t, but there is not a mention of the individuals’ sovereignty. With the commerce clause precedent, I’m anxious to see how SCOTUS will rule on ObamaCare.


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