Newsflash: Founding Fathers Were "Silent" on Federalism
Well, it was news to me.
In the midst of doing some research on federalism (thanks to all who replied to my related post), I picked up the 2008 book Enhancing Government by Erwin Chemerinsky, the hard-left Dean of the law school at U.C. Irvine (know thine enemy, or something like that). In the book, Chemerinsky proposes a new understanding of federalism as a doctrine that "empowers" all levels of government without limiting any of them. Neat trick, right? He brushes aside "originalist" arguments with the following gem about the Founders and federalism:
The text of the Constitution says virtually nothing about the allocation of power between the allocation of power between the federal and state governments. The framers were largely silent about this issue . . .
I doubled checked -- he is talking about the United States Constitution. Anybody care to defend (or even explain) this bizarre assertion?
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Jul '10
Re: Newsflash: Founding Fathers Were "Silent" on Federalism
If you take the Constitution as a stand=alone document, the case might be made. There is, of course, the slight issue of the 9th and 10th Amendments.
Re: Newsflash: Founding Fathers Were "Silent" on Federalism
But Article I limits Congress to exercising the specific powers "herein granted." Doesn't that speak volumes about the allocation of power?
Apr '11
Re: Newsflash: Founding Fathers Were "Silent" on Federalism
"The text of the Constitution says virtually nothing about the allocation of power between the allocation of power between the federal and state governments. The framers were largely silent about this issue . . ."
You have to be purposely obtuse to believe this nonsense.
Mar '11
Re: Newsflash: Founding Fathers Were "Silent" on Federalism
I'd suggest Prof Chemerinsky call in to Mark Levin's radio show - should be entertaining.
Re: Newsflash: Founding Fathers Were "Silent" on Federalism
A guy named Publius just whispered to me that Madison was involved in writing some columns..."Federalist" something or other.
Oct '11
Re: Newsflash: Founding Fathers Were "Silent" on Federalism
Bizarre! The founders were obsessed with the allocation of powers between the states and the federal government.
Nov '11
Re: Newsflash: Founding Fathers Were "Silent" on Federalism
I'm going to chalk it up to the shocking state of education in the country: either Chemerinsky has somehow ascended to the post of dean of a law school being entirely ignorant of the foundational document of federal law or he assumes we're all ignorant because we're not law school deans.
Sort of an even money bet there.
Jul '10
Re: Newsflash: Founding Fathers Were "Silent" on Federalism
Adam Freedman
But Article I limits Congress to exercising the specific powers "herein granted." Doesn't that speak volumes about the allocation of power?
On the other side, the clause incorporating the Common Law with its related traditions of a nearly unconstrained Parliament mitigates against. The Amendments cited strengthen the argument for the enumerated powers side while leaving the Common Law tradition in civil and criminal matters intact.
Jul '10
Re: Newsflash: Founding Fathers Were "Silent" on Federalism
Come now. Writings under a pseudonym have no credibility. Everyone knows that!
Edited on May 11, 2012 at 8:07pmDec '11
Re: Newsflash: Founding Fathers Were "Silent" on Federalism
Willful functional illiteracy?
Nov '11
Re: Newsflash: Founding Fathers Were "Silent" on Federalism
Adam Freedman
But Article I limits Congress to exercising the specific powers "herein granted." Doesn't that speak volumes about the allocation of power? · 13 minutes ago
You can't hear it speaking volumes when you have your fingers in both ears saying, "Nya! Nya! Nya! Nya! I'm not listening!" at the top of your lungs.
If you ignore the Bill of Rights and the Federalist papers, then throw in the weasel word "largely" to sand down some of the remaining rough edges, you can almost make that statement make sense. If you squint hard enough. In bad light.
Re: Newsflash: Founding Fathers Were "Silent" on Federalism
Sisyphus
Come now. Writings under a pseudonym have no credibility. · 0 minutes ago
On a slow news day we should have a "pseudonym explanation thread."
I'd love to know the story behind "Faded Midget Rattlesnake."
