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Dean's Address
To
Form A More Perfect Union
By
Wayne Fisher
From time to time, I think it is not only appropriate
but also essential to remind ourselves, as members of the
International Academy of Trial Lawyers, of the purpose for our
existence. Are we merely a fraternal or collegial group enjoying
the warm friendship of one another or do we have an even higher or
more lofty purpose?
Recently, I refreshed my memory by rereading the
Certificate of Incorporation for the IATL filed in 1954. It
specifically states, among other things, that:
"The purposes for which the said corporation
[IATL]
is to be formed are as follows:
“..To
cooperate with and make recommendations to legislative bodies. .
promote reforms in the law facilitate the administration of
justice . ."
This address deals with a very serious problem that
should concern us all; that is, the alarming frequency with which
federal courts in recent years have held that federal law preempts
state law in areas that affect the lives of all our citizens.
While this problem may, at first blush, sound somewhat esoteric,
it is a problem that goes to the very heart of our system of
government and how it will function in the future. I offer the
following remarks to inform and challenge you.
In the past year, we celebrated the 200th anniversary
of our Bill of Rights. We celebrated the strength and stability of
our government, as we watched other govermnents fall. We
celebrated the genius of our Fathers, in whose vision we now enjoy
our liberties.
As we embark on our third century as a nation, the
time for celebration has ended, and the time for work has begun.
The great German poet, Goethe, who lived through a crisis of
freedom, said to his generation: " What you have inherited
from your fathers, earn over again for yourselves or it will not
be yours."1 We must work as hard now to preserve
our liberty as the Framers did to create it.
As trial lawyers, we have some difficult work ahead.
Right now, in our courts, our constitutional structure is under
attack.
Our Constitution was founded upon the principle of
dual sovereignty between the states and the federal government.2
The rights given to the federal government by our Constitution
were "few and defined"; the rights given to states were
"numerous and indefinite."3 This balance of
power between the states and the federal government, or what has
come to be known as the principle of federalism, was the bulwark
of our Constitution.
However, during the last five years, we have
witnessed a dramatic erosion of our federalist structure. Under
the doctrine of implied preemption, federal courts have eradicated
powers and rights of states that have existed since the founding
of the republic. This usurpation of states' rights is
unprecedented. And, as Professor Laurence Tribe has said, this
view of preemption "has the burning force of a prairie fire,
and it is hard to see what structures of state compensation would
survive the ensuing
conflagration."4
This is not just an ideological debate. This is real.
Each day in our courts citizens are being stripped of their rights
and remedies. States are being stripped of their powers to make
and enforce their own law. The very concept of federalism is being
preempted.
To comprehend the threat we face, we must understand
the historical bases for the delineation of powers between our
federal and state governments. I will first address the larger
context of the origins of federalism and its erosion. A good
starting place for this discussion is the Articles of
Confederation. Those articles united the thirteen states but
failed to provide a system of governance. The confederation had no
executive. The individual republics were bound together, as one
commentator has said, by a "rope of sand."5
The Constitution was established in order "to
form a more perfect union...."6 And
the shape of that union was the subject of inspired debate. There
were those who felt that the new country needed a strong central
government to harmonize the discord among individual states. There
were others who feared that such a government would prove fatal to
individual liberties and state sovereignty.
The Constitution struck a compromise over the balance
of power between the states and the federal government.7
Under this compromise, states possessed concurrent sovereignty
with the federal government, subject only to the limitations of
the Supremacy Clause.8 The Federal government was
granted limited enumerated powers, while state governments
retained all other powers.9 James Madison wrote that
under the Constitution the states' powers extended "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."10
The debate over these issues continued even after the
Constitution was adopted. Many expressed concern about the
"implied powers" of this new federal government and the
failure of the Constitution to address or protect individual
liberties and the powers of state governments. 11 A cry
arose for a bin of rights to resolve these concerns. Although some
felt that an independent judiciary and state constitutional
protections were enough to prevent abuses of federal power and
transgressions on individual liberty, most agreed that a bill of
rights was required. The Bill of Rights was soon adopted.12
In addition to the provisions to protect individual
liberty, the Bill of Rights contains an explicit check on abuses
of power by the federal government. The Tenth Amendment to the
Constitution provides that " [t]he 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.
"13 If the federal government acts
outside its enumerated powers, Hamilton wrote, it invades the
residuary powers of states and commits "acts of usurpation."14
While the retention of state sovereignty served to
protect individual liberties and prevent abuses by the federal
government the federalist structure created a tension between the
dual sovereigns. This power struggle between state and federal
governments ‑ a power struggle which is inherent in our
Constitution ‑ is today being waged in our courts.15
And, as Justice Sandra Day O'Connor has stated, "[i]n the
tension between federal and state power lies the promise of
liberty.”16
In the two centuries since its inception, the grand
design of federalism has been eroded. Much of this erosion is due
to politics. As a general matter, the political party in office
inclines toward a broad construction of the Constitution and an
increase in federal power, while the party not in office tends toward
a strict construction and a return of power to the states.17
The appointed judiciary is not immune from such politics since the
views and philosophies of prospective judges are taken into
account in the process of their political appointments.
A Federalist judiciary, led by John Marshall, first
recognized the "implied powers" of the federal
government and annulled a state law which conflicted with those
"implied powers.”18
A New Deal judiciary first recognized the power of Congress, under
the Commerce Clause, to regulate virtually any activity.19
From those premises, it seems the present judiciary is in the
process of severely undermining federalism, as the Framers
conceived it.
This new judicial. activism presents an unusual
paradox. In my lifetime, "states‑righters" were
generally considered very conservative on the political spectrum.
The concept of "states rights" conjures up images of
Dixiecrats and others who zealously fought for the principle that
primary governmental authority should remain in our individual
states. A conservative judicial philosophy embraced the view that
courts should not engage in judicial activism and assume the
mantle of legislators. Ironically, however, some conservatives on
the courts now seem to lead the charge to undermine federalism
through judicial activism.
First, the present judiciary has removed the Tenth
Amendment as a check on abuses of federal power. That amendment,
which was so important to the Framers, no longer has much legal
significance. In 1985, the Supreme Court held that the boundaries
of federalism are to be politically settled, rather than
judicially maintained.20 Justice Powell, in dissent,
said that the decision "rejects almost 200 years of the
understanding of the constitutional status of federalism." 21
Second, the present Judiciary has expanded the
doctrine of implied preemption to eliminate states' rights and
remedies, even without expressed premption by Congress and without
provision of an alternative federal remedy. Professor Tribe calls
this new breed of premption a "major departure from
established principles of federalism."22
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