Guest Host: Susan Page

The Preamble to the U.S. Constitution.

The Preamble to the U.S. Constitution.

The constitution of the United States established a government based on federalism or a power-share between the national, state and local government. The intent was to differentiate us from countries with a centralized government, like England. The relationship between federal and state governments continues to evolve. More recently there’s been a push for more states rights by the Tea Party and some conservatives, like the governors of Virginia and Texas. As part of our continuing series the Constitution Today, “Federalism,” its history and present day significance to American law


  • Stuart Taylor Contributing editor, Newsweek and National Journal
  • Michael Quinn President and executive director of James Madison's Montpelier.
  • Nina Pillard Professor of Law at Georgetown University


  • 11:06:55

    MS. SUSAN PAGEThanks for joining us. I'm Susan Page of USA Today sitting in for Diane Rehm. Diane has a cold. She hopes to be back later this week. Federalism, the power sharing relationship between the national and state governments dates to the founding of the United States. That relationship has evolved over the years and the continuing debate over what balance should be struck has helped fuel the emerging Tea Party Movement. In part four of our series The Constitution Today, we look at federalism.

  • 11:07:30

    MS. SUSAN PAGEJoining me in the studio, Michael Quinn of the University of Virginia, he's executive director of James Madison's Montpelier. Nina, Pullard -- (laugh) I'm sorry, Nina Pillard of Georgetown -- Georgetown University and Stuart Taylor of Newsweek and National Journal. Welcome to "The Diane Rehm Show."

  • 11:07:48

    MR. MICHAEL QUINNNice to be with you.

  • 11:07:48

    MR. STUART TAYLORIt's a pleasure to be here.

  • 11:07:49

    MS. NINA PILLARDThank you, Susan.

  • 11:07:49

    PAGEWe invite our listeners to join our conversation later in this hour, you can call our toll free number, 1-800-433-8850 or send us an e-mail to or you can find us on Twitter or Facebook. Well, Michael Quinn, what was the framers' intent in devising the system of federalism?

  • 11:08:11

    QUINNWell, actually, it was one of the great creative inspirations of the founding because what -- they came up with the idea that if people could be under the jurisdiction of two governments at the same time and we're accustomed to that, but at the time that was introduced in the Convention, and Madison was one of the proponents of it, it was -- it was brand-new and they really -- and they wrestled with it at the Convention.

  • 11:08:42

    PAGEWas is was there a model for it? Was there another place that'd tried this kind of system before?

  • 11:08:45

    QUINNNo, no. In fact, there was no model for it and as more than one observer have said, if there -- if this idea had occurred to the British 10 years earlier, there would've been no need for the American Revolution. They would've found a way out. And Madison and the founders were dealing with much the same problem. The states were kind of a given. That's where the primary allegiance of every American lay, although the idea of American nationhood and citizenship was emerging, but literally, there was a consensus that there needed to be some union. That if you had disunion, you had disaster. But how to shape it was the big problem.

  • 11:09:25

    PAGENina, every high school social studies class talks about the "Federalist Papers" or refers to them. Give us a little brief refresher course on what they are, "The Federalist Papers."

  • 11:09:38

    QUINNWell, the "Federalist Papers" were really an advocacy document and it -- they were op-ed pieces that present -- that were published in newspapers, so we're talking about journalism in its truest and original sense and it was the effort of Madison, Hamilton and John Jay to persuade the American people that this concept that the Convention had created should be authorized and empowered by the people of America.

  • 11:10:06

    PAGESo when we talk about states rights, Nina, what's the Amendment or what part of the "Constitution" is the core of that?

  • 11:10:12

    PILLARDWell, to some extent, Susan, the whole "Constitution" really reflects it because, as Michael said, the presumption at the time of the framing of the "Constitution" was that the states were the primary governmental organ for – for each individual, but -- and we joined in a confederation with a national government and the federal "Constitution" created limited powers that it gave to the national government. So when I say the whole "Constitution" really reflects the federalist design, the states have general governing powers. The national government has limited and enumerated governing power. So every time the national government acts, their sort of the way of thinking it through is, is there power there in the "Constitution?"

  • 11:11:03

    PILLARDSo the Commerce Clause, for example, gives a national government a pretty broad power to regulate national commerce, but there've been Supreme Court cases over the -- over the history of our nation that have sort of ebbed and flowed in how broadly they read that.

  • 11:11:15

    PAGESo Stuart, go run through for us some of the powers that the federal government has.

  • 11:11:21

    TAYLORWell, Nina mentioned the one that seems to come into play the most often in terms of the powers of Congress to regulate interstate commerce and upon that foundation has built -- then built a gigantic edifies of congressional regulations because just about all economic activity, and some non-economic activity, effects interstate commerce. But Congress -- and that also is foreign commerce. Congress also has the power to raise and support armies to levy taxes. The president hast the power to -- as commander in chief of the armed forces, Congress has most other war powers, although the presidents over the centuries have seemed to invade that turf quite a bit.

