Federalism and the Left

Over at Crooked Timber, Henry Farrell links to an essay by Norm Ornstein, a resident scholar at AEI, on Samuel Alito's alleged lack of deference to the authority of Congress. Deja vu, yes, but this time I'm responding to Dr. Farrell's comments:

Now Ornstein’s writing from the perspective of a Congress scholar who wants to preserve Congress’s role and prerogatives. But he has a very serious point. If Alito has aligned himself, as he seems to have, with a highly restrictive view of Congress’s powers to regulate interstate commerce, he’s bad news for the left.

I'm not sure I agree with this. Naturally, leftists will find a lot to love about centralized power when it's wielded by other leftists. But Republicans are in power now, and the left hasn't been terribly happy with the way they've been running things. Centralism (not to be confused with centrism) doesn't look like such a good deal for the left these days.

Recall that the conservative federalists Thomas and Rehnquist both dissented in the Raich decision, according to which Congress has the power to ban cultivation of marijuana for personal use, while the "liberal" centralists Ginsburg and Breyer joined the majority opinion for the sake of consistency with an overly broad reading of the Interstate Commerce Clause.

Next year, the Supreme Court will rule in Gonzales v. Oregon on the constitutionality of the Bush Administration's attack on Oregon's Right-to-Die law. There's no question that a federalist court would rule for Oregon, but your guess is as good as mine with this court.

Roe v. Wade, the darling of the centralist left, was a historical accident, not an inevitability. In a parallel universe not too far away, a centralist Republican Senator is demanding to know whether a Democratic Supreme Court nominee would vote to strike down a (blatantly unconstitutional) federal ban on abortions. As it is, three cases challenging a federal ban on partial birth abortions are now making their way through the Federal circuit. Again, a federalist court would strike down this ban, recognizing that the Constitution grants Congress no authority to regulate abortion.

More generally, the wealthy coastal states, which typically vote Democratic, tend to be net tax donors, with benefits flowing to inland states dominated by Republicans. This is exacerbated by a uniform Federal tax code under which rural and urban taxpayers face the same rate schedule despite radical differences in cost of living.

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