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Consolidation

  • William J. WatkinsJr.

Abstract

The contours of the federal system, with its division of legislative sovereignty, are hardly visible as one surveys the modern governmental landscape. If Madison and Jefferson could return today, they would most likely conclude that we had abandoned the Principles of ‘98 for the British form of government. A look at the U.S. Code or a federal appropriations bill would convince them that Congress, like the British Parliament, has the authority to legislate on all subjects.

Keywords

National Government Hate Crime Equal Protection Indian Tribe Foreign Nation 
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Notes

  1. 3.
    James Madison, Notes of the Debates in the Federal Convention of 1787 (New York: W.W. Norton & Company, 1987) pp. 190–1. See also, Madison, supra, p. 164 (James Wilson of Pennsylvania observing that “[t]he State Legislatures … by this participation in the Genl. Govt, would have an opportunity of defending their rights”).Google Scholar
  2. 8.
    See Larry Kramer, “Putting the Politics Back into the Political Safeguards of Federalism,” 100 Columbia Law Review 215, 268–78 (2000).Google Scholar
  3. 11.
    See John Taylor, Construction Construed, Constitutions Vindicated (New York: Da Capo Press, 1970) (1820) p. 171 (stating that collisions between the national and state governments “are natural and certain, and must have been foreseen by the framers of the constitution”).Google Scholar
  4. 12.
    See Declaration of Principles of the National Progressive Republican League, January 21, 1911, in 2 Henry Steele Commager, ed., Documents of American History (New York: Appleton-Century-Crofts, Inc., 1958) p. 240 (calling for direct election of senators); The Progressive Party Platform, August 5, 1912, in 2 Commager, supra, p. 254 (same).Google Scholar
  5. 13.
    For a discussion of the forces behind direct election of senators, see Ralph A. Rossum, “The Irony of Constitutional Democracy: Federalism, the Supreme Court, and the Seventeenth Amendment,” 36 San Diego Law Review 671, 704–15 (1999);Google Scholar
  6. Jay S. Bybee, “Ulysses at the Mast: Democracy, Federalism, and the Sirens’ Song of the Seventeenth Amendment,” 91 Northwestern University Law Review 500, 538–49 (1997).Google Scholar
  7. 17.
    ABA Task Force, The Federalization of Criminal Law (Washington, D.C.: American Bar Association, 1998) p. 2.Google Scholar
  8. 26.
    Federalist No. 11, p. 50 (Alexander Hamilton) (Bantam Books, ed., 1982); see also Joseph Story, A Familiar Exposition of the Constitution of the United States (Lake Bluff, Ill.: Regnery, 1986) pp. 140–1 (“The power ‘to regulate foreign commerce,’ enabled the government at once to place the whole country upon an equality with foreign nations; to compel them to abandon their narrow and selfish policy towards us; and to protect our own commercial interests against their injurious competitions.”).Google Scholar
  9. 51.
    See Henry J. Abraham, Freedom and the Court: Civil Rights and Liberties in the United States (New York: Oxford University Press, 1988) p. 42;Google Scholar
  10. Raoul Berger, Federalism: The Founders’ Design (Norman, Okla.: University of Oklahoma Press, 1987) pp. 160–1;Google Scholar
  11. Jeffrey Rogers Hummel, Emancipating the Slaves, Enslaving Free Men: A History of the American Civil War (Chicago, Ill.: Open Court, 1996) pp. 297–302; Civil Rights Cases, 109 U.S. 3,22 (1883).Google Scholar
  12. 53.
    See Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (Princeton, N.J.: Princeton University Press, 1997) pp. 24–5; see alsoGoogle Scholar
  13. Paul Craig Roberts and Lawrence M. Stratton, The Tyranny of Good Intentions (Roseville, Cal.: Forum, 2000) p. 13; In re Winship, 397 U.S. 358, 382 (1970) (Black, J., dissenting) (“For me the only correct meaning of that phrase is that our government must proceed according to the ‘law of the land’—that is, according to written constitutional and statutory provisions as interpreted by court decisions.”).Google Scholar
  14. 55.
    See Allgeyer v. Louisiana, 165 U.S. 578 (1897) (first major Supreme Court decision to use substantive due process to strike down a state law). For a general discussion of the development of substantive due process, see 2 Ronald D. Rotunda and John E. Nowak, Treatise on Constitutional Law: Substance and Procedure (St. Paul, Minn.: West Group, 1999) pp. 569–95.Google Scholar
  15. 60.
    Stephen B. Presser, Recapturing the Constitution: Race, Religion, and Abortion Reconsidered (Washington, D.C.: Regnery Publishing, Inc., 1994) p. 161.Google Scholar
  16. 72.
    See John Hart Ely, “The Apparent Inevitability of Mixed Government,” 16 Constitutional Commentary 283 (1999) (observing that the message of substantive due process “is clear: government by the people may be an ennobling myth, but sometimes the people get it wrong, and as the reflective elite element in our lawmaking system, the justices must keep them within the bounds of what is acceptable to the reasoning class”); Larry Cata Backer, “Disciplining Judicial Interpretation of Fundamental Rights: First Amendment Decadence in Southworth and Boy Scouts of America and European Alternatives,” 36 Tulsa Law Journal 117 (2000) (arguing for a return to constitutional black letter law). But see Laurence Tribe and Michael C. Dorf, On Reading the Constitution (Cambridge, Mass.: Harvard University Press, 1991) p. 66 (arguing that judges must make substantive value choices).Google Scholar

Copyright information

© The Independent Institute 2004

Authors and Affiliations

  • William J. WatkinsJr.

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