Federalism, SCOTUS & Bond v. US

One of my primary objections to the National Constitution Center in Philadelphia is its emphasis on civil rights and liberties as they have evolved through the Bill of Rights and subsequent Constitutional Amendments. Obviously the federal government’s obligation to ensure citizens the right to participate equally in society and to not have their rights arbitrarily violated by the government is instrumental in preserving freedom. However, this focus is by its nature incomplete. The Founders believed that the structure of our governmental system would be the ultimate guarantor of individual liberty (see Alexander Hamilton’s discussion in Federalist 84). Representative democracy, separation of powers, checks and balances, federalism, and the extended republic were designed to preserve individual rights by “first enabl[ing] the government to control the governed; and in the next place oblige it to control itself” (Federalist 51).

This view of government structure as a tool to preserve individual liberties and rights tends to be a bit passé in contemporary discussions of American government.  Justice Kennedy’s opinion for a unanimous Supreme Court in Bond v. the United States (2011) helps breathe new life into this neglected topic.  The ruling concluded that individuals have standing to challenge federal statutes on the grounds that they interfere with powers reserved to the states (for the facts of the case please see SCOTUSblog and Oyez).

In his decision Justice Kennedy provided a primer on the relationship between governmental structure and the protection of individual rights. He stated that “If the constitutional structure of our Government that protects individual liberty is compromised, individuals who suffer otherwise justiciable injury may object.” He first turned to Supreme Court precedent that allowed individuals to invoke violations of separation of powers as an impingement of their rights.  He gives the following example:

In INS v. Chadha, 462 U. S. 919 (1983), it was an individual who successfully chal­lenged the so-called legislative veto—a procedure that Congress used in an attempt to invalidate an executive determination without presenting the measure to the President. The procedure diminished the role of the Ex­ecutive, but the challenger sought to protect not the prerogatives of the Presidency as such but rather his own right to avoid deportation under an invalid order. Chadha’s challenge was sustained. A cardinal principle of separation of powers was vindicated at the insistence of an individual….

Kennedy then applies this same logic to federalism because

The Framers concluded that allocation of powers between the National Government and the States enhances freedom, first by protecting the integrity of the governments themselves, and second by protecting the people, from whom all governmental powers are derived.

Federalism protects individual liberty in three areas according to Kennedy:

1) The federal structure allows local policies “more sensitive to the diverse needs of a heterogeneous society,” permits “innovation and experimentation,” enables greater citizen “involvement in democratic processes,” and makes gov­ernment “more responsive by putting the States in com­petition for a mobile citizenry.”

2) Federalism secures the freedom of the individual. It allows States to respond, through theenactment of positive law, to the initiative of those who seek a voice in shaping the destiny of their own times without having to rely solely upon the political processes that control a remote central power.


3) Federalism also protects the liberty of all persons within a State by ensuring that laws enacted in excess of dele­gated governmental power cannot direct or control their actions. See ibid.  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 lawfulpowers, that liberty is at stake.

The unanimous decision in Bond v. United States was more than an arcane examination of standing to sue. Rather, it provides a means to reinvigorate our discussion of the mechanisms that preserve our individual rights and liberties. The Supreme Court has contributed greatly to this narrative by highlighting the importance of government structure and in particular federalism.


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