To the Members of the 112th Congress:
Governor Rick Perry, shortly before beginning his quest for the presidency, told one audience,
Our friends in New York passed a statute that said marriage can be between two people of the same sex. And you know what? That’s New York, and that’s their business, and that’s fine with me. That is their call. If you believe in the 10th Amendment, stay out of their business.
Discussing abortion with some journalists a few days later, he reiterated, “You either have to believe in the 10th Amendment or you don’t. You can’t believe in the 10th Amendment for a few issues and then [for] something that doesn’t suit you say, 'We’d rather not have states decide that.'" By the time Perry announced his presidential candidacy he had come to discover theretofore hidden wisdom in the adage that a foolish consistency is the hobgoblin of little minds. After being criticized by groups opposed to same-sex marriage and abortion, he declared himself in favor of amending the Constitution to prohibit the former and restrict the latter.
One need not conclude that Governor Perry had it right the first time to concede that he had a point. That point is that conservatives can’t credibly offer themselves as the restorers of constitutional federalism at the same time they insist that every policy goal important within their own coalition must be settled on a national basis rather than a federal one.
This question divided two of the most conservative Supreme Court justices in 2005. According to Antonin Scalia, the federal government, in its efforts to enforce federal laws that outlawed the use of marijuana and which recognized no medical exceptions, had a constitutional right to ignore and effectively overrule a state law permitting the medicinal use of that substance. In some circumstances, he wrote, federal "regulation of an intrastate activity" such as growing marijuana in conformity with a state law for use in reducing the side effects of chemotherapy, "may be essential to a comprehensive regulation of interstate commerce." In this instance, Scalia wrote, "Drugs like marijuana are fungible commodities." As a result, “marijuana that is grown at home and possessed for personal use is never more than an instant from the interstate market – and this is so whether or not the possession is for medicinal use or lawful use under the laws of a particular State."
In disagreeing with Justice Scalia and the Court’s majority, Justice Clarence Thomas took a position much closer to Perry’s initial one. The authorities arrested and prosecuted the plaintiffs in the case (Gonzales v. Raich) for violating a federal law, the Controlled Substance Act, by using homegrown marijuana “that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything – and the Federal Government is no longer one of limited and enumerated powers.” The power conferred on Congress by the Constitution to "regulate commerce among the several states" must be interpreted and applied, Thomas insisted, based on how those ideas were understood by the Americans who wrote them. Thus,
Certainly no evidence from the founding suggests that "commerce" included the mere possession of a good or some purely personal activity that did not involve trade or exchange for value. In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana.
It’s worth noting that as recently as 1919 Congress and the states believed that the federal government's power to regulate interstate commerce did not necessarily extend to alcoholic beverages, another intoxicating substance used for medicinal and recreational purposes. It was, as a result, thought necessary to amend the Constitution to ban "the manufacture, sale or transportation of intoxicating liquors" in order for Congress to acquire the authority to supersede regulations previously exercised solely by state and local governments. So widely was Prohibition considered a debacle that the nation took the extraordinary step of amending the Constitution again, just 14 years later, to de-nationalize and re-federalize the regulation of alcoholic beverages.
There are reasons, then, to believe that the tensions in Governor Perry’s views on federalism are ones he comes by honestly. It would be very useful to have a rule drawing a bright line between where the states’ proper authority ends and the federal government’s begins. The 10th Amendment – "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people" – is probably not that rule. Court decisions and legal scholars have, for the most part, treated the amendment as a tautology, one stipulating that the federal government must not do that which the federal government must not do.
Even if conservatives can’t find or draw the bright line that makes sense of federalism, however, they do not have to think of federal power on the principle of the Cole Porter song that became popular during the New Deal – "Anything Goes." The New Deal sensibility viewed the involvement of the federal government as the preferred and almost automatic option for addressing any social problem, placing the burden of proof on those who opposed each new expansion of the federal authority to show, specifically, how it exceeded the federal government’s proper sphere.
Perry, Scalia, and Thomas—though they may disagree in some instances about what it means in practice — all appear to agree with the opposite view, as expressed by James Madison in Federalist 45:
The powers delegated by the proposed constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.… The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.
The challenge, then, is not to come up with a clear, simple rule that fixes the federal-state boundary. It is to reestablish the pre-New Deal presumption that the logic of the Constitution places the high burden of proof on those who advocate, rather than those who oppose, federal government activism. In the absence of a compelling case that protecting the lives, liberty, and property of the people requires such activism, constitutional conservatives will seek to forge a consensus against it, in courthouses, legislative chambers, coffee shops… and polling booths.