Judicial Power

When you think of the original framing, and really the first 150 years of the role of the U.S. Supreme Court, it just was not as nearly significant as it's become in the last 75 years or so. So you might ask yourself what happened. Ah there are two big things that have happened. First, the power of Congress has grown over time. After the 1930's in particular, Congress, has been given more power to regulate, primarily through the interstate commerce clause. So the definition of interstate commerce has grown over time. And if Congress has more power, that means there are more federal statutory disputes for the federal courts to resolve. So that's one way in which the federal courts’ power has grown. But the other way, maybe the most significant, has been the incorporation of so many of the federal constitutional guarantees. So the Bill of Rights which is ratified in 1791 and has the free speech, free exercise clauses, Second Amendment, due process clause, those all applied just to the federal government. And it wasn't until the 1920's and 30's that some of those guarantees in the Bill of Rights started to apply to the states through the doctrine of incorporation, using the due process clause to incorporate those guarantees and make them applicable to the states. And of course, by the end of the Warren court most, not all, but most provisions in the Bill of Rights, the first eight provisions in the Bill of Rights, had been made applicable to the states. That dramatically increased the role of the federal courts and the U.S. Supreme Court in determining the meaning of our American constitutional liberty guarantees. And what has happened over time is a system in which we have largely overlapping powers, where the federal government has overlapping powers with the state legislatures. And one can complain about that. One can say that's not consistent with the original understanding, or one can choose to adapt to it and think about what might still work about federalism in this world of overlapping power. So now, the person in Omaha Nebraska doesn't think Omaha as a city is doing something they should, or Nebraska as a state is doing something it should, they can go to the state constitution, the state courts, and then go to the Federal Constitution, the federal courts. It's not like the score of a football game. And, you know, has the federal government gone up 35 to 10 and are they about to finally win the game? No. The game, God willing, keeps going on for centuries. As new circumstances present themselves, we re-calibrate the roles of the states and the roles of the national government.