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Chemerinsky's idea of "Enhancing Government."

Jonathan Adler points to Jon O. McGinnis's review of Erwin Chemerinsky's new book "Enhancing Government: Federalism for the 21st Century. The book sketches out the liberal position on the various federalism issues, and this is the position that ? McGinnis aptly asserts ? you can expect Obama-appointed Supreme Court Justices to take.

Chemerinsky argues (unsurprisingly) that the Constitution's enumerated powers in fact permit Congress to reach any matter it chooses to regulate. What is left to the states is what Congress deigns to leave to the states. On questions of federal court jurisdiction, Chemerinsky would give the party he would like to advantage ? the civil plaintiffs and criminal defendants who assert federal rights ? their preference whether to litigate in state or federal court. And Chemerinsky would make it hard for federal law to preempt state law, and this would preserve the regulation of business at dual levels of government, federal and state.

If voters think about Supreme Court appointments at all, they usually focus on the scope of individual constitutional rights (especially abortion). I wish people would pay attention to these federalism issues. As McGinnis writes, the liberal position on federalism is very widespread and elaborately worked out in the legal academy. The Burger and Rehnquist Courts were somewhat successful in keeping this thinking from migrating into the case law. Chemerinsky's idea of federalism is not simply expanding federal power at the expense of the states. It's more complicated (and more policy-oriented in its complication). Even though this approach allows Congress to regulate anything, it preserves state regulation where Congress has not expressly preempted it, and it preserves the power of state courts when a litigant with a federal law right prefers state court. So the liberal idea of "Enhancing Government" is about expansive federal regulatory power combined with enthusiasm for regulating business and enforcing federal rights.

Maybe you like that idea. I'm just saying: Think about it.

Full post as published by Althouse on July 15, 2008 (boomark / email).