  • 11:12:04

    TAYLORBut it -- actually, the tension between the states and the federal government we've been emphasizing so far the predominance of state powers and the federal being an add-on, but the whole reason for the "Constitution" -- Michael can correct me if I'm wrong, the main reason for the "Constitution" was that the "Articles of Confederation," which predated it, had given such small and limited powers to Congress that things didn't work. New York, for example, had a tax on imported firewood from Connecticut and there were -- there were -- the colonies, the former colonies, were honeycombed with basically little warring economic policies. And a big part of the "Constitution" was to get past that and have one national market.

  • 11:12:48

    PAGESo the "Constitution" gave specific and more powers to the federal government, but reserved some powers exclusively to the states. What were those, Michael?

  • 11:12:56

    QUINNIt really -- what was not delegated to the federal level was reserved either to the people or to the states and it really was a change of mindset because the real -- we were coming out of an era when sovereignty power resided with a monarch. And the intellectual concept of our founding was that sovereignty resides with the people. And in fact, if you follow that through, sovereignty doesn't reside at the state or at the federal government. A state does not have any rights. A state has powers that are delegated to it by the people, just as the federal government does. And what you really see at the Convention and I think in many cases since then, is still sort of wrestling in accepting that concept.

  • 11:13:46

    PAGEIt's a remarkable -- it's this 10th Amendment that you're referring to that says just flatly the 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. Such a fundamental American concept.

  • 11:14:13

    QUINNYeah, but I think the real key concept there is powers remain with the people. It's their right and authority to delegate them to the states or to the federal government. And as we've seen, you know, as Stuart said, it seems like the federal edifice has grown, one could also say that that's a proper delegation from the people.

  • 11:14:21


  • 11:14:21

    PILLARDOne of the -- I mean, sort of for the sake of the listeners, 'cause I know a lot of this sounds pretty abstract, there are areas that are sort of understood to be really principle areas of the states where the federal government has a very limited regulatory role and family law is sort of the very core one. Education and criminal law are also considered to be really, you know, the predominantly areas for the states, although we do have some, you know, national law in education and in certainly in criminal law.

  • 11:14:53

    PILLARDBut it's worth bearing in mind that the vast, vast bulk of laws that matter in the American people's everyday lives are state laws. You know, the state really is the major font, and the state -- the employees of the states, there are ten times as many state government employees as there are national government employees today. So we still are talking about a much greater governmental presence at the state level.

  • 11:15:16

    PAGEOur phone lines are open. You can give us a call, 1-800-433-8850. Stuart?

  • 11:15:21

    TAYLORI agree as a practical matter, but as a matter of constitutional power, there's been a long drift towards the federal government can do just about anything it wants unless it's cut off by the provisions of the Bill of Rights. For many years, the 10th Amendment, when I took constitutional law 30 some years ago, the 10th Amendment was regarded as a dead letter.

  • 11:15:41

    TAYLORBecause the powers of Congress had expanded so far, the thinking was that there were no powers left to be reserved to the states at least. The embodiment of this might have been Elena Kagan's testimony last summer before she was confirmed. A Republican senator asked her, well suppose there was -- suppose Congress passed a law saying you need to have -- every American needs three servings of fruit and vegetables a day for the sake of the public health.

  • 11:16:09

    TAYLORWould that be constitutional? She said, well, that would be a dumb law. She didn't say it would be unconstitutional, because I think most liberals on the Supreme Court, and a lot of moderates on the Supreme Court for many years have bought into the idea that the power to regulate interstate commerce is almost unlimited.

  • 11:16:28

    PAGEYou said that when you were in law school this seemed like a kind of dead letter. Has that changed today? Does it seem more -- is there more debate...

  • 11:16:35


  • 11:16:35 than there was a few decades ago?

  • 11:16:38

    TAYLORWhat changed it more than anything, I think, was the Supreme Court decision in 1995 called United States v. Lopez. And Congress had passed a law saying if you possess a gun within a thousand feet of a school there's a heavy federal penalty. And the Supreme Court held in that case and one other, now you've gone too far, Congress. You know, this has nothing to do with regulating interstate commerce, and therefore we're going to strike it down.

  • 11:17:02

    TAYLORBut those two decisions, there's another one involving violence against women, and Nina can explain better than I, I imagine, those two decisions are kind of sitting out there all by themselves and have not generated a lot of follow-up decisions.

  • 11:17:13


  • 11:17:14

    PILLARDI'd actually somewhat disagree about that although I agree with Stuart, when I was in law school, we didn't really study the limits on national power. And I remember I was teaching constitutional law at the time when the Lopez decision came out, and someone said, well, at least it will make constitutional law a lot more interesting.

  • 11:17:30

    PILLARDAnd we saw not just the Lopez decision, but in a series of decisions that were issued by the Supreme Court under the leadership of former Chief Justice William Rehnquist, we saw the court striking down provisions of national laws in a whole series of decisions starting with the Lopez decision that Stuart mentioned.

