Response to Alablawg #3: On federalism and Knight v. Alabama

My position is that the U.S. Constitution affirms that both the national and state governments have certain inherent powers that cannot be abridged by the other without amending the Constitution. I am no less a proponent of the rights of the national government than I am of the rights of the states. An adherence to the proper constitutional balance between the two serves to protect individual liberty and more generally, to preserve and enhance the benefits of union. It is entirely appropriate that those who would upset that balance - and who have actively attempted to do so - should be held up to public criticism.

In Knight v. Alabama, the plaintiffs asked the federal courts to force the State of Alabama to raise taxes on its citizens, claiming that such a course was necessary in order to eliminate continuing de facto segregation in the state's education system. I objected that the proposed remedy finds no basis whatsoever in the text or historical understanding of the Constitution, and that it would itself be an unprecedented and unconsitutional usurpation of power by the federal courts. As I stated in Monday's post on the Alabama professors who supported the plaintiffs in Knight:

Maintaining the proper constitutional balance between the federal government and the states is essential to the Republic’s survival under the present Constitution. That these seven respected and influential professors of law and history would have us deviate so radically from that balance - while caring not a whit for the consequences - is really quite disturbing.

Wheeler responds to that with a jab intended to discredit me based on guilt by association - an association which he makes, not me.

What I wanted to say was “Well, thank the Lord we have knowledgeable folks like Lee - who have studied at the feat [sic] of historical and legal scholars like Rush Limbaugh, Dinesh D’souza, Ramesh Ponnuru and Ann Coulter - to save us from the silly mistakes made by people like Charles Gamble, Wayne Flint [sic] and Howard Walthal [sic].” But that would just be snarky.

While I'm sure that Limbaugh, D'Souza, Ponnuru, and Coulter are staunch defenders of federalism and that they would find the idea of court-imposed taxation without representation just as appalling as I do, that is entirely irrelevant to my argument. If Wheeler had intended to make a plausible case for his side (whatever that is - your guess is as good as mine), he would have discussed the two quotations I cited by Mister Federalist himself - Alexander Hamilton - the only constitutional scholar whose opinion I appealed to in either of Monday's posts.

Now, Hamilton was often accused by his detractors of being a monarchist; he certainly cannot be accused of having an excessive concern for states' rights. Even so, Hamilton sought to alleviate the fears of those who were concerned that the Constitution would allow the national government to run roughshod over the states. I found Federalist 28 and 32 particularly relevant to the current discussion, but Wheeler ignores them altogether and instead sarcastically implies that I'm a con-law ignoramus, without ever saying why.

In criticizing the Knight plaintiffs and the seven friendly professors, I pointed out that their views on federalism are quite radically different from what the Constitution establishes. The "tone" of my posts, to which Wheeler objects, was indeed a bit harsh, but harshness was entirely appropriate, in my view. When a group of distinguished lawyers and professors attempts to interpret the Constitution in a manner that its framers agreed it would never be interpreted, I find it disturbing. Wheeler implies that my "tone" is a sure indication that I endorse a more radical view of states' rights which I in fact adamantly reject:

Lee, though, following in the footsteps of George Wallace, Roy Moore, and Tom Parker, seems to think that even if the allegation was true, no federal court could do anything about it. Alabama, in his view, would be perfectly free to violate the constitution. That’s where I get off the boat. If Alabama was using its tax structure to perpetuate segregation, then I agree wholeheartedly that Alabama’s funding system would have to be radically changed, even if that meant changes in the tax code. Alabama is subject to the law just like you and I are subject to the law.

Again, Wheeler has set up a straw-man argument and attacks that, rather than responding to my position. So, let me be clear: if a state law contradicts the federal Constitution, then the federal courts are entirely justified in overturning that law in accordance with the Supremacy Clause in Article VI of the Constitution. No state is free to violate the Constitution. Period.

However, Alabama's tax code does not violate the Constitution, and those who have suggested otherwise should be slapped in the face with a wet noodle. Which is pretty much what the Eleventh Circuit Court of Appeals did in its Knight decision - a decision which Wheeler says he agrees with, as do I.

If Wheeler puts forth any specific objections to what I have actually argued with regard to federalism and the Constitution, he should state clearly what those objections are, and I'll be happy to respond. If he instead insists on attributing to me views that I do not hold, and then proceeds to proclaim a debate victory after attacking those straw men, I'll probably still summon the will to respond, but please pardon me if my "tone" isn't very cordial.