Division of powers still debated

SUN JOURNAL

Rulings: As it has for centuries, the Supreme Court decides what the federal government controls, and what falls under state purview.

May 19, 2000|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON - A question about the Constitution's meaning may be as old as the Constitution itself. But no matter how often it may have been asked, it still might not have a final answer.

The Supreme Court once more is pondering the very issue that produced the Constitution in the first place: how to divide power between the national government and the states.

Few unanswered questions about the Constitution reverberate so loudly through history. And few other constitutional issues today produce the fervent disagreement in the Supreme Court that the national vs. local power equation does. Regularly, the court splits 5-4 over that.

The 5-4 split occurred this week when the majority struck down a key provision of the 1994 Violence Against Women Act that allowed victims of rape, battering and other gender-linked violence to file lawsuits in federal court against those who assault them.

"The Constitution," Chief Justice William H. Rehnquist wrote, "requires a distinction between what is truly national and what is truly local." The court ruled that sexual violence is a local problem, left by the Constitution to the jurisdiction of state and city governments.

It did not matter to the court majority that 38 states had joined in supporting the law's constitutionality; the court said it was its duty to police the constitutional boundary between national and state governments.

More such rulings appear likely in the weeks before the court's summer recess. That would be a continuation of a trend begun in 1992 - one that is causing a rearrangement of the powers of modern government at all levels.

Curbs are being imposed on what Congress can do at the national level, while the powers that states are left free to exercise are being enhanced and state governments are gaining insulation from federal control.

To some of the court's critics - and to the justices who have used strongly worded dissents to protest that restructuring of government -- the trend is a reversal of the arrangement that was written into the Constitution.

Deep dissatisfaction with the inability of the fiercely independent states to get much of anything done when they were loosely combined in the Articles of Confederation led in 1787 to a Constitution that for the first time created a national government. That government was supposed to have enough power to solve public problems that were seen as national in scope.

These included such tasks of nationhood as defending the nation against foreign enemies, carrying on diplomacy with allies abroad, and seeing that business and commerce flowed easily among the states.

Then, as now, there was opposition. It came from "anti-Federalists" who thought the federal government would be too powerful, overwhelming the states. Although they could not stop the Constitution, they succeeded in attaching 10 amendments - the Bill of Rights - to set boundaries on federal power.

Their central argument continues to be put to use each time there is an expansion of federal power, or a new federal court case supposedly threatens to obliterate states' rights.

The argument is that the Constitution itself did not create an exclusive "sovereign" - that is, a single power center holding ultimate political authority, in the way, say, that the king of England was sovereign at the time the Constitution was written.

America's Constitution creates a dual sovereignty: The national government holds undisputed power in its sphere - as in national defense and in regulating interstate commerce - and the states hold undisputed power in their sphere - as in prosecuting most crime and protecting public safety.

Supposedly, that division of powers was designed to protect the people's freedom and their liberties: Power was spread, rather than concentrated, to make it less likely to become overbearing.

But the lines of demarcation between national and state authority are not finely drawn; they are meandering and often blurred. Thus, there is plenty of room for disagreement about what "is truly national" and what "is truly local" - the phrases Rehnquist used this week.

In the recent spate of Supreme Court rulings nullifying a lengthening list of federal laws, at least when those laws targeted the states, the court majority has said it was acting to protect the "state sovereignty" portion of the nation's dual-sovereignty formula.

"State sovereignty" enjoys considerable respectability with the court's current majority. The states, Justice Anthony M. Kennedy declared in June, "are not relegated to the role of mere provinces ... but retain the dignity, though not the full authority, of sovereignty." The Constitution, he said, made the states partners with the federal government in "the governance of the nation."

The phrase "state sovereignty" sometimes has had sinister meanings. In the years leading up to the Civil War, it was spoken in defense of slavery, and in justification of the Southern states' secession from the Union, leading directly to the Civil War.

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