  • 11:17:53

    PILLARDProvisions of Americans with Disabilities Act, the Age Discrimination and Employment Act, the Violence Against Women Act, patent and trademark law, fair labor standards law. So there was a whole bunch of trimming that went on with the Supreme Court getting involved and saying, you know, there are limits on the commerce power, there are limits on -- there are immunities of the states against regulation.

  • 11:18:15

    PILLARDAnd, you know, it really flows not just from the court, but from President Reagan. I mean, what we call the federalism revolution was a really major part of President Reagan's sort of program and his legacy.

  • 11:18:29

    PAGEAnd of course, we hear a lot about returning to the original ideas of the founders with the Tea Party movement. Many people with the Tea Party movement concerned about the expansion of the federal government. We're going to talk about that and more. First we'll take a short break. Stay with us.

  • 11:20:03

    PAGEWelcome back. I'm Susan Page of USA Today sitting in for Diane Rehm. And with me in the studio, Nina Pillard, Professor of Law at Georgetown University, Stuart Taylor, he's contributing editor at Newsweek and National Journal And Michael Quinn, president and executive director of James Madison's Montpelier. We're talking about the system of Federalism setup, part of our Constitutional series on "The Diane Rehm Show." Michael Quinn, the "Constitution," of course, laid out the framework for how Federalism was supposed to work. What were the early questions about it, the early disputes that had to be settled about how this system would work?

  • 11:20:39

    QUINNWell, Susan, it was the most contentious issue at the Constitutional Convention and it really started with the opening when you had delegates announcing themselves and presenting their credentials. The delegates from Georgia said they were from the sovereign state of Georgia. So right there, you have this whole concept of State and Federal and how do you create a union. At heart, what they were really trying to figure out, though, there was a broad unanimity that you did not want disunion and that you had to change the "Articles of Confederation" or that's where you'd end up.

  • 11:21:13

    QUINNThey had -- the states were a political reality and -- and what Madison and the others realized is it could be turned into a strength, is have these intersecting powers, these intersecting governments overlaid over the same territory, the same people and that could prove to be a check on governmental power becoming tyrannical. How to figure it out, they didn't really come to a final solution. It was a discussion throughout the convention.

  • 11:21:45

    QUINNIt was the biggest issue they had to deal with, the great compromise that gave us state representation in the Senate and popular representation in the House. And a real intermixing. You know, we vote by state even when we're voting for the President, so the real sort of jumble mixing, but they really felt that that complexity would help be a safeguard. And the issue of whether it struck the right balance was a major debate in the ratification debates and writings of the federalist and the anti-federalist. It's still an issue with us today.

  • 11:22:21

    PAGESo after the nation was formed, the "Constitution" ratified, the government began, what were the early issues before the Supreme Court that related to the question of Federalism and power sharing, Nina?

  • 11:22:33

    PILLARDWell, there were a number of cases that dealt with the breadth of the commerce power. For example, did Congress have authority to regulate the commerce between the several states? And you saw some early decisions that held that Congress did have the power. What was at issue was more manufacture or agriculture, for example, if something involved conditions of manufacture that would not be within the commerce power. Now, later, the court engaged in reinterpretation said, well, how things are manufactured and, you know, the nature of agriculture regulation has an enormous impact on the national economy. So as the appreciation of kind of the commercial interdependence of the different sectors has grown, the judicial interpretations have recognized the generally greater national power.

  • 11:23:29

    PILLARDSo we saw early on in a case called Wickard v. Filburn, which was a 1940 case in the "Agricultural Adjustment Act." There was a question about whether production of wheat for home consumption by a farmer on the family farm could be regulated by Congress. And in a way, that's so quintessentially local, right. It's weak. It's not even going into commerce. Nobody's buying and selling anything and it's happening wholly within the state, even the locality. But Congress, in that case, which was considered kind of a high watermark of Congressional power -- I'm sorry, the court in that case said Congress does have the power to regulate because that activity affects commerce. It's going to take away demands that would otherwise exist on the part of families like that to buy in interstate commerce.

  • 11:24:22

    PILLARDAnd so the appreciation of our economic interdependence has really fueled a much broader understanding of the Commerce clause.

  • 11:24:29

    PAGEAnd, you know, a very current debate, the mandate that Congress has imposed on Americans to buy health insurance by 2014, most Americans will be required to or subject to penalties. And what's the basis for Congress' power to tell Americans that they have to buy health insurance, Stuart?

  • 11:24:48

    TAYLORCongress claims two basis and it's being litigated in the courts now and will probably go to the Supreme Court within the next couple of years. One was the power we've been talking about to regular interstate commerce. The idea was that the health insurance market is certainly a huge interstate commerce affair and that whether or not -- and that in order to effectively regulate it, Congress thought they need to require everybody to have health insurance of some kind. And they justify that as a -- justified saying i.e. that a 25-year-old healthy person has to go out and buy a certain kind of health insurance policy or pay a federal penalty, they justify that as regulating the interstate commerce.

