abortion-ban opponents - who generally favor expansive government power in other areas, I think - aren't big on commerce-power limits, while anti-abortion types, who include many self-described federalists, don't want to discuss the issue in this context.Which is true enough. Nonetheless, federalism is something I wish liberals would take seriously. Glenn links to an article he wrote with Dave Kopel which discusses the possible applicability of United States v. Lopez to the partial birth abortion law that was around in 1997. They concluded then that there were good reasons to think that the Supreme Court may well strike down a partial birth abortion law on Article 1 grounds - no power is delegated to the Congress to regulate abortion. Which is, in fact, true as nails.
It used to be that states were the, um, States. Pretty much all the power was there. The federal government was originally one of very limited, delegated powers, by design. There was a bill of rights, but it applied only to the federal government, not the states. The states could, for instance, establish a church (many did).
Over time, power has been accreted into the center from the periphery. This has been a boon to liberals in many ways; for instance, only the federal government had the fiat power to stop slavery. (If you read the 13th amendment, you can see the grant of power in words: "Congress shall have power to enforce this article by appropriate legislation.") And over time the Constitution has been "incorporated" against the several states - meaning, that the Bill of Rights and other limiting amendments apply to state government as well as the federal government. So it would no longer be possible these days to establish a church in any state.
Especially in the wake of the incorporation doctrine, I think there is an opening for liberals to reconsider their attachment to centralism. Rights - the limits on government - are centralized, and will remain that way. But illiberal regulation is also, currently, centralized, courtesy of the New Deal. Of course the regulatory state is what a lot of liberals actually want; these should part company with real liberals and just call themselves socialists. But when I talk about state's rights, I very frequently get this response: what about the federal destruction of segregation? Don't we need centralized rights-enforcement?
Well, I don't think we do - rights enforcement starts with individuals and certain is OK if delegated up, but that's not necessary. Nonetheless, there are cases (as in desegregation) where central power is helpful. In that particular case, the central power helped to create the problem it was solving - but don't mind that. If you take the know-nothing view that race history started with Brown v Board of Education, then centralism "worked".
Still, even if we accept that rights should (or will) be centrally enforced, that still doesn't mean we should do everything via a central government. In particular most of the regulatory colossus is not about rights-enforcement; it's about the commerce clause read absurdly large. If we returned to original intent on the commerce clause, then a lot of laws (and whole agencies) would fall. But it still would not be as wrenching a social change as was desegregation. Reynolds and Kopel talk about that in their paper:
Undoing sixty years of wrongly decided cases (and a few from prior years) regarding the interstate commerce power is just as legitimate as the Court's earlier undoing of many decades' worth of wrongly decided equal protection cases. It is true that there has been substantial reliance, especially by the Congress, on the mistaken Commerce Clause cases. But the Court has already stated that "no one acquires a vested or protected right in violation of the Constitution by long use."[FN67]Yes. Of course, the main argument for restricting the commerce clause is that reading as meaning "the congress can pass any law it wants" is just plain stupid. Reading it that way makes it plain that the government is no longer bound by the Constitution, and the oaths that its agents swear are either meaningless to them, or held in contempt. That's not the way it was supposed to be.
The federal government's over-involvement in non-federal affairs is far less solidified than was the encrustation of Jim Crow which had been permitted by the erroneous Fourteenth Amendment cases.[FN68] Many thousands of school buildings and other facilities had been built, in reliance on long-established Supreme Court precedent, with separate "white" and "colored" sections. Segregation at school and in many other areas was deeply ingrained in the South, and many other parts of the United States. When the Court, in Brown v. Board of Education, [FN69] destabilized its equal protection jurisprudence, the consequences were immense. A furious white backlash drove Southern white moderates out of politics; fanning the hottest levels of white anger became the surest path to political success in the South.[FN70] Affection for racial segregation (having been sanctioned by, among other things, decades of federal judicial tolerance for it) was deeply embedded in the characters of tens of millions of Americans. For years and years after Brown, state and local governments proudly announced their intention to use every possible means to defy the Court's decision.
Within a few years of Brown, presidents were finding it necessary to federalize the National Guard, and even call out regular Army troops, in order to enforce the Court's decision against the wishes of large, violent, angry mobs.[FN71] For all the dislocation, even a decade after Brown, three quarters of Southern districts were still segregated.[FN72] It took decades of effort for the entire federal court system finally to enforce Brown and its progeny; federal judges faced death threats, and other citizens died in the effort to make Brown the real law of the land. Yet today, even the minority of Constitutional scholars who believe that Brown was wrongly decided do not argue that the Court's mistake was in destabilizing existing precedent.
Contrast the dislocation in Brown with a hypothetical Supreme Court decision which made Justice Thomas's concurrence the law; the power "(t)o regulate Commerce . . . among the several States" would be interpreted to cover only what the Constitution literally says: the power to regulate commerce (buying and selling things) across state lines.