Federalism: the founders' design.

• Author: Farber, Dan

Federalism: The Founders.' Design.

Raoul Berger. University of Oklahoma Press, $16.95. Berger began his scholarly career with an insightful study of the history of impeachment, moved on to a provocative book on the Fourteenth Amendment, and has now turned to the subject of federalism. This latest work, however, lacks the plausibility of a good legal brief, failing to pass what lawyers call "the straight face test' (i.e., could you get up in court and make this argument with a straight face?).

Berger's view of federalism is unusual, to say the least. Like Calhoun, he contends that matters of inherently state and local concern are absolutely beyond federal regulation. Very little that the federal government has done since Roosevelt would pass muster under Berger's test.

Even the least controversial of nineteenth century legislation is too much for Berger. For example, he argues that the Supreme Court erred in 1903 when it upheld congressional power to ban the interstate transportation of lottery tickets. Congress has no right to interfere with "WINGO!.' Presumably, federal narcotics laws are equally unconstitutional. And, not one to shrink from the unpalatable consequences of his thesis, Berger expressly states that federal food and drug laws are unconstitutional. Protection of public health is, after all, traditionally a matter of state concern. Therefore, he reasons, it is none of the federal government's business, for the founders, he says, "sought to preserve an independent, "inviolable' sphere of action' for the states.

Berger argues that the Fourteenth Amendment, which he views as very limited, did not change the importance of state sovereignty. He fails to recognize, however, that his vision of sovereignty died...