DEPARTMENTS:
We Hold These Truths

By Douglas W. Kmiec

Doug Kmiec toasts the Supreme Court’s return to federalism

In 1985, the U.S. Supreme Court abandoned any genuine effort to restrain the federal government from usurping constitutional powers reserved to the states. In his dissenting opinion for Garcia v. San Antonio Municipal Transit Authority, however, Justice William Rehnquist confidently predicted that federalism would "in time again command the support of a majority of this Court." Twelve years later, the revival of federalism has become the clearest legacy of the Rehnquist Court.

In U.S. v. Lopez (1995), for example, Rehnquist, now the chief justice, reminded Congress that it cannot rely upon its constitutional power to regulate "interstate commerce" to ban the mere possession of a gun in a school zone, unless it can clearly show that such conduct somehow involves "commercial channels, instrumentalities, or interstate economic activity." This was the first such notice of restraint in more than 60 years. Last year, Rehnquist and his colleagues again shielded the sovereignty of the 50 states by deciding that Congress cannot use its commerce power to subject states to lawsuits in federal court (Seminole Tribe of Florida v. Florida). These decisions, however, were merely a prelude.

The Comeback

In the Supreme Court term that ended in June, the justices resolved a number of prominent cases involving privacy rights, religious freedom, and other vital constitutional issues. Landmark decisions in their own right, they collectively revive federalist principles across a range of areas:

Law enforcement. By a 5-4 vote, the Court struck down Congress's attempt, under the federal Brady Gun Control Act, to force local law-enforcement officials to conduct background checks on individuals seeking gun licenses. This provision of the Brady Act was the ultimate unfunded mandate. Under the law, local sheriffs were pulled away from their assigned state and local duties in order to perform the required background checks. Congress asserted that it could force state and local officeholders to assume this federal function under the Supremacy Clause of the Constitution.

Not so fast, said the Court. Writing for the majority in Printz v. United States, Justice Antonin Scalia observed, "Our constitutional system of dual sovereignty is fundamentally incompatible with conscripting state and local officials to carry out federal programs." The Supremacy Clause merely requires state and local governments to comply with federal laws that are consistent with the Constitution, and so it "merely brings us back to the question" of whether laws conscripting state officials violate the Tenth Amendment.

The clearest legacy of the Supreme Court’s Rehnquist Era
is the revival of federalist principles.

To answer that question, Scalia relied upon a careful examination of "the historical understanding and practice" of federal-state relations. Although the federal government argued that the earliest Congresses had required the participation of state officials in the implementation of federal laws, a closer look demonstrated an "utter lack of statutes imposing [such] obligations." When the federal government fell back on Alexander Hamilton's more general observation in The Federalist Papers that "the [national] government [might] employ the ordinary magistracy of each [state] in the execution of its laws," Scalia aptly responded that the federal litigants missed Hamilton's critical assumption: The state had to give its consent.

Justice Sandra Day O'Connor had laid the groundwork for the Printz decision back in 1992 in New York v. United States. Relying on a meticulous review of constitutional history, her majority opinion held that Congress lacked the power to require states either to legislate on or take title to certain radioactive waste. "States are not mere political subdivisions of the United States," wrote Justice O'Connor. "State governments are neither regional offices nor administrative agencies of the United States. . . . Whatever the outer limits of [state] sovereignty may be, one thing is clear: The Federal Government may not compel the states to enact or administer a federal regulatory program."

Interestingly, Justice Clarence Thomas wrote a concurring opinion in Printz to remind the Court of the need to "temper" federal power in certain respects beyond shielding state officials from unlawfully imposed duties. Thomas emphasized that the federal government exercises enumerated, and hence limited, powers, and he underscored his point by citing Marbury v. Madison's caution "that [so] those limits may not be mistaken, or forgotten, the Constitution is written."

Religious freedom. Congress apparently forgot these very limits when it vastly overextended its power under the Fourteenth Amendment to enact the Religious Freedom Restoration Act (RFRA). Passed by Congress and signed into law in 1993 by President Clinton, RFRA was aimed at reversing a 1990 decision written by Scalia holding that religious believers had to obey local, state, and federal laws generally applicable to all citizens, even if they had the unintended effect of burdening religious exercise. Congress mistakenly interpreted its enforcement power under the Fourteenth Amendment as license to substitute its own standard of constitutional protection for religion in place of the Court's.

The Court's 6-3 vote to strike down RFRA was controversial, but the justices really had no choice. A statute that assumes Congress can define what does and does not count as protected religious exercise is a threat both to the Constitution's text and, ultimately, to religious freedom itself. Writing for the majority in the RFRA opinion (Flores v. City of Boerne, Texas), Justice Anthony Kennedy reminded Congress of the basics: "Congress does not enforce a constitutional right by changing what the right is." Otherwise the Constitution would have no greater permanence or stature than ordinary legislation.

Although the Boerne decision was widely noted for restoring the proper balance of constitutional authority between the legislative and judicial branches, the Court's holding is also firmly grounded in the need to avoid the "considerable congressional intrusion into the states' traditional prerogatives and general authority to regulate the health and welfare of their citizens." Had the Court sustained the law's broad assertion of Congress's Fourteenth Amendment enforcement authority, it would have seriously upset the balance of federal-state power. The 1866 Congress that drafted the Fourteenth Amendment expressly rejected an early version of the amendment akin to RFRA's position, Kennedy noted, because it would have been "