  • 11:25:28

    TAYLORNow, I think that one thing that's conceded people argue about is that that's unprecedented. Congress has never, under the interstate commerce rubric said you have to buy a certain kind of commercial product. And that's what gives rise to the kind of questions that were asked of Elena Kagan, what if they say we have to eat our vegetables, et cetera, et cetera. The other power they claimed that may be the sleeper here is the power to tax and spend. Although President Obama emphatically said, this is not a tax, this mandate. And the penalty that would enforce it as a political matter, as a legal matter, the administration is defending it as an exercise of the taxing power, i.e. you don't really have to buy the health insurance, all you have to do is pay a fine, a tax if you don't buy the health insurance. And those are the issues that are winding their way up through the courts.

  • 11:26:19


  • 11:26:20

    PILLARDSo one of the things I think that's important to keep in mind about -- about national healthcare approaches and I thought national healthcare legislation is that it leaves to the states lots of room to craft differing and innovative approaches on issues where uniformity isn't needed. So we've seen, you know, Medicaid itself, which this is, you know, an expansion of is optional on the states. Any state that doesn't want to do it doesn't have to do it. There's been, you know, a ramp up in the federal funding that's going to be provided to the states.

  • 11:26:57

    PILLARDYou know, so it's -- the spending power that the federal government uses is very powerful, but it's basically saying, we're going to give you a lot of money and, you know, we're gonna tell you some guidelines about how that money's spent, but we also want the states to perform this really salutary function that they have within the federal union, which is to be laboratories and see whether they can come up with different ways to deal with this problem to the extent that that isn't going to create, you know, gridlock and chaos in the national market. But there is a lot of flexibility in the states. And, you know, I think you could point to healthcare legislation today as an example of a very strong federal state partnership where there's a lot of discretion and lots of regulatory flexibility on the states as well as the federal requirement.

  • 11:27:50


  • 11:27:51

    QUINNWell, you know, the founders could never have imagined this kind of debate. The world was a much different world at that time, but what -- what they were really striving to do was figure out a way to serve the public good. And I think that they would've felt that there are really useful distinctions between what the federal government does and what the state does. And as Nina's been saying, there's still a lot of latitude for the states. It really isn't a full federal takeover. And I think actually finding that balance as the world changes is a responsibility of every generation. And that's -- the debate we're engaged in is a healthy debate in that respect because we're continuing to discuss how we live together. And that's what really the "Constitution" is all about. How to -- 300 people -- 300 million people live together both free and at peace.

  • 11:28:50

    PAGEBut the idea, the question of whether the "Constitution's" a document that should be followed very closely as it was written or evolved over time, we've heard that over and over again with recent...

  • 11:29:01


  • 11:29:02

    PAGE...Supreme Court nominations during the confirmation process.

  • 11:29:04


  • 11:29:04

    PAGEStuart, there's a real different of opinion.

  • 11:29:06

    TAYLORSure. Well, it's getting more complicated. I mean, for many years since Ed Meese kind of put originalism, as it's called, original intent, original meaning approach to the Constitution into the center of national debate in the mid 1980s, conservatives have rallied around the idea that yes, original meaning, you know, that courts shouldn't be making up new things. And liberals have rallied around the idea of the living "Constitution." But now we're getting more and more liberals who are saying, hey, the original meaning helps us, too, who are making arguments that say fine, we'll argue original meaning against you conservatives, but we win.

  • 11:29:42

    TAYLORThere was an interesting kind of amusing moment in the Supreme Court a week or two ago in an argument over California's regulation of violent video games. When Justice Samuel Alito said -- I think he was joking a little bit -- that his usual ally Scalia -- Justice Scalia wants to know what James Madison would've thought about violent video games.

  • 11:30:04

    TAYLORAnd that kind of encompasses, okay, if we're really going to go to original meaning, that's the level at which we'd kind of have to think about it because...

  • 11:30:12

    QUINNWell, Stuart...

  • 11:30:12

    TAYLOR...there are a lot of things that were not known then that have to be regulated under this language.

  • 11:30:17

    QUINNWell, Madison spent the rest of his life explaining to people what the "Constitution" meant. And he talked about it and he even talked about the ambiguity in words and the imperfect ability to communicate means there will always be room for interpretation. And he also talked about, you know -- he was sort of an undying moderate. He even talked about, you know, you really need to find sort of the moderate sense of the words to get to the meaning of the "Constitution."

  • 11:30:49


  • 11:30:49

    PILLARDI think it's really important also in any discussion of states' rights and federal constitutional power and original meaning not to lose sight of the very essential goal that race and in particular slavery has played in the history of this issue. So we have a federation of states and there was early in our history enormous controversy, as our listeners know, about the institution of slavery. And one of the major sort of watershed moments in federalism was after the Civil War. The "Constitution" was amended. And the 13th and 14th and 15th amendments, which outlawed slavery, created constitutional equality of all peoples and gave the former slaves the right to vote.

  • 11:31:39

    PILLARDThose amendments were seen as kind of shifting a model toward federal power in order to ensure equality. It was the federal government that was going to have legislative power and each of those amendments gave Congress new powers to carry out their promise. And so there's a kind of federal power model that then again was taken up in the 1950s and '60s and '70s, with the national civil rights legislation, where those powers to assure equality were tapped into. And it was this -- you know, a lot of the history of states' rights is a very ugly history of threats of succession, of actual succession, over resistance to the eradication of slavery and resistance to the Civil Rights Movement.

