In the July 9th edition of The New York Times’ “Room for Debate” feature, FIU Law Professor Elizabeth Price Foley advocates revisiting the Constitution and restoring federalism.
Elizabeth Price Foley serves as the Executive Director of the Institute for Justice Florida Chapter. She is also the Institute for Justice Chair in Constitutional Litigation and Professor of Law at Florida International University College of Law.
Restore Federalism: It Isn’t a Bad Word
BY ELIZABETH PRICE FOLEY
Don’t change the text. Change the attitude with more judicial engagement in enforcing existing, critical constitutional features — in particular: federalism.
To some, the F word is constitutional obscenity. It is relabeled “states’ rights” and followed by reference to slavery and the Confederacy. This taps into deep emotions but is utterly wrong.
Greater engagement with the existing Constitution is best, but proposed amendments aimed at restoring state power are worth considering.
Federalism isn’t about states’ rights. It’s about individual liberty. The Supreme Court emphasized this in Bond v. United States (2011): “By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake.” And lest you think this emanates from the court’s right wing, Bond was unanimous.
The powers “reserved to the states” under the 10th Amendment are functionally nonexistent if the Constitution’s carefully enumerated powers are infinitely capacious. So while the 10th Amendment doesn’t tell us what powers belong to the states, its message is clear: preserving federalism requires vigilant enforcement of limited and enumerated powers.