I. Background

The Framers came to the Constitutional Convention with a shared attitude of distrust toward all those who hold power. There had been times before the Convention when they were willing to place their faith in the king, the Parliament, the people, the legislature, and the executive, but by the time the Convention was convened, they were a disaffected group. No entity was spared this distrust and no entity was thought worthy of unchecked power. Their focus was on instituting accountability at the same time they assigned limited power to each government actor or branch.

The method of choice to deter abuses of power was to divide, disperse, and limit it. The federal government was divided into three branches; the federal government was divided from the state governments; and the state was divided from the church. The separation of power, thus, is not just a principle that explains the federal branches, but also relates to the other divisions sharply drawn by the Framers.¹

The Convention was called for two pragmatic reasons. The Articles of Confederation had failed in two crucial respects: (1) the states were incapable of putting together a unified foreign trade policy and (2) they were incapable of prosecuting war effectively against foreign aggressors. Thus, there was a dual obligation at the Convention: create a strong enough central government to counter these failures, but one not so strong that it would become tyrannical.

Behind the efforts to create this strong central government was a shared assumption that the states would continue to hold sway over most of the affairs they had governed since the Revolution. There was no doubt at the time that state sovereignty would continue to be strong. The truly difficult question was whether a national government could be successfully launched.

In the current debate over the limits of governmental power, it is often forgotten that the Framers believed that the product they had produced was not perfect. It was as good as they could make it in the time they had, but they felt compelled to write a cover letter to Congress, foreswearing perfection. They expected it to need amendment, but also because they assumed that those who assumed power would attempt to abuse it and because they knew they had not envisioned every possible abuse. They also believed that this experiment in republican democracy would need the astringency of distrust as the years moved on to smoke out abuses of power. They thought it utterly foolhardy to blindly trust any individual or group holding power. This is a pragmatic insight that continues to be a benchmark of accountability--to the extent the people place full trust in those who rule, they tend to be disserved.

Two hundred years later, we have a huge national government with virtually unlimited powers. It is commonplace for the defenders of the huge scope of federal power (the critics of federalism) to argue that the federal government had no choice but to increase its powers to its now nearly limitless scope, because of the problems faced. This is an evolutionary theory of federal power that fits perfectly with the Framers' assumptions about the propulsive quality of power, but that cannot be squared with the Framers' belief that enlargements of power should be viewed with suspicion. To identify the huge increase of power but then to argue that it was inevitable and should be accepted as a given is to abandon the fundamental principle of distrust that makes the Constitution work.

With its federalism cases, the Rehnquist Court has revived this attitude of distrust toward large accumulations of power, and in particular the Congress.

II. The Rehnquist Court

The hyperbolic rhetoric of the Court's academic critics has tended to obscure more than it has revealed. These reactionaries argue that the Court is overstepping its bounds, that Congress deserves leeway unchecked by judicial oversight (because the political process provides sufficient curbs), and that the Court's federalism cases are part and parcel of the Rehnquist Court's supposed anti-civil rights bias. None of these criticisms is persuasive.

The Constitutional system is intended to institute mutual checks and balances between the federal branches. With Marbury v. Madison, the courts were identified as the entity to review legislation for constitutional error. Few would dispute this point. The question is the breadth of the courts' power vis-à-vis Congress. It is taken as a given that the Supreme Court has the power to draw the line between the federal branches and between church and state, but somehow it is inappropriate for the Court to draw the line between the federal and state governments. The burden rests on those arguing against judicial review of the federalism boundary to justify this distinction. No theorist as of yet has been able to do this successfully.

The political process theorists fail miserably. The political process has done nothing to hem in Congress's inevitable (according to the Framers' lights) avaricious takeover of power in every arena. With the Supreme Court failing to police the federalism boundary for over sixty years, Congress has had no incentive to check its ever-lengthening reach.

In that environment, the Rehnquist Court's federalism jurisprudence² came as a shock, but a welcome shock in an era when the Framers' crucial notion of enumerated, limited powers had been shelved in favor of plenary review.

The federalism cases offer an opportunity to reassess Congress as an institution within the constitutional structure. Members enter with the crushing sense of needing to solve any or all of society's problems--from education to land use to guns. In turn, they solve the enormity of their docket by passing feel-good legislation and then delegating more and more lawmaking to unaccountable agencies. In other words, the Court's long silence fostered an era in which Congress was unaccountable to the states while the executive agencies took on Congress's role, which were unaccountable to the people. This is a dysfunctional system.

The federalism cases have cut into only a tiny portion of Congress's enormous power, but they remind Congress to ask whether it has the power to enact a particular law, to operate as though its sphere of power is limited. Ultimately, they may also give the members an "out" when pressed for legislation that is duplicative of the states' (and therefore a waste of the federal legislators' important time). Congress is freed as a result to concentrate on the national interest and the national issues the states (as we learned under the Article of Confederation) cannot handle independently.

