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one another, but I think there can be some kind of separation between civil rights and budgetary matters.
Chairman THOMPSON. Professor Galston, I wonder if I could invite you to comment a little bit more on the concept, and also perhaps to indicate that, now that we are in a time where devolution seems to be more in favor, whether this means either that individual rights do not need the protection of the Federal Government anymore or whether they are, in some sense, thereby jeopardized in the face of State and local majorities.
Mr. GALSTON. Let me begin by saying that it is a matter of national consequence when the Federal Government gets things wrong. The Chairman is absolutely right about that.
But in the area of civil rights, the Federal Government got things wrong for 100 years not by acting but by refraining from acting, and I think there is an important historical lesson in that.
Senator LIEBERMAN. Right.
Mr. GALSTON. So the logic of that argument points in both directions.
I think there is a substantial measure of agreement on the general point here, but I do want to underscore something that was in my written testimony. Namely, these rights can be created by acts of Congress as well as by legitimate constitutional interpretation. For example, the Americans with Disabilities Act, I believe is going to have and is already having profound consequences, not all of them entirely welcome, for State and local actors and for the private sector, as well.
I have not heard an orgy of reconsideration in the halls of Congress as to the wisdom of that legislation, and that would be a contemporary example where the Congress in its wisdom, across party lines and with full cooperation of the legislature and the executive, created a new, enforceable right, which, whether we like it or not, enhances the power of the Federal Government in many respects. Now, perhaps on this panel, we could renew that debate right now, but í happen to think that it is going to take some prudence in judgment and perhaps even some legal tussles in order to come out with a balanced enforcement strategy for that act. But it is there, and I think, on balance, it is a good thing for those individuals and for the country as a whole that it is there.
Senator LIEBERMAN. Thank you both for those answers.
Let me take up the discussion that the value, that both of you commented on and the intention of the Framers in creating a Federal system to protect interstate commerce. That inherently involves some limitation of State and local authority. My question is—although I am mindful of what you said, Professor Galston, which is that you are wary in this area of any generalized presumption for or against any particular level in the Federal system, that it is hard to make broad-based rules here—but to continue to maintain the interstate commerce, the free market nationally, inevitably entails a curtailment of State and local authority in some
Maybe I will direct this to you first, Professor McGinnis. What is the overview? If you were going to construct some rules here for when we should do that and when we should not-of course, there
you one of those questions which your colleagues at your university would give you some good responses for, suggesting the impropriety of the question—what would you respond?
Mr. MCGINNIS. I think, first of all, I would say that as a matter, just if I were to advise you, as a matter of constitutional law, essentially, you can do what you would like in the Federal Government today, as I think Senator Thompson very nicely suggested. Even the Lopez decision can easily be gotten around. In my class, I tell the five ways of getting around the Lopez decision and allowing that regulation at issue in case to go through, consistent with our structure now.
So the question really is a matter of prudence under current law, and I would suggest, at least under our current system, that Federal responsibility really is about allowing markets to be open, preserving the free flow of goods and services among States. That is the crucial role for the Federal Government to protect, against regulations that would be parochial in the sense of favoring citizens
State against one another, they should be done away with either by an act of Congress or even perhaps through the dormant Commerce Clause.
But otherwise, I think, in regulations—where there are not spillovers between the States—where the costs of the regulation are borne by the people in the States, either in labor regulation or in some kind of environmental regulation, then I do not think the Federal Government should generally step in, because I think economists have suggested that when there are not large spillover effects between the States, and I would argue that there are a variety of regulations, that do not have a lot of spillovers among the States, that the State regulation imposes costs on wages and people in their States can make a good trade-off between the benefits of regulations and loss in wages. They may make a different tradeoff in Alabama and they may make a different trade-off in Connecticut.
But that is, in my view, the appropriate distinction between the Federal Government's role and the State's role, the Federal Government simply opening borders and dealing with spillover effects and the States dealing with regulations that largely have effects only within their State, or effects largely within their State.
