THE RENAISSANCE OF FEDERALISM.

Author:Bolick, Clint
Position:ESSAYS
 
FREE EXCERPT
  1. INTRODUCTION BY JAMES HUFFMAN (**)

In the following article, Justice Clint Bolick addresses a subject that should be of interest to environmental law students, practitioners and regulators. "Federalism," writes Bolick, "is the fabric of our constitutional tapestry." How particular political interests and parties view that tapestry depends, observes Bolick, on who holds power in our various governments. In pursuit of uniform national standards, those holding power in the national government tend to discount the scope of the states' powers, but when those same interests are in the national minority they contend for federalism-based limits on national authority and more expansive state and local powers. The history of environmental regulation since the 1960s reflects this opportunistic and unprincipled (Bolick calls it situational) approach to constitutional federalism. As advocates for environmental protection gained influence on the national political stage, they were able to persuade Congress to enact an assortment of national environmental laws relying heavily on Congress's power under the constitution to regulate interstate commerce. A result was preemption of some state laws and reduced reliance on common law remedies. Objections by some states that these laws intruded on the reserved powers of the states were largely unsuccessful in the courts. But the Trump administration's effort to roll back many of these national laws has led to a newfound interest on the part of environmental advocates in state and local regulation. And that, argues Bolick, is a promising reminder of the founders' wisdom in establishing federalisms vertical separation of powers. Although state powers have been steadily eroded over the last century, the shifting political consequences of a powerful national government have helped sustain bipartisan support for the preservation of significant powers in the state governments. No doubt Bolick would prefer a more principled, less situational, stance on the vertical separation of powers from both ends of the political spectrum, but he is a realist as were those who designed the federal system more than two centuries ago. The founders conceived federalism as one of many structural restraints on the abuses of power that otherwise arise, inevitably, from political factionalism. Federalism debates are often framed as federal power versus states' rights. But Justice Bolick reminds us that it is people, not states, that possess rights. Three examples of what Bolick calls "civil-disobedience federalism" underscore the importance of federalism to individual liberties. Recent state initiatives with respect to sanctuary for immigrants, legalized marijuana and the right to try experimental drugs all are driven by concerns for individual freedom. Similar concerns for the rights of individuals arise from both environmental degradation and environmental regulation. Justice Bolick's article suggests that greater reliance on state and local governments, what he calls the "laboratories of democracy," can benefit both freedom and the environment. II. THE RENAISSANCE OF FEDERALISM

What an honor to deliver this evening the annual lecture in honor of my long-time friend, Jim Huffman. Jim defines the term "renaissance man." I cannot imagine anyone having a bigger impact on a law school, with a career spanning four decades as a professor, dean, and founder of the environmental and natural resources program. And as far as I can tell based on his recent productivity, I think he's only about halfway through that career, notwithstanding this thing he calls retirement. His scholarship encompasses constitutional, natural resources, environmental, water, and private property rights law. He is widely published and has taught in such wondrous places as Greece, Guatemala, and New Zealand. About the only blemish I am aware of in an otherwise storied career is when some people who must not have liked Jim very much put him up for the U.S. Senate in 2010. Much as I know he would have served with distinction, I would have worried for his sanity, and I look forward to Jim's continuing leadership in many areas of legal scholarship. Jim, my comments tonight are a humble and tiny tribute to you and your ever-growing legacy.

We recently celebrated a milestone, the 230th birthday of the greatest freedom charter in the world, the U.S. Constitution. Sometimes people justifiably wonder how relevant the Constitution is to our lives in the twenty-first century. Is it vibrant and meaningful or a mere historical relic? Certainly much of its intended relevance has faded, often and ironically at the instigation of those who take an oath to defend it. But tonight my topic involves a feature of our Constitution that is a distinctively and wonderfully American innovation that began as a philosophical abstraction yet is enormously vital and meaningful in the year 2017: federalism. Long given up for dead, it turns out that like Mark Twain's famous proclamation, happily the rumors were exaggerated.

I approach this topic with a slight degree of trepidation, owing to a brief experience a few decades ago that left an enduring impression. Back in my single days in Washington, D.C., I was riding the Metro and struck up a conversation with a young woman. I was wearing an Adam Smith tie, which was a ubiquitous sartorial emblem among conservative and libertarian men in the 1980s and '90s. The woman noticed my tie and remarked, "I dated a conservative one time." She reflected for a moment, then wrinkled her nose in obvious disdain and added, "All he wanted to do was talk about federalism."

I took that painful episode to heart, and when I subsequently met my wife, I think I waited until our second or third date before I even mentioned federalism. Fast forward to 2017, and although I would never venture that federalism has become a sexy topic, it is definitely a salient one, perhaps more than at any time in our history.

That is because of the troubling circumstances in which we find ourselves: an America deeply and bitterly divided between red and blue, overheated with inflamed rhetoric, resulting in a paralyzed national government incapable of addressing our nation's most urgent problems.

Fortunately, our framers envisioned that most of the decisions that affect us as individuals and communities would be made not at the national but at the state and local levels; (1) and despite a steady accretion of power in the national government, that still remains largely the case.

Indeed, federalism today is playing a role that is more vitally important than ever before--as a pressure valve to allow people of sharply divergent views to effectuate different policy goals. If we can't reconcile competing viewpoints at the national level, we can each pursue policies that reflect our respective goals and values in the several states--and in the process, to borrow a bumper-sticker phrase, to coexist. And that was exactly what the framers intended.

Federalism is the fabric of our constitutional tapestry. When most people think of separation of powers, they think of the executive, legislative, and judicial branches, each balancing and limiting each other's powers. But even more fundamental is the vertical separation of powers, in which the states and national government also balance and limit the powers of each other.

In the original constitutional framework, states were intended to have the upper hand. The Constitution created a national government of limited and defined powers. The states retained all remaining legitimate governmental powers. (2) To underscore the point, the framers punctuated the Bill of Rights with the Tenth Amendment, which provides that "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." (3)

The framers believed that the states and their constitutions would be reliable guardians of individual liberty. (4) After all, the Bill of Rights derived from preexisting protections in state constitutions.

But of course that premise proved...

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