At the beginning of the twentieth century, constitutional law did not sharply distinguish between questions of structure and questions of rights.1 To the contrary, the Court self-consciously defined individual rights in ways designed to attain structural ends, and, conversely, defined congressional power in ways designed to protect individual rights. The modern divide between structure and rights did not emerge until after the constitutional crisis of the New Deal.
That crisis was triggered by the Court’s attempt to restrict legislative efforts to respond to the Great Depression. President Roosevelt responded by seeking to pack the Court. When the dust settled, the country opted for an arrangement in which, roughly speaking, Congress would be allowed to define the scope of national power while federal courts would be authorized to scrutinize whether that power had been exercised in a manner that violated constitutional rights. This division of labor lasted until the mid-1990s, when a new generation of justices, intent on establishing constitutional limits on what had become a virtually unchecked expansion of federal power, began to unravel the New Deal settlement.
The question of national power concerns the capacity of the national government to meet national needs. When the federal government is constitutionally prevented from addressing what it regards as a national problem, the country faces a vacuum of power that can have potentially serious consequences. For this reason, judicial limitations on federal power raise the most urgent questions of national well-being.
Americans have traditionally understood the division of power between federal and state governments to express the value of federalism. Until the New Deal, the concept of dual sovereignty lay . . .
- 1This paper is taken from a talk given at the 1857th Stated Meeting of the American Academy of Arts and Sciences held on March 21, 2002.