Speaking at this panel were:
David Barron, Professor of Law, Harvard Law School
Janell Byrd-Chichester, The Cochran Firm
Paul D. Clement, United States Solicitor General
Douglas T. Kendall, Executive Director, Community Rights Council
Denise C. Morgan, Professor of Law, New York Law School
David Barron explained that there are various inroads to the question as to whether federalism can be progressive and panel seemed to take many of those inroads during the panel discussion. Barron did offer his view that the answer to the question is that federalism had better be progressive.
David Kendall suggested that the question should be rephrased, in the context of the federal judiciary, to inquire as to whether federalism can be neutral. Kendall believes that federalism should be viewed as a fact and not an ideology. He added that the Supreme Court's federalism "chaotic and controversial" rulings made it difficult to view federalism as a fact. He argued that the Court's recent federalism rulings seem to fit the political ideology of the justices and not the Constitution. As an example, Kendall discussed Morrison, which declared the VAWA unconstitutional. 36 states filed amicus briefs in favor of the VAWA and one state urged the Court to declare it unconstitutional. Kendall quoted Justice Souter in explaining that the Supreme Court's decision essentially told the states that they would "have to except this view of state's rights, whether they like it or not."
Given the history of the use of federalism against civil rights on the state level, Denise Morgan was hesitant to support progressive view of federalism. She explained that federalism is double edge sword that would allow one state to expand civil rights and another others to embark in a downward departure from civil rights. Morgan argued that this was morally problematic for a nation that prides itself on universal rights. She also highlighted the importance of national regulation established by the Congress to establish a baseline of civil rights. State's rights federalism, according to Morgan, will only be progressive at the margins as allowed by conservatives and libertarians. She did suggest that there is room for progressives to adopt something like the "tailored federalism" that Justice Scalia has embraced. Scalia's tailored federalism distinguishes between different sources of Congressional power, interpreting the Commerce and Spending Clauses broadly and Section 5 very narrowly. The opposite reading is more likely to promote progressive politics. Morgan suggested that progressives should consider where a state's rights vision would further progressive agenda and where the federal approach is better and that we should remain consistent with the Constitution. She concluded by explaining that the view of the Constitution that we should remain loyal to is the post reconstruction and not the originalist constitution. She argued that progressives should look at the whole Constitution and not the pre-civil war Constitution. She added that it reasonable to think that the reconstruction amendments that created a new class of equal citizens must have altered something in our understanding of the Constitution.
Janell Byrd-Chichester suggest that to understand whether federalism can be progressive we have to look at what are the sources of power and authority and who controls those reigns. She said, "federalism better be progressive because of who currently controls the power." Like Morgan, she was hesitant to embrace federalism given its history with civil rights from before the civil war to reconstruction to Brown. Byrd-Chichester argued that the states are, in some ways, proving to be a better alternative than the federal judiciary. She pointed out that several states have embraced civil rights based on sexual orientation and opting out sovereign immunity protection. She also warned that the Supreme Court's civil rights jurisprudence has been moving to a decidedly negative position using federalism. However, she added, that because the power is currently concentrated in one party, the Court may be more comfortable allowing the Congress to legislate once again. Looking at the No Child Left Behind Act and class action legislation, Byrd-Chichester suggested that if the conservatives are aggressively pushing a federal programs, it is time for progressives might find push a prudent and effective, limited, but effective approach to look to the states and local government to advance the goals of civil rights.
Paul Clement follow that line of argument suggesting that if the Bush Administration is comfortable pushing a federal agenda then progressives should be naturally asking if there is something to the other side. Clement argued that federalism is too complicated to applied generally. He said, you have to ask, "is the average state government going to be more progressive than the federal government? If yes, then federalism has a progressive tint, but that is too simplistic. Federalism has distinct doctrines and constitutional provisions that need to be considered." He attempted to deconstruct the two major authorities federalism; the Commerce Clause and section 5 of the 14th amendment. He argued that, when you explore these two areas it is difficult to say whether federalism can be progressive. According to Clement, the Commerce Clause is a neutral authority that can be used for progressive and conservative ends, and is more open to the idea that it can be progressive. He added that the Justices tended, in some cases, to be more supported of progressive positions when they have a deferential view of congress's commerce clause authority. The difficulty in answering the question is whether there is a broad or narrow view of the 14th amendment's section 5 power. He explained that a narrow interpretation of section 5 does not lend to a progressive view of federalism. He added that a broad view lends itself to the problem that Denise Morgan discussed with some states expanding rights and some states departing downward. He concluded by suggesting that the that it arguably makes the most sense to use section 5 as a backstop to commerce clause arguments.
From the audience, Walter Dellinger suggested that the idea of progressives embracing federalism might just be progressives in the bargaining stage of grief. "Just gives us Vermont and Oregon so that two men can get married in Vermont and then they can die with dignity in Oregon."
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