  • 11:32:29

    PILLARDSo there's a -- you know, for a lot of Americans the notion of states' rights is a notion that's very laden with some pretty ugly overtones in our nation's history.

  • 11:32:41

    QUINNWell, and one of the principles founded -- affirmed in the Civil War is that a state could not leave the Union, that its sovereignty did not extend that far. It was -- the Union was unbrinkable.

  • 11:32:55

    PAGEI'm Susan Page and you're listening to "The Diane Rehm Show." Well, Stuart, the Civil War period, where the system of federalism evolved to some significant degree, also the New Deal era was a time when there was some rethinking of how exactly this balance worked. Tell us about that.

  • 11:33:12

    TAYLORYeah, well, during the early New Deal, the Supreme Court was in the hands of the nine old men, as FDR called them, a majority of conservatives who struck down the majority of the early new deal legislation, the "National Industrial Recovery Act." I think they -- and a bunch of others. And they were sort of paralyzing a lot of efforts to deal with the depression. And meanwhile, the depression kept getting worse in spurts. And that was led to the Court-packing Plan, which failed, but it sort of seemed FDR's war against the court, rhetorically at least, seemed to have an impact and in 1937, in what's been called the switch in time that saved the nine, one justice started voting the other way and they started upholding new laws and over time, they upheld just about everything.

  • 11:34:03

    TAYLORNina earlier mentioned Wickard v. Filburn, which kind of extended at the level of farmer growing wheat for home consumption, but I think to build on what Nina was saying, between the effect of states' rights being thought of as something that perpetuated the depression and states' rights being thought of as something that perpetuated the legacy of slavery, for a long time this country saying, I'm for states' rights was just not respectable, probably in any northeastern state or at any national university. And it's only been, I'd say, in the last 20 or 30 years or so that the debate over state v. federal power has a little bit returned to a debate that isn't hugely overshadowed by the race and depression history.

  • 11:34:51

    PAGEAnd some of that relates -- I'm sorry, go ahead.

  • 11:34:53

    QUINNI was just going to say, at heart, I think one of the issues behind the sort of states' rights argument is that Democracy works best if it's local. Keep your representatives in touch with their constituents. And that's an argument that goes back to the founding. I think that Madison and the founders, though -- well, Madison in particular recognized that you can't always rely on the will of the majority to preserve liberty. That sometimes the majority can turn into a tyrant, whether it's the case of slavery or other issues. So that they recognized that you needed checks on that, unless we have concepts of natural rights, higher law and federalism itself.

  • 11:35:37

    PILLARDI think I really agree with Michael that one of the sort of brilliant things about our federal system is that you do have governmental units that are closer to the people. And it's very hard for people to feel involved and feel like, you know, the whole nation is their community, but I also -- I wanted to point out another theme, which I think is, you know, one of the sources of resistance to Reagan and Justice Ranquist -- to Justice Ranquist Federalism Revolution, was that behind some of the efforts to narrow national power and devolve more power to the states was really not so much a desire to have the states be in the forefront of regulation, but to eliminate regulation.

  • 11:36:21

    PILLARDThat there's an anti-government theme behind the sort of Federalist Movement, which basically says, let's move the power to the states and then it'll become impractical. 'Cause actually, there are a lot of things that are not going to be really effectively subject to governance at the state level. And so it's a way of saying, instead of going to the national government and getting legislation, you'll have to go to each of the 50 states. And you never will and therefore this area of regulation will die. And, you know, there are areas where we really do need national solutions and it's one of the great sources of our national strength.

  • 11:36:58

    PILLARDAnd so that sort of demonization of government, the effort to impede the ability of government to govern, I think, is something that makes some people somewhat suspicious of the federalism impulse.

  • 11:37:10

    PAGEStuart, what do you think?

  • 11:37:11

    TAYLORI agree with that, although it's easy sometimes in the idea of saying, let's wipe out the federal regulations so that we'll have the nice states to take care of us, to forget the fact that in some states, you can't paint your house the color you want because some local commission is saying, hey, this is a historic district. And so regulation can be oppressive whether it's federal or local.

  • 11:37:35

    PAGEWe're talking about the system of federalism and our Constitution. We're going to take a short break. When we come back, we're going to go straight to the phones and take some of your calls and questions. Stay with us.

  • 11:40:03

    PAGEWelcome back. I'm Susan Page of USA Today sitting in for Diane Rehm. And with me in the studio this hour, Stuart Taylor of Newsweek and National Journal, Nina Pillard, professor of law at Georgetown University and Michael Quinn, president and executive director of James Madison's Montpelier. We're going to go to the phones and read some e-mails, now let our listeners in our conversation.