Senator LIEBERMAN. Professor Galston, let me ask you to just comment a bit more and expand on the statement you made in your testimony, which is that we have got to be open to the possibility that economic, technological, and social changes will require the reconsideration of long-established Federal-State relations in regard to the free and open national market. What were you think
Mr. GALSTON. Well, nothing that the Senate of the United States has not been thinking about for quite some time, and the Congress of the United States as a whole. Jim Leach, for example, has given a series of interesting speeches over the past couple of years suggesting that changes in the national economy, global capital flows, etc., require a fundamental reconsideration of the way we legislate and regulate in the area of banking. People disagree as to the remedy, but I think everybody agrees that we are in a new world, economically speaking, that is going to require some new thinking.
Similarly, as we have mentioned more than once this morning, the Internet is changing everything and its impact goes well beyond the very important consequences for State and local capacity to raise revenues. It is reconfiguring relationships in a way that the Congress of the United States is going to have to take cognizance of, in a way that is consistent with our Constitution, the Commerce Clause, etc.
I could go on and on with example after example of economic, social, and technological change which is forcing us to rethink and react and do things differently, whether we like it or not.
Senator LIEBERMAN. Professor McGinnis, at one point in your testimony, you described the passage of the Sixteenth and Seventeenth Amendments as unfortunate, and I wondered if you believe
Mr. MCGINNIS. I did not quite say they were unfortunate. I just said they had consequences that were.
Senator LIEBERMAN (continuing). Consequences which were departures from the intention of the Framers. The irresistible question is, do you think that the direct election of Senators was an unfortunate departure?
Mr. McGINNIS. Senator, I certainly think that it was an inevitable departure with the sense of the importance of popular sovereignty and popular democracy, and certainly I am not here to urge, particularly before this body, an amendment to get rid of it.
But I would say, though, that the amendment had consequences that we have to think of for our Federal system, and I am with Governor Leavitt in that. The whole burden of my academic work is to try to think of new ways of limiting government that are appropriate to our era. You cannot go home again to the original Constitution. You cannot get rid of the income tax. You cannot get rid of the direct election of Senators. But you can think of what is a constant problem in any era, which is how to deal with the Framers' eternal questions about human nature, the questions about how do we protect ourselves from government and make the limitations appropriate to our era, and that is what I have been trying to do in my testimony.
So, no, it is no part of my testimony to eliminate them or to say that they were wrong, just to say that we need to do some compensatory work now.
Senator LIEBERMAN. That is a good point. Of course, each of our reaction to the Seventeenth Amendment would depend upon our evaluation of the sentiment of our respective State legislatures. But it was a significant change and, of course, had effects on our service since then.
Thank you both very much. Mr. Chairman, thanks for an interesting hearing.
Chairman THOMPSON. Thanks very much.
I am going to take another minute or two. We touched on some court decisions. Just generally, I would be interested in your views as to the significance of some of the decisions. We pointed out some of the limitations of Lopez, the Pritz decision, a couple of others that seems to indicate that courts, maybe the Supreme Court, is
cance in that? Does it portend things for the future? How would you categorize it?
Mr. MCGINNIS. I think there are two issues. I raised two kinds of issues in my testimony, first that the dissolution of federalism has hurt government accountability and second that it has also simply made government bigger because it has given the Federal Government more power.
I think on the accountability issue, the court has done a pretty good job, or it has done a fairly decent job of starting to make the Federal Government at least accountable for the decision it makes. Because of the current court Congress cannot, for instance, tell the State legislatures to pass legislation that Congress would like, because that is the basic problem of accountability because people are then confused. Who is responsible for this limitation on our liberty? And I think, similarly, the Pritz case is very important in promoting accountability.
