In my article about Fred Thompson’s record on tort reform on federalism, I noted that he had, contrary to some news reports, supported many instances of it. I suggested that on one issue where many conservatives had differed with him — federal legislation on medical malpractice — Thompson was right and most conservatives were wrong. My remaining concerns about his record, Thompson reasonably says, “hardly constitute[] the stuff of a major dispute.” Yet my 712-word article has nevertheless occasioned a 1,120-word response from the former senator.
Thompson does not spend much time on the individual policy disputes involved here, preferring to raise the level of philosophical abstraction. I’ll follow his lead. On tobacco, I’ll just note that Thompson continues to see the anti-tobacco lawyers’ fees as a matter of “freedom of contract,” which is sort of ridiculous given the context I explained in my article. Asking that officers of the court not get sweetheart deals from state attorneys general to whom they had given campaign contributions isn’t the same thing as regulating a candlestick maker. I’m sure Thompson’s legislation on preemption, meanwhile, would have led to a lovely philosophical conversation about federalism — in some alternate universe.
But there’s no reason we can’t have that conversation here. Senator Thompson’s passion for federalism is refreshing, and I share his desire for open debate on the subject. That debate would profit from the avoidance of caricature. I don’t believe, and said nothing to indicate that I believe, that “the commerce clause allows the Feds to regulate anything affecting commerce, no matter how remote.” Nor do I believe that conservatives should “pick the result we want” based on who we consider to be “bad guys” and legislate accordingly. I am no more “applying [a] conservative litmus test” than Senator Thompson is in his response. Senator Thompson questions my “commitment” to federalist principle. I think it would be more accurate to say that we have different understandings of what federalist principles, and their implications, are.
I believe that the Founders’ design requires the federal government to keep states from interfering with interstate commerce. (It is, incidentally, bizarre that Thompson name-checks James Madison, who wanted the Congress to approve all state legislation and worried that the Constitution’s restrictions on state governments were “not sufficient.”) Large areas of federal law — see, for instance, telecom, securities, health insurance, and airline law are devoted precisely to this purpose. On Senator Thompson’s professed principles, however, we should have dueling state regulations to govern these industries and called it “federalism.”
The word “federalism” does not appear in the Constitution. But the Constitution does lay out specific rules for the interaction of states with one another and with the federal government, and a theory about those relations can be inferred from it. The federal government can, and has, violated those rules and that theory, and Thompson has steadfastly resisted those encroachments. But state governments can do the same thing, and increasingly do. Senator Thompson has given more thought to federalism than, I would guess, any of the other presidential candidates. But he has never shown any evidence that he understands this point, either in his Senate career or in this peculiar letter.
