Federalism and Criminalization
by George W. Liebmann

Adam Cohen's alarmist article ("What's New in the Legal World? A Growing Campaign to Undo the New Deal", New York Times.Dec.14) suggests that the survival of modern commercial regulation is at stake in the pending California medical marijuana case, which is said to endanger the Supreme Court's holding in Wickard v. Filburn. The writings of Mr. Justice Jackson, the author of Wickard, refute the conclusion that the federal commerce power is coextensive with the police power, reserved by The Federalist No.45 to the states.

In a statement to the Columbia Oral History Project given shortly before his death and since reprinted in several places, Justice Jackson declared:

"I have been highly desirous of preserving the federalist form and keeping vitality in it.., At Nuremberg, it became apparent that until Hitler had broken down the powers of the separate German states and established a completely centralized police administration, he wasn't able to bring about the dictatorship. I think that the philosophy of the Tenth Amendment reserving the undelegated powers to the people or the states ought to be regarded as an essential part of our Bill of Rights. I think we should draw a line between the necessity for central regulation of commerce, in the sense of finance and trade, and the necessity for diffused control of such things as affect civil liberties. Because while the federal government occasionally may make a great advance in the direction of civil liberties they can also make a very disastrous reversal and do more harm to civil liberties in one administration than a state government could do in a generation... I think the potentialities of a federal, centralized police system for ultimate subversion of our system of free government is very great."

When the Kefauver crime investigations in 1950 began expanding the national police power, Jackson in United States v. Denmark declared this authority different from and less extensive than the commerce power: "No precedent of this court sustains the power of Congress to enact legislation penalizing failure to report information concerning acts not shown to be in or mingled with or found to affect commerce."

The federal drug legislation at issue in the present case is not on its face limited to promotion of lawful commerce or to acts ‘affecting commerce' but seeks to assert unlimited, plenary police jurisdiction to criminalize private acts. The Supreme Court has avoided passing on the validity of such jurisdictional claims, but it is significant that in 1968, when it was first asked to do so, Justices Black, a staunch New Dealer, and Justice Stewart dissented from the denial of review. Expansion of federal criminal jurisdiction, in fact, was no part of the New Deal. By reason of the repeal of national prohibition, not the least of the New Deal's reforms, the size of the federal policing establishment was smaller at the end of the Roosevelt and Truman administrations than at their beginning, notwithstanding the pressures of depression and war. It is also worth remembering that prohibition was thought to require a constitutional amendment and that even the 18th amendment, unlike today's drug legislation, did not authorize federal criminalization of use and possession, as distinct from distribution and sale.

It is not only conservatives, but liberals like the late Sen. Alan Cranston, Judge Jon Newman of the Second Circuit, the late Prof. Gerald Gunther of Stanford. and former HEW Secretary Joseph Califano who are alarmed at the explosive growth of the federal policing establishment since 1966, fueled largely by the ‘drug war'. Today the national government accounts for 18 % of law enforcement expenditures, as against 12% in 1982, and the number of federal prosecutors all of whom serve at the pleasure of the President has tripled since that year.

The horizontal or federal division of governmental powers and many other provisions of the Constitution and Bill of Rights were designed to prevent the re-creation on American soil of the centralized dictatorship of the Earl of Stafford, based on a standing army. The successful resistance of the Jeffersonians to the notion of federal common law crimes had similar roots, and Mr. Cohen's peculiar notion that the New Deal contemplated the federalization of law enforcement and of moral and social issues would have horrified most of its leading figures in the law, including not only Justices Black and Jackson, but Justices Brandeis, Frankfurter, and Douglas as well.

Chief Justice Rehnquist, a former Jackson law clerk who has been generous in upholding challenged economic legislation, has followed in that same tradition, particularly in United States v. Lopez. Let us hope that his influence and that tradition once again prevail in American jurisprudence as a protection against the potential dangers that so concerned Justice Jackson.

The author, a Baltimore lawyer and recently Visiting Fellow at Wolfson College Cambridge, is the author of the forthcoming The Common Law Tradition: A Collective Portrait of Five Legal Scholars (Transaction Books)

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