However, I do not see that the court has really changed the fact that the Federal Government has plenary, regulatory, and spending authority, and I think, Mr. Chairman, you were absolutely right in just referring to what happened after the Lopez case. You essentially were able to pass the same bill by changing it just slightly, and you could have passed it in a variety of other ways by making it a condition of Federal spending. So I do not think it has changed that, and
Chairman THOMPSON. You do not see that there are any new limitations on the Commerce Clause of any substance?
Mr. MCGINNIS. I do not think that they actually restrain the substance of what the Congress can do when it really wants to act, and I think the court really believes it cannot do that because precedent is so much against it in that respect. If it really did that, because the court does not act only prospectively, as Congress does, it would cast out a lot of Federal programs that we have come to rely on, for better or worse.
Chairman THOMPSON. What it did do is elevate the debate a little bit, or cause a debate among a few of us who thought it was worth talking about. So we at least caused them to have to go back and do it again and debate the issue. Perhaps that is a little progress.
Do you share his analysis of these court decisions or what they mean?
Mr. GALSTON. I guess my bottom line, Mr. Chairman, is that I think they are a bit more significant than that because I think they represent a change in a way of thinking, which, over time, will have practical and not just theoretical consequences.
For about 4 decades after the beginning of the New Deal, I think that we did function juridically as well as legislatively with the presumption that the power of the Federal Government was essentially unlimited and that the General Welfare Clause of the Constitution was the most operative clause of the Constitution. That was the clear lesson of the New Deal in a number of respects.
Starting in the mid-1970's, the courts and legislatures, to some extent, began to reexamine that assumption, in my judgment, for good reason. First, circumstances changed, and second, a case could be made that under the influence of a national economic emer
gency, the court suspended certain niceties which otherwise it would have been strongly inclined to observe, and, indeed, did try to observe for the first 2 or 3 years of the New Deal.
So I see a pendulum swinging back, a new balance in the making, juridically speaking. I think that the Lopez decision—I am not a constitutional lawyer, but I have it right here in front of me and I have considered it very carefully—I do think that the Lopez decision, in trying to restore juridical scrutiny of questions like, what is commerce, anyway, and what is interstate, anyway, and what does it mean to substantially burden interstate commerce, anyway, has put a new set, or, should I say, an old set of questions on the table that we are going to be wrestling with for the next generation, and I would not be surprised in 20 years if you reconvene this hearing if there would not be quite a significant change.
Chairman THOMPSON. As I said, I think it does cause us to at least address the question of whether or not something that has been the province of the States and local communities for 200 years is a good idea for us to federalize. It is happening in a lot of areas. It amazes me, the philosophical positions people get in. We are making decisions up here on our tort law based on whether or not we think there are too many lawsuits and not based on what level of government should be dealing with these, whether or not we want to federalize something that has been the State and local government province for 200 years. So I think the debate is good.
The final thing is, and this really calls on your expertise as much as it does your general citizenship, one of the things you both agree on is that observing concepts of federalism would assist in this age of cynicism on the part of the American public. It is something that concerns me a lot. In times of peace and prosperity, we do not pay much attention. Issues of government, in general, are less relevant to us, and we see how quickly things can change and we get our attention gotten in a hurry and we realize, perhaps, that we do need to have some confidence in our government and even confidence in our Federal Government. So anything that we can do to enhance that becomes important.
I think each of you agree that the proper observance of principles of federalism would help there, but more importantly, do you, as men of the law, and I know, Professor, you were with the government for a while, do you see that as a problem in society, the level of cynicism, the way people are looking at their government these days? Each of you may answer.
Mr. GALSTON. It is a good thing, Mr. Chairman, you did not put that question to me when there was more time to answer it, because it is the question that interests me most passionately of all that you could have posed.
But very briefly, I think we live in an era of almost unprecedented cynicism and mistrust, particularly directed towards our national political institutions. Some of it is warranted; much of it, in my judgment, is not, and I think it creates tremendous problems for self-government and for democracy and it is something we have to take very seriously with everything we say and with everything we legislate and regulate or otherwise do.
For that reason, I suggested in my written remarks, and will re