Mar '11
Re: Newsflash: Founding Fathers Were "Silent" on Federalism
Allocating power between the States and the Federal government was a main point of discussion in the Articles of Confederation and then the Constitution. If the autonomy of the State government was not maintained in the Constitution and the 10th Amendment it might not have passed at all.
Feb '11
Re: Newsflash: Founding Fathers Were "Silent" on Federalism
I'm told his hornbook is killer.
Edited on May 11, 2012 at 8:31pmRe: Newsflash: Founding Fathers Were "Silent" on Federalism
Do they offer remedial reading at UC Irvine? If so, Erwin Chemerinsky should sign up.
May '10
Re: Newsflash: Founding Fathers Were "Silent" on Federalism
Seriously, I suspect that his basis for the partially true assertion is the same as that offered by Michael Greve, that is, that the feds and the states are supposed to act as checks on each other- states have broader powers, feds stop the states from rapaciously beggaring one another in ways that weaken the total organism.
Extreme Articles-of-Confederation-based anti-central government views on our side sometimes forget that there are solid reasons for the dormant commerce clause. Federalism is more than running national defense while staying out of the way as the states do everything else.
Chemerinsky goes off the tracks when he promotes government empowerment without the corresponding limitations- the enumerated powers apply the limitation check to the feds, the feds use the DCC to check the states. Both parts are necessary.
Mar '11
Re: Newsflash: Founding Fathers Were "Silent" on Federalism
Do you think it's possible the founders did not waste words prohibiting usurpations they could not even imagine
May '11
Re: Newsflash: Founding Fathers Were "Silent" on Federalism
Austin Murrey: I'm going to chalk it up to the shocking state of education in the country: either Chemerinsky has somehow ascended to the post of dean of a law school being entirely ignorant of the foundational document of federal law or he assumes we're all ignorant because we're not law school deans.
Sort of an even money bet there. · 5 hours ago
Slightly off topic, but supporting your comment about the "shocking" state of education. Need to vent about attending my daughter's graduation today from a respected (not ivy league, but pretty selective) east coast school. There was no top line speaker, but the president, a dean or two and a couple of faculty members spoke. I was appalled by the level of banality and complete drivel. Did you know, for example, that 40% of the jobs in the capitol area of our state will go to people with the arts, music, and communications majors? Did you know that 90% of future business growth will come not from corporations, but from "cities?"
The redeeming point was that even my lovely liberal wife thought it was all nonsense. There's hope!
Oct '11
Re: Newsflash: Founding Fathers Were "Silent" on Federalism
Adam, I'm sure Chemerinsky is both a learned man and completely sincere in his absurd view of the Constitution and federalist principles.
I know it's tiresome, but my master Pavlov has trained me to deliver the following explanation whenever I hear expressions of surprise at leftist drivel. You rung the bell, I must obey.
The human mind, like any intelligence, is an instrument of prediction. Reason is not its mechanism, rather it is a model. The human mind is distinct from others only in that it is powerful enough to model itself. When functioning well, intelligence shapes itself to the external world. When relieved of the requirements of survival and responsibility, it is free to shape itself to its own fantasies and desires.
To be of the left is to fall, which is to choose to value the model over external reality, which is the mind of God, but that's a topic for another day. Put simply, Chemerinsky is an intellectual Onanist, an honest leftist.
Apr '11
Re: Newsflash: Founding Fathers Were "Silent" on Federalism
Terry Mott
Adam Freedman
But Article I limits Congress to exercising the specific powers "herein granted."
You can't hear it speaking volumes when you have your fingers in both ears saying, "Nya! Nya! Nya! Nya! I'm not listening!" at the top of your lungs.
If you ignore the Bill of Rights and the Federalist papers, then throw in the weasel word "largely" to sand down some of the remaining rough edges, you can almost make that statement make sense. If you squint hard enough. In bad light.
Chemerinsky helped me pass the bar, so I retain some affection for him; he's more capable than most of avoiding ridiculous partisan claims where they're inappropriate (in his book? totally appropriate place).
I don't think the Bill of Rights or Article I, though, are as key as remembering that the entire reason for having the Constitution was that the Articles of Confederation were wrong on the federalist balance of power. Literally no other issue even charted as motivation.