The Aggregate Affects Test and Due Process
Jones v. United States

Federalism as Individual Right

Most people say that because I am a federalist, then I support states' rights.  They say I should keep company with the likes of a Jesse Helms, Trent Lott, or John C. Calhoun.  My employers and friends would find tha ironic, since the past 2 years I have worked soley on plaintiffs' Section 1983 and criminal cases for the defense.  Is a civil libertarian like me confused?

No.  Federalism is an individual right that should be as jealously guarded as the rest of the Bill of Rights.  In the criminal context, it becomes manifestly clear why. 

Each time Congress exercises power over offense conduct that is also a state crime, the following injustices occur:

  • 1. A citizen may suffer successive prosecutions because the Supreme Court held that it does not violate the Double Jeopardy Clause to allow the state and federal governments to prosecute the same individual for the same offense conduct if that conduct violates both state and federal law.  The pit bull gets two bites at a defendant'’s jugular.
  • 2. A citizen is subject to harsher penalties under federal law because most states confer upon their judges extensive discretion: the Guidelines provide almost none.  State prosecutors know this and often threaten to dismiss state charges to allow their friends at the US Attorneys office to file in federal court.
  • 3. A citizen is not afforded his full constitutional rights.  This is because the federal Bill of Rights provides a floor on individual rights.  States may not offer less protection in their state constitutions than are provided in the Constitution, but states may offer more.  When a citizen is prosecuted in federal court for acts that also violate state law, the individual is not receiving his full potential protection under the law.
  • 4. Acts that do not violate state law may violate federal laws.  The best example of this the federal crime of statutory rape, one of many Mann Acts.  It makes it a crime to move interstate to have sex with someone under 18 years old.  And although the age of consent varies from state to state, it is not a defense that the states from which (and to which) one moved has a lower age of consent than under federal law.  Thus, a person who travels from State A, where the age of consent is 16 years old to State B, where the age of consent is also 16 years old has committed statutory rape.

It is thus obvious that federalism has implications on individual rights.  But is it a right in itself?

The capital-f Federalists - most notably, Alexander Hamilton and James Madison - vociferously argued against a Bill of Rights.  They argued that listing individual rights was unnecessary because Congress' power was curtailed.  Congress can not reach you.  Its power is too narrow.  The structure of the Constitution limits federal power and thus leaves the people more free.

The structure of the Constitution was not enough for many states -- They conditioned their consent to the Constitution on the immediate amendment of the Constitution by adding a Bill of Rights.  Madison and Hamilton lost that debate.

Indeed, included in the Bill of Rights is the Tenth Amendment, which provides that "The powers not delegated to the United States by the Constitution [ ] are reserved to the States respectively, or to the people."  Since the Tenth Amendment is included in the Bill of Rights, it is tautological to say that we have an individual right to be free from excessive Congressional power.

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