  • 11:40:25

    PAGEHere's an e-mail from Mary and actually, we've gotten several e-mails on this topic. Actually, it was Tom from Cincinnati who sent the e-mail I wanted to read, sorry. He wrote, "I have read that President Washington signed a bill passed by Congress requiring men to buy muskets. If that is true, then the federal government has required citizens to purchase something before. Does anyone know about this?" Stuart Taylor, do you?

  • 11:40:51

    TAYLORYes. It came up before. I was a little stumped at first and then I went and read the "Constitution" a little more, which is always worth doing, and President Washington did sign that. The power he was apparently exercising at that point was not the power to regulate interstate commerce, it was the power -- the war power -- broad war powers, but in particular the power and I'm quoting from the "Constitution," "To provide for calling forth the militia to execute the laws of the union, suppress insurrection and repel invasions."

  • 11:41:20

    TAYLORIt goes on to say, "To provide for organizing arming and disciplining the militia," etc. Now, how do you arm the militia? In the day and age, you armed the militia by telling everyone you have to have a gun. And therefore, it is true as that story says, that the federal government has ordered people in the past, Congress has legislated that you have to buy a commercial product.

  • 11:41:42

    TAYLORBut what is never done, until the healthcare bill, as far as I know, is said, under the power to regulate interstate commerce, we require you to buy a certain product, whether it's health insurance or people -- the reduction ad absurdum is everyone's got to go buy a General Motors car to help the economy, etc.

  • 11:42:01

    PAGENow, here's the e-mail from Mary, who is also writing us about this mandate to buy health insurance. Mary writes us from Brighton, Michigan. She says, "How does requiring us to buy health insurance differ from our having to buy homeowner's insurance to get a mortgage or auto insurance to be licensed to drive a car?" How is it different?

  • 11:42:33

    QUINNWell, the most obvious difference is you can always choose not to own a car, not to own a home. There's not counterpart to that decision in terms of healthcare. I guess one could choose not to live, but that's not...

  • 11:42:34

    TAYLORPlus, I think those are all state laws, and part of the premise of the whole discussion is, and part of what they did in the "Constitution," is they say the general power to legislate, called the police power, but it's not just about police, is in the states. They can require all kinds of things that the federal government cannot require and I think all the law that were mentioned, particularly you need to have to car insurance, are state laws.

  • 11:42:58

    PILLARDWhich really emphasizes the point that I was making before about, you know, some of this opposition is not really opposition to the national government versus the state government doing something, it's opposition to government doing it at all. And so, you know, if this were a mandate, as it was in Massachusetts coming from the state level, you know, surely there would be people there who say, you know, get off my back.

  • 11:43:20

    PILLARDThis is something that's inappropriate for government and, you know -- but the examples I think of having to have auto insurance and having to have homeowner's insurance, you know, illustrate why it's something that is actually salutary for life in today's society.

  • 11:43:39

    QUINNBut that's a -- you know, a healthy and legitimate debate. You know, what is the purpose of government? As some of our founders have said, the point of government isn't just to secure life, it's to secure the good life. It's the concept of the pursuit of happiness. It's building a society, a community where life is worth living and so it really gets to that issue as well.

  • 11:44:05

    PAGEYou know, the distinction between state and national powers is certainly one that Mitt Romney is trying to make. Mitt Romney, as governor of Massachusetts, signed that healthcare law, but he is now opposing the federal mandate, arguing that it's really something should be left to the states. I'm sure that's something we'll be hearing about in the next presidential campaign. Let's go to Roy. He's calling us from Rochester, N.Y. Roy, hi, you're on "The Diane Rehm Show."

  • 11:44:27

    ROYYes. Well, I guess you've covered a lot. I was wondering about, you know, if there was some sort of intellectual backlog on where the Tea Party was going, and I had a -- I'm not sure if that -- you've kind of covered some of that, but there's a thing about, you know, the argument of living "Constitution." I think some people think are we talking about the words, or are we talking about the men.

  • 11:44:59

    ROYAnd I think back to the time when Justice Brandeis was being nominated for a really -- for the court and there was a really good battle around that that none of the people currently seemed to have had, and they really wanted to have a fight to be appointed and there were arguments that if Brandeis wasn't appointed, would that show that only people with deep attachment to power and very conservative views were the only people who could be presented to the court? You know, are our selections the court now becoming particularly narrow? Is it only judges, no longer governors, solicitor generals, politicians?

  • 11:45:47

    PAGEAll right, Roy. You're clicking in and out. I'm going to ask Stuart if he could respond to your question.

  • 11:45:52

    TAYLORWell, there's a lot in that question and responding to all of the pieces of it would take awhile, so I'll just respond to one. I think the caller points out that we've narrowed the class of people and it long post dates Brandeis. We've narrowed the class of people who get appointed to the Supreme Court. Elena Kagan was the first person appointed to the Supreme Court in some time who had not previously been a federal appellate judge.

  • 11:46:19

    TAYLORAnd she had previously been a law professor and law school dean, which some people might not think of as a great populaced improvement on federal judge. Governors, senators, etc., the Brown v. Board of Education court famously in 1954 had a lot of big shot politicians on it and that's changed and I think the reason it's changed has a lot to do with the polarization of our politics and the difficulty getting anybody confirmed on the Supreme Court who has a discernable polity record.

