Two types of Federalists?
November 23, 2004
My political views often surprise people. My criminal defense lawyer friends are always shocked to learn that I support school vouchers. My conservative friends (who consider me a loyal ally) groan when they learn I support decriminalizing almost everything. But especially confusing to my liberal friends is my membership in the Federalist Society.
I can understand the confusion, and it exists because liberals assume there is only one type of Federalist. But unlike the left, we Federalists are diverse.
I think there are two main types of federalists: the Heritage-Federalists and the Cato-Federalists. Our different approaches on policy, especially on crime and federalism, can be illustrated by comparing two different discussions on overcriminalization.
In Measuring the Explosive Growth of Federal Crime Legislation, sponsored by the Heritage Foundation, former Attorneys General Edwin Meese and Richard Thornburgh criticize Congress' willingness to criminalize garden-variety crimes, e.g., car jacking.. Some of the reasons they disagree with the growth of the criminal code include Congress' stepping on the toes of sovereign states, and the high economic cost to pay the law enforcement officers (including generous salaries and pensions). However, not once did Mssrs. Meese or Thornburgh talk about how unjust it is for a person's conducted to be covered by overlapping federal and state laws.
Heritage-Federalists are still down with the establishment, the only difference is they prefer smaller units of goverments. Powerful states are fine, a powerful federal government is less desirable.
Cato-Federalists are more of the anti-establishment wing. We are as concerned with individual rights as the ACLU. We differ with the ACLU on many issues, though, because unlike the left, we think that less government leads to greater individual liberty.
Thus, in this amicus brief, the Cato Institute argued against a broad reading of the Commerce Clause because:
Federal Duplication of State Criminal Codes Threatens Individual Rights.
The passage of the federal statute governing “interstate domestic abuse” is part of a trend in which Congress has been duplicating state offenses in the federal criminal code, particularly on “hot-button” issues suitable for political posturing. See AMERICAN BAR ASS’N, TASK FORCE ON THE FEDERALIZATION OF CRIMINAL LAW, THE FEDERALIZATION OF CRIMINAL LAW (1998) at p. 2. That expansion of federal authority into areas the Framers never intended undermines many aspects of the constitutional structure they designed, throwing the system out of balance in ways that threaten individual rights and liberty.
For example, the Framers of the Bill of Rights intended that no person should “be subject for the same offence to be twice put in jeopardy of life or limb,” meaning that a person cannot be punished twice or prosecuted after an acquittal for the same crime. U.S. Const. amend. V. But this Court has ruled that a state prosecution will not bar a subsequent federal prosecution for the same conduct, because the state and federal governments are “separate sovereigns” with distinct interests to protect. Abbate v. United States, 359 U.S. 187 (1959). The “separate sovereign” doctrine would not often compromise the constitutional protection against double jeopardy if the federal government were restricted to its enumerated powers and created federal crimes only to address the genuinely national issues within its authority. But the duplication of state criminal codes, exemplified in the “interstate domestic abuse” statute, threatens to render double-jeopardy protections meaningless.
Moreover, the federalization of state crimes may deprive the accused of rights and procedural protections afforded by state law but not applicable in federal prosecutions. For example, states may provide broader protections against entrapment, broader rights to pretrial discovery, and even a broader right to counsel. See KAMISAR, LAFAVE, AND ISRAEL, MODERN CRIMINAL PROCEDURE 49, 392-97, 1128-36 (7th ed. 1990). Federal duplication of state criminal codes creates the potential for those rights and protections to be circumvented by the simple expedient of prosecution in federal rather than state court. Indeed, the Petitioner in this case has cited evidence that she was prosecuted in federal court in part so that New York’s requirements for corroboration of accomplice testimony could be avoided. Pet. at p. 24.
But perhaps most importantly, the demise of the doctrine of enumerated powers would leave all individual rights in jeopardy because it would eliminate the Constitution’s first line of defense against an overweening central government. The Bill of Rights was added to the Constitution as a “back-up” system, but the primary protection was meant to reside in the enumeration and hence limitation of powers. As one scholar has noted, “[t]here is no reason to believe * * * that the Bill of Rights itself will survive over the long term if the rest of the plan is abandoned. As National Aeronautics and Space Administration engineers say, once you start relying on the backup systems, you are already in trouble.” Reynolds, supra, CATO INSTITUTE POLICY ANALYSIS NO. 216, Oct. 10, 1994, at p. 28.
Heritage-Federalists care about federalism because it strengthens the states. Cato-Federalists support federalism because it will help individual liberty flourish. It's two different worldviews ( though as we get into nuance, we agree more with each other). So now you know not to prejudge a member of the Federalist Society. Odds are that the Federalist Society is more diverse than the ACLU.