Government--organized, legitimized coercion--presents a dilemma. On the one hand, government is necessary to obtain certain benefits, such as the creation and enforcement of property rights that are essential to the efficient use of resources. On the other hand, giving some individuals organized power over others is very dangerous. Power, the ability to command and enforce obedience, is not good for the soul; it seems inevitably to lead to an exaggerated appraisal of one's wisdom and goodness as compared to those qualities in others. Power expands ego, and ego yearns for more power, with the result that government tends inexorably to grow far beyond what justifies its existence and therefore to limit human freedom unnecessarily.
Because government is dangerous, we should have no more of it than necessary and strive to make what we must have as little dangerous as possible. The only way this can be done is by making it effectively democratic, that is, subjecting it in a fairly direct and immediate way to popular control. Three of the ways in which the American system as it now operates can be made more democratic are the decentralization of policymaking, the adoption of measures of direct democracy, and most importantly, the limitation of the policymaking power of judges.
DECENTRALIZATION OF POLICYMAKING
Government can be made more responsive to the popular will by keeping the policymaking unit closer to the people. As a matter of simple arithmetic, the smaller the policymaking unit, the fewer the number of people who will be discontented by any policy choice. Individual freedom means leaving policy choices with the individual; if a choice must be removed from the individual by government, individual freedom is served to the extent that it is removed no farther than necessary.
We should therefore resist the centralization of government power and favor decentralization absent a strong showing of efficiency or other losses. We cannot, however, expect to be helped in this regard by the Supreme Court.(1) The division of government power is not something that can be made a matter of judicially enforceable law. Because policymaking power is not a physical thing that can be divided into separate areas or spheres, there cannot be two legally defined independent power centers in a single polity; dual sovereignty is a contradiction in terms. The power to regulate interstate commerce, for example, necessarily includes--in fact, is not distinguishable from--the power to regulate things that affect interstate commerce.(2) It will therefore necessarily conflict with or impinge upon the power to regulate commerce that may not be considered "interstate" and things that may not be considered "commerce." When conflicts occur, the sovereign is the lawmaker whose policy will prevail.
Because everything affects interstate commerce to some degree, the question in every case challenging a purported exercise of the commerce power is whether the regulated activity affects interstate commerce enough to justify national regulation and the consequent lessening of local autonomy. This is a policy issue, and there is no reason to think that it is better left to courts than to elected representatives. More broadly, when the people want a policy issue--for example, assisted suicide--to be decided at the national rather than the state level, it is hard to see why the federalism issue--the appropriate limits on federal power--should be decided according to the preferences of federal judges. The judges' claim that they find the answer in the Constitution will here, as elsewhere, be fictional. Congressional power has undoubtedly grown far beyond original expectations, but there is much to be said for the notion of a "living Constitution," a Constitution adaptable to new circumstances, when the effect of a doctrinal change is not to expand but to loosen constitutional restraints-to relax the grip of the hand of the dead--and the adapting is done not by judges but by elected representatives.
In any event, it is a serious mistake to rely on the Supreme Court to limit national power. From the beginning with McCulloch v. Maryland(3) in 1819 and Gibbons v. Ogden(4) in 1824, judicial review has historically had the opposite effect. For sixty years--up to United States v. Lopez(5) in 1995--it served only to rubber stamp and therefore seemingly legitimize expansions of federal power.(6) Congress leaves the constitutional question to the Court while the Court defers to Congress' presumed but non-existent constitutional judgment. The result is only pretend review, which is worse for state autonomy than no review. There can be no realistic expectation, despite Lopez, that this situation will significantly change, at least where the federal government is not directly regulating the states. For one thing, the states are frequently quite happy to have the federal government decide or participate in the resolution of an ever-widening range of issues; it is not the states but individuals who typically assert the states' supposed autonomy interest.(7)
The most we can or should ask of the Court on the federalism issue is that it cease its pretend review and thus make clear that the responsibility for the growth of federal power lies solely with Congress. Congress will undoubtedly continue to legislate freely on almost all issues, but this shows only that, at least since the New Deal, we have had a true national government, like a "normal" country--as they say in the Russia that is emerging from the Soviet Union(8)--and it seems very clear that, rightly or wrongly, this is what the people want. Decentralization, to repeat, is an aid to democracy and protection against tyranny, but we do not further democracy by having the Supreme Court take the issue out of the political process.
Most important, we contradict ourselves when we complain of the Justices' willingness to assume decision-making power on every issue of basic social policy only to turn around and ask them to protect us from our elected representatives in Congress. A Court powerful enough to do that is too powerful to be expected to uphold policies with which it disagrees and too powerful to be left free of electoral accountability. Democracy requires protection only from, not by, the Supreme Court.
Almost half the states now provide for some form of direct democracy on important issues by allowing initiatives and referenda.(9) It would greatly revitalize and enhance democracy in this country if such measures were adopted by all of the states, if they were made easier to implement in the states that already have them, and perhaps most important, if they were adopted by the national government.
The initiative and referendum were promoted at the turn of the century by so-called progressives who saw direct democracy as a way of overcoming the conservative political influence of corporate and financial interests.(10) Today, however, the dominant influences on government are not conservative, and direct democracy therefore serves primarily to protect conservative and traditional interests. Whatever may have been the case earlier, it now seems that the leaders of any political organization in the United States, from the local school board to the United States Senate, will be substantially to the left of its membership or...