Federalism and Civil Rights

• Author: Robert C. Post
• Pages: 1007-1009

Page 1007

In the scheme of the United States Constitution, the concept of FEDERALISM requires respect for the distinct legal authorities and diverse cultures of the separate states, but the concept of CIVIL RIGHTS requires adherence to uniform rules emanating either directly from the national Constitution or indirectly from various congressional enactments. The two concepts are thus bound in a structural tension.

This tension has persisted since the RECONSTRUCTION amendments, when the national government first seriously began to create federal civil rights that could be asserted against the states. These rights, together with the expansion of federal JUDICIAL POWER necessary to enforce them, were self-conscious efforts to eradicate aspects of the indigenous culture of the southern states traceable to the institution of SLAVERY. Federal civil rights were thus born in a burst of national centralization.

Ironically, these rights were interpreted by courts in such a way as to permit racial subordination to endure even in the absence of slavery. The FOURTEENTH AMENDMENT in particular was understood to establish civil rights that were primarily economic in nature, most notably the right of FREEDOM OF CONTRACT. In the era after LOCHNER V. NEW YORK (1905), federal courts were so persistent in using this right to strike down social reform legislation in the states that Thomas Reed Powell was moved to "question

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whether judicial centralization is not pushed to an extreme under our federal system."

In this context, the values of federalism acquired a distinctively progressive cast. In 1932, for example, Justice LOUIS D. BRANDEIS, in his dissent in NEW STATE ICE COMPANY V. LIEBMANN, gave his influential and ringing defense of federalism as a "laboratory" for "novel social and economic experiments." When, after the constitutional crisis of the NEW DEAL, the Supreme Court backed off from its enforcement of laissez-faire economic rights, these same federalist values led some to challenge the Court's creation of a vigorous regime of noneconomic civil rights. In ADAMSON V. CALIFORNIA (1947), for example, Justice FELIX FRANKFURTER opposed Justice HUGO L. BLACK'S proposal to "incorporate" the guarantees of the BILL OF RIGHTS into the Fourteenth Amendment for application against the states. Frankfurter argued that the INCORPORATION DOCTRINE would "tear up by the roots much of the fabric of law in the several States, and would deprive the States of opportunity for reforms in legal process designed for extending the area of freedom."

In this way the values of federalism became associated with conservative opposition to the establishment of federal noneconomic civil rights. This association reached its apex when the concept...