  • PAGEAll right, Roy. Thanks very much for your call. Let’s talk to Eleanor, she's calling us from Alexandria, Va. Eleanor, welcome to "The Diane Rehm Show."

  • 11:46:55

    ELEANORThank you. This is really an interesting discussion, but there are a few things I'd like to have more attention to and so I was really pleased to hear the emphasis on states having powers, not right because if you -- I think rights are something inherent to the individual. They may require a lot of fighting over recognition of the rights, but nevertheless, they are individual. And powers are properly conferred as the "Constitution" says to the people.

  • 11:47:21

    ELEANORNow, I wanted to really focus in on the use of the commerce clause instead of the 19th -- I mean, the 14th Amendment in civil rights cases. That's one area I wish you'd talk about. And the other one is why has there been no public discussion, ongoing if necessary, but no public discussion of the exclusion of women from the 14th Amendment? It makes a huge difference if you bring, let's say -- it's makes women very statute dependent and those statutes can be affirmed or disregarded at will by courts, including the Supreme Court. So you bring a case to a court and it has no constitutional basis whatsoever if it's sex discrimination case.

  • 11:48:09

    PAGEAll right, Eleanor. Thanks for your call. Nina, what do you think?

  • 11:48:12

    PILLARDWell, actually, Eleanor, the court has interpreted the 14th Amendment to extend to equality for women. It talks about all persons and gives us all equality and the major cases that the Supreme Court has decided recently, for example, the case admitting women to the Virginia Military Institute, was decided under the 14th Amendment, so it has...

  • 11:48:39

    TAYLORNina, didn't you argue that case in the Supreme Court?

  • 11:48:41

    PILLARDI wrote briefs for the United States...

  • 11:48:42


  • 11:48:43

    PILLARD...but I didn't argue that case. So yes, we do have equality. It comes from a time after the Civil War when the focus was on eradicating slavery and giving equal rights to blacks, but it has also been a very important protection for women. And you're right that some of the more detailed and vital protections are also federal statutory protections, but we do have a constitutional grounding for them.

  • 11:49:10

    PAGEEleanor, thanks so much for your call. Let's go to Paul. He's calling from St. Cloud, Wi. Hi, Paul.

  • 11:49:17

    PAULHi. How y'all doing today?

  • 11:49:19


  • 11:49:21

    PAULI'll try to be brief. I'm wondering why Congress didn't use the interstate commerce clause to regulate the state's insurance authorities. I think there's a lot of argument about the fact that the free market system is not allowed to work because of the confusing mishmash of 50 different states regulating the insurance industry. Thank you.

  • 11:49:42

    PAGEAll right. Thanks very much for your call, Paul. Stuart, what do you think?

  • 11:49:45

    TAYLORI think there's a long history to that and I don't know all of it, so someone can correct me if I get it wrong. Decades past, early in the 20th century, the Supreme Court held that the business of insurance was not part of interstate commerce. Now -- and legislation followed on that. I think the "McCarran Ferguson Act" was part of it, where Congress basically relegated the regulation of insurance to the states.

  • 11:50:08

    TAYLORNow, as a matter of constitutional power, I don't think there's much doubt today that Congress could regulate the business of insurance, and has in some respects, but there is that legacy that's left the status quo of it largely being regulated by states.

  • 11:50:23

    PAGENina, did you want to add anything?

  • 11:50:25

    PILLARDNo. I just think Stuart's exactly right. It's more of a political kind of detente and a custom. I think if there were proposals for Congress to regulate that had a lot of political support, they would be constitutionally adequate.

  • 11:50:41

    PAGELet's talk to Reed. He's calling us from Havana, Fla. Reed, you're on "The Diane Rehm Show." Reed, are you there? Well, I'm sorry we missed -- I guess we won't be talking to Reed. Let's go to John calling us from San Antonio, Texas. John, hi.

  • 11:50:58

    JOHNWell, hi. I really like what y'all do. There was mention of the fact that the 10th Amendment has been forgotten and I hadn't know that it's illegal federal law at some point made it illegal for people to grow wheat and make bread on their own land and maybe that's changed, I don't know. But it was hardly like -- I mean, this is so absurd. If you look at the Jeffersonian, as I understand my history, Jefferson like the idea of a nation with lots of small producers, it's a stronger nation. Isn't that what we're supposed to be about?

  • 11:51:38

    PAGEYou know, John, interesting. I think Nina was the one who raised the issue of that case. Can you address his question?

  • 11:51:44

    PILLARDWell, it wasn't that it was illegal, there's no prohibition or criminalization. It was whether there could be any regulation at all taking account that the wheat that's grown at home for home consumption is part of the national market. And I think Stuart may remember this better, but I think that was a case about...

  • 11:52:03

    TAYLORFeeding livestock, I think, and then whether there were quotas that the federal government had. I'm not sure how it worked.

