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Taking Federalism Seriously: Lopez and the Partial-Birth Abortion Ban Act

The Framers, after all, certainly considered the limited nature of the federal government to be the primary protector of individual freedom; the Bill of Rights was merely a back-up system. We have now reached the point at which the back-up system is virtually all that is left of the original liberty-protecting scheme. And as NASA engineers say, once you start relying on the back-ups, you're already in trouble.

"Even more important, an overweening federal government stretched beyond its constitutional limitations lacks fundamental legitimacy. Legitimacy, after all, comes not from the possession of the badges of office, but from the rightful possession of the office and the rightful use of its authority. It has not escaped the attention of many Americans that the federal government has exceeded its constitutional bounds, and that realization plays a major part in the widespread hostility toward the federal government that is manifest today.

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The Commerce Clause seems to be the worm in the apple -- progressively expansionist interpretations eating away at any limitation on Federal power.

Of course, there are many on the left who think federalism is an archaic notion, and that power is better concentrated in the central government. It's basically a disagreement about centralized vs. distributed decision-making. But the historical record is so clearly in favor of distributed decision-making, in both politics and economics, that only a certain degree of ignorance and wishful thinking on the left can explain why this is still being fought over.

Byron