690
Opinion of the Court
authority," which in turn demands (we finally come to the point) "necessary legislative flexibility" for the people's representatives in Congress. Post, at 702-703. The proposition that "the protection of liberty" is most directly achieved by "promoting the sharing among citizens of governmental decisionmaking authority" might well have dropped from the lips of Robespierre, but surely not from those of Madison, Jefferson, or Hamilton, whose north star was that governmental power, even—indeed, especially—governmental power wielded by the people, had to be dispersed and countered. And to say that the degree of dispersal to the States, and hence the degree of check by the States, is to be governed by Congress's need for "legislative flexibility" is to deny federalism utterly. (Justice Breyer's opinion comes close to admitting this when the only example of a "federalism" constraint that it can bear to acknowledge as being appropriate for judicial recognition is the invalidation of a State's law under—of all things, given the passion for text that characterizes some parts of his opinion—the "dormant Commerce Clause," post, at 703.) Legislative flexibility on the part of Congress will be the touchstone of federalism when the capacity to support combustion becomes the acid test of a fire extinguisher. Congressional flexibility is desirable, of course—but only within the bounds of federal power established by the Constitution. Beyond those bounds (the theory of our Constitution goes), it is a menace. Our opinion today has sought to discern what the bounds are; Justice Breyer's dissent denies them any permanent place.
Finally, we must comment upon Justice Breyer's comparison of our decision today with the discredited substantive-due-process case of Lochner v. New York, 198 U. S. 45 (1905). It resembles Lochner, of course, in the respect that it rejects a novel assertion of governmental power which the legislature believed to be justified. But if that alone were enough to qualify as a mini-Lochner, the list of mini-Lochners would be endless. Most of our judgments in-
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