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Recalibrating the Power Balance

By Staff writer of The Christian Science Monitor / January 6, 2000

Not a shot has been fired. Nor have voices risen in anger. Yet the national government in Washington is today facing the most substantial threat to the expansion of its power in more than 60 years.

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It has nothing to do with terrorist bombs, street demonstrations, or any hint of political chicanery. Rather, this quiet revolution involves carefully reasoned legal arguments in a constitutional dispute as old as the nation itself.

The battleground is the gleaming, white-columned halls of the US Supreme Court, where a slim majority of conservative justices are embarked on an effort to restore what they see as the proper balance of power between the federal and state governments.

The court's conservative wing, led by Chief Justice William Rehnquist, believes Congress has grossly overstepped the limits of the "enumerated powers" written into the US Constitution by the Founding Fathers.

It is a debate that could fundamentally change America - from gun control to educating the nation's children.

In a series of rulings throughout the 1990s, the conservative justices have struck down what they concluded were impermissibly expansionist federal policies and initiatives. At the same time they have upheld the sovereignty of states and breathed new life into the 10th Amendment, which reserves to the states or to the American people all rights not specifically delegated to the federal government.

Federalism is the system of shared power between national and state governments set up by the Founding Fathers to help diffuse power and prevent the central government from becoming too strong. While Federalists in 1787 advocated creation of a powerful, central government, those advocating federalism today are seeking the resurgence of a federal/state balance as mandated in the Constitution.

Future course of government

Legal scholars and other experts are split over the significance of the court's actions. Some see the string of federalism rulings as the start of what could become one of the most important shifts in constitutional doctrine in Supreme Court history.

Others say that the court's rulings when considered in the context of the vast growth of federal power at the expense of the states - particularly in the past 60 years - amount to little more than minor constitutional tweaking.

Nonetheless, the continuing debate and a new crop of major federalism cases pending before the high court this term are raising the same fundamental questions about the future course of government in America that the Founding Fathers debated in 1787.

"It is too early to be sure, but it certainly is a tentative return to first principles," says Roger Pilon, director of the Center for Constitutional Studies at the libertarian Cato Institute in Washington.

"James Madison wrote in 'The Federalist,' No. 45 that the powers of the federal government are 'few and defined.' That hardly describes the federal government today," he says. "And that is the dilemma that the court faces in these federalism cases, namely: how to square the Constitution we have with the government we have."

Some conservative legal scholars aren't optimistic about the high court's prospects.

"They show some reawakened interest in federalism as a constitutional value, but I think it will fall well short of the original plan to limit the federal government to specified powers," says Robert Bork, a former federal appeals court judge and Supreme Court candidate whose views were deemed too conservative by some members of Congress.

"I don't think it is possible to limit the national government in the way that the Constitution contemplated," he says. "If you really went back to the original understanding of federalism, you'd have to say Social Security, Medicare, Medicaid, civil rights law, and labor law were all unconstitutional - and that is just ridiculous."

Mr. Bork adds, "If I was a judge who was going to rule that way, I would want to get a running start and get out of the country."

At the time the Constitution was drafted in 1787, two primary concerns drove the negotiations.

Some delegates pushed for a strong national government that could settle disputes among the states, facilitate commerce and trade, and provide for the defense of all the states. Such nationalists, or Federalists, worried that the states would not survive without a strong union.