  • 11:52:08

    PILLARDBut this was during the -- under the "Agricultural Adjustment Act" in 1940 and there were efforts to bolster the national price of wheat. And so, you know, this is a whole sort of statutory regime that's no longer in place. So it's absolutely -- I don't want the listeners to get the impression that it's illegal to grow wheat for your own consumption or anything else, other than perhaps marijuana, for your own consumption on your home property.

  • 11:52:32


  • 11:52:33

    QUINNThe caller also brought up the Jeffersonian concept of a nation of farmers, a rural nation, and that's certainly one of the issues that has sort of injected itself into the federalism concept, which is that, you know, if you have these virtuous people living off the land, then democracy will work best at the local level.

  • 11:52:53

    QUINNAnd, you know, I think the reality, though, is that the world keeps moving forward and we have to find a way to make our system of federalism, of constitutional powers work, even as the world changes around us.

  • 11:53:06


  • 11:53:07

    TAYLORThere was a fascinating Supreme Court case in 2005 that kind of scrambles people's reactions to these things. The Gonzales v. Raich and that was the medical marijuana case. The issue in the case was, California has a law saying it's okay to grow marijuana at home for your personal medical use. Federal law says, no it's not and has said that for a long time.

  • 11:53:29

    TAYLORSo which trumps? Can Congress make it illegal to grow marijuana at home for your own personal use as a matter of regulating interstate commerce, and the Supreme Court said, yes, Congress can do that. And someone who might have been expected to go to the other way, Justice Scalia, who is Mr. original meaning to the "Constitution," was in the majority, and said, yes, Congress can do that.

  • 11:53:50

    TAYLORAnd there's been arguments among scholars why he did that.

  • 11:53:54

    PAGEI'm Susan Page of USA Today and you're listening to "The Diane Rehm Show." Well, you know, we actually have gotten some e-mails about this difference of law between federal and state governments when it comes to marijuana. Zack is one of the people who has written us. He says, "Does the federal government have a constitutional right to overlook those state laws and enforce its own laws and is that settled now?" Nina?

  • 11:54:21

    PILLARDI would emphasize the point that Michael made earlier that the government doesn't have rights, it has powers. But yes. One of the things that the court -- one of the implications of the court's decision in the Raich case that Stuart was talking about is that yes, the national government does have the authority to render it criminal to grow marijuana for one's own consumption, even where a state or a locality says we actually think that should be permitted.

  • 11:54:51

    PILLARDSo you see and I just wanted to sort of highlight one of the themes that had come up a little bit earlier, which is -- I think Stuart had suggested, that there actually are sort of some political flip-flops on these federalist issues. There are issues in which people more on the sort of progressive end of this spectrum favor strong state power. There are -- you know, the states are the source of some of the strongest consumer protection laws, personal injury laws.

  • 11:55:19

    PILLARDAnd there it's the conservatives who say, oh, no. That's something that should be regulated at the national level and the national legislation on those issues should preempt any state efforts to go further or deal with those questions differently.

  • 11:55:34

    PAGENow, Nina just talked about federalist flip-flops when it comes to these issues when it comes to advocates. How about courts? Do we have signs, Stuart, that the Roberts' court has a different or distinctive attitude toward some of these federalist issues compared to previous courts?

  • 11:55:51

    TAYLORIt's not clear that John Roberts, the chief justice, is all as strong as, for example, Clarence Thomas or Scalia for that matter, as a state's rights guy. We'll find out maybe when health insurance gets there. But there have been some important splits among conservatives on the court. But in general, conservatives on the court, and I think as Nina was indicating, like conservatives elsewhere, are a lot fonder of federal power to override states on matters of commerce when it's state litigation generating activity.

  • 11:56:23

    TAYLORWhen it's a state law that says you can sue a drug company because you think their drug hurt you, even though it complied with federal regulations. On things like that, the sides tend to flip flop.

  • 11:56:36

    PAGENina, we'll give you the last word.

  • 11:56:38

    PILLARDAnother exception to that that doesn't have to do with litigation, is the defense of "Marriage Act" where the conservatives said, national government can define what marriage is. The states that are doing different things and allowing same sex marriage should be -- those laws should be ousted or not given interstate effect.

  • 11:56:53

    PAGENina Pillard, Stuart Taylor, Michael Quinn, thank you all for joining us this hour on "The Diane Rehm Show."

  • 11:57:01

    PILLARDThanks so much, Susan.

  • 11:57:03

    TAYLORThank you.

  • 11:57:04

    PAGEI'm Susan Page of USA Today sitting in for Diane. She'll be back later this week, we hope. Thanks for listening.

  • 11:57:09

    ANNOUNCER"The Diane Rehm" show is produced by Sandra Pinkard, Nancy Robertson, Susan Neighbors, Denise Couture and Monique Nazareth. The engineer is Tobey Shreiner. Dorie Anisman answers the phones. Visit for audio archives, transcripts, podcasts and CD sales. Call 202-885-1200 for more information. Our e-mail address is and we're on Facebook and Twitter. This program comes to you from American University in Washington. This is NPR.

Topics + Tags

Most Recent Shows