Jewish World Review July 2, 1999 /18 Tamuz, 5759
Indeed, Mr. Hamilton's party took the name Federalists. But now the phrase States' Rights is used interchangeably with Federalism, which used to be its opposite.
However confusing, it's all assuring evidence that American politics remains blessedly non-ideological. Left and right keep changing places. We may finally have become one nation indivisible, but not one nation entirely comprehensible.
No wonder, amid all this star-spangled movement, most of us would like to forget ideology and stick with the Constitution -- which still holds the allegiance, if not worship, of all. All of us believe in that Constitution, devoutly. We just can't all agree on what it means.
And so the justices of the Supreme Court have become our high priests, and we leave it to them to sort out its mysteries. We take our disputes to the courts, not the barricades. Very sensible.
Yes, the law can be a messy process, but it's so much more convenient than civil war. The country tried that once and didn't like it.
Ever since, American history has been a continuing thesis against revolution, or rather an example of continuing revolution, all of it perfectly legal. For the law, as Mr. Justice Holmes noted, eventually responds to the felt needs of the time.
Now the Supreme Court, or at least a narrow majority of its black-robed oracles, has read the constitutional entrails and rediscovered the states' immunity from lawsuits under the 11th Amendment. But not, the court wisely adds, in those cases that involve fundamental rights guaranteed elsewhere in the Constitution, rights like "due process'' and "equal protection of the laws'' -- highly flexible phrases that can expand or contract with the political temperature.
The felt need of this time is to restore the states' diminished place in the constitutional constellation, and that's what a narrowly divided court has begun to do in these three 5-to-4 decisions.
But what of those citizens with legitimate grievances who are now told they cannot sue their state in state or federal courts? What is their recourse, demands one of the dissenting justices, apparently under the impression he's asking a rhetorical question. Here in Arkansas, they can appeal to a state claims commission. Other states have similar arrangements.
Because citizens have no recourse in court doesn't mean they have no recourse at all. There is also the legislative process, public opinion, the initiative and referendum. ... Not every dispute need be decided in court, even if it has begun to seem that way in American society.
Now that our judicial priesthood has spoken, it remains to be seen just how great a change this decision will make. It always takes awhile to dispel the fog and incense after the high court has a new revelation, especially 5 to 4. And especially when the dissenting opinions are sent up like fireworks. In the rockets' red glare, all perspective can be lost.
In this case, the chief dissenter -- His Honor David H. Souter -- fired away at the states and their claim to share in that magical, mysterious constitutional commodity called sovereignty. "The state is not the ultimate sovereign,'' Mr. Justice Souter proclaimed. "The national government is. The majority could not be more fundamentally mistaken.'' One may disagree with the associate justice's reasoning, but there is no mistaking his certitude.
Yet if there is a single great unresolved question at the center of the celestial masterpiece called the Constitution of the United States, and one question that should remain unresolved if this wonderfully balanced and counter-balanced system is to be preserved, surely it is: Sovereignty, sovereignty, who's got the sovereignty?
This is a game any number of states and one central government can play indefinitely. Happily, it never stops. Because if it did, all that intricate 18th-century clockwork would stop with it, and the whole marvelous arrangement of wheels and gears, balances and counter-balances, would grind to a halt, freeze, and this heirloom would no longer keep time, or rather keep up with the times.
Besides, not all authorities may agree with David Souter's idea of where ultimate Authority rests in this ingenious system. There is the Declaration of Independence, for example, which posits that "all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness -- That to secure these Rights, Governments are instituted among Men, deriving their just powers from the Consent of the Governed. ...''
It is the people, not their government, who seem to have been entrusted with sovereignty, at least according to Thomas Jefferson's still revolutionary declaration. As the Republic celebrates the Declaration's 223rd birthday, Mr. Justice Souter's opinion would make a nice counter-weight to Mr. Jefferson's in a July the Fourth editorial.
Let it be noted that in a significant sense this country has no national government, only a federal one. The difference, like so many semantic differences, is significant. It is the difference between liberty and Leviathan. It is the difference between one all-encompassing black hole and a shining constellation of 50 stars.
The constitutional center of this great swirling galaxy is not only undetermined, but undeterminable as it sweeps through the heavens. Perhaps it is no coincidence that the founding fathers chose a field of stars for the American flag when they created a New Order for the Ages. It's not only a grand old flag, but a handy visual aid when it comes to understanding the nature of our constitutional arrangement.
These several states are not just subdivisions of a national government; they're, well, states. Sovereign states. To quote Anthony M. Kennedy, the associate justice who wrote the decision for the (bare) majority, the states are not "mere prefectures'' but "joint participants in a federal system, one beginning with the premise of sovereignty in both the central government and the separate states.'' In high-school civics classes, this used to be called the doctrine of dual sovereignty.
Dual sovereignty may be a contradiction in terms, but that's also one of the glories, and utilities, of the Constitution. It is a masterpiece of balance, a grand galaxy with its center at no fixed point. Like the Earth itself, as Galileo once exclaimed in awe and wonder, it moves.
And with these decisions last week, that center has moved
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