The signal challenge for federalism jurisprudence has been how to articulate where to draw the line between federal and state power. After decades of consolidation of power in Congress over a comprehensive agenda, it is difficult to identify powers that are inherently federal as opposed to inherently local. Of course, those who point to the massive power of Congress following its sixty -plus years of being unchecked as evidence that there is not inherently local power are begging the question.

On this score, many of the opponents of the Rehnquist Court (the vast majority of constitutional law professors) counsel the Court to give up and politicians not to confirm any judicial nominee that might pursue the path of federalism. But there are no perfect, no absolute constitutional lines anywhere, so the complaint about the difficulty of line-drawing misses the mark.

There are arenas that--even after Congress's attempt to institute plenary rather than limited power--are intrinsically local and that ought to remain so. The best candidate to prove this point is land use law. Real property is tied to a particular location, and its use immediately impacts a singular group, the local community. Taking this arena to the federal arena results in an alarming lack of accountability. I will illustrate this through a description of passage of the Religious Land Use and Institutionalized Persons Act ("RLUIPA"). The comparison of Congress and local zoning authorities dealing with land use is quite instructive.

After the Supreme Court declared the Religious Freedom Restoration Act was unconstitutional on federalism (as well as other) grounds, Boerne v. Flores, 521 U.S. 507 (1997). there was a push by religious organizations for Congress to enact a replacement statute The proposed Religious Liberty Protection Act failed to make it out of committee, but a more limited version, RLUIPA, was passed.

When Congress considered RLUIPA, which requires local governments to prove that their land use laws applied to religious landowners were passed for a "compelling interest" and are the "least restrictive means" of regulating, it considered it in the abstract. (In practice, RLUIPA has given religious landowners a legal weapon to insist on more lenient treatment under the land use laws even in residential districts, meaning that private homeowners have paid a price.)

There were no hearings on RLUIPA, but there were hearings on RLPA relevant to RLUIPA's land use provisions. Those testifying provided anecdotes about alleged discrimination against religious landowners in the land use process. Various local government organizations asked to testify to explain why they thought the law was folly, but they were turned down. More interesting, homeowners, which constitute a huge number of congressional constituents, had no idea their interests were in jeopardy and the members never thought to think of the problem in terms of the impact on local homeowners. It was solely a bill about religious interests, which made every homeowner a second-class citizen in the land use context without input or consideration of homeowners' needs and rights.

The political process is structured at the federal level in a way that simply cannot fully serve the needs and interests of local, real property owners--especially when compared with the acute accountability of local land use lawmakers.

The RLUIPA scenario is far different from what happens in the local context. Zoning plans are open to public comment and any particular application can be and usually is challenged by neighbors and other community members. In actual practice, zoning authorities must deal with the arguments and demands of homeowners with respect to every ruling they make. They simply cannot rule without taking community views into account. When zoning authorities reach conclusions that are contrary to the perceived interest of homeowners, the result is usually that that cohort enters the local political fray to vote those individuals off of the zoning board or the city council. Thus, there is strong accountability, but there is also decisionmaking that is informed by the actual facts of the particular land parcels and by the interests of those affected in the community.

The federal courts persistently have deferred to local land use authorities, because of this dynamic and their conviction that they will make matters worse rather than better by meddling. It would not be a stretch for the Supreme Court to hold in a future federalism case that local land use is an inherently local concern. Similar arguments can be made about public education and neighborhood safety.

III. The Future of Federalism

1. It should not be surprising to learn that RLUIPA, discussed above, is being challenged on federalism grounds in the federal courts.

2. The federalism era also appears to have entered a more arcane phase--limitations on discovery disclosure and tolling of state statutes of limitations. The Supreme Court has granted certiorari in Pierce County v. Guillen, 31 P.3d 628 (Wash. 2001), which raises the question whether the federal Public Disclosure Act, 28 U.S.C. 409, violates the Tenth Amendment. The PDA exempts from discovery information collected or compiled for the purpose of a federally funded safety improvement. The case addresses whether the PDA crosses federalism boundaries when it directs that such information cannot be discovered in litigation where the state has collected similar information.

This case is interesting in that it is not the state arguing the federal law is unconstitutional, but rather private individuals bringing wrongful death action against a state subdivision, a county. The question, though, is whether the state should have latitude to determine what materials are discoverable in state court over state claims, even if the federal government forbids such discovery.

3. The South Carolina Supreme Court reached a noteworthy federalism decision when it ruled that 28 U.S.C. 1367(d) violates the Tenth Amendment, because it requires tolling of the statute of limitations in suits in suits in federal court against political subdivisions of the state, in this case, a county. Jinks v. Richland County, Op. No. 25446, So. Car. Sup. Ct. (Apr. 22, 2002). The court reasoned that federal law may not abrogate South Carolina's sovereign immunity without specific waiver. The state's two-year statute of limitations in the case was a waiver in effect for that time period alone and not for a longer period imposed by the federal government. The case stands for the proposition that state power to waive immunity contains within it the power to tailor the timing of that immunity.