Professor Hamilton argues that the Court should narrow Congress's power in the name of protecting states' rights. But her last post reveals that she begs the key questions. She condemns "irresponsible enactments" and laments "unchecked power." Neither of these criticisms reflects the reality of the Supreme Court's decisions.

As for "irresponsible enactments," the Court used federalism to invalidate a law requiring states to clean up their nuclear wastes and to strike down a statute requiring states to do background checks for permits for guns. The Court used federalism to invalidate a federal law that allowed victims of rape and domestic violence to sue in federal court after finding, in a voluminous legislative history, that state courts often failed to provide adequate remedies. These hardly were irresponsible enactments.

As for "unchecked power," state and local laws that violate individual rights always have been reviewable in the courts so it is wrong to speak of "unchecked power." Indeed, the Supreme Court's federalism decisions have enhanced the unchecked power of state governments by greatly expanding sovereign immunity. Because of the Rehnquist Court's decisions state governments cannot be sued, in federal court or state court or federal agencies, without their consent. For example, the Supreme Court has held that a state cannot be sued if it violates patent law or discriminates on the basis of age or fails to pay overtime as required by law. This is unchecked power.

The crucial question is where John Roberts in on these issues. Will he follow the precedents since 1937 which have accorded the federal government needed authority to deal with social problems? Or will he favor radical new limits on necessary authority? If the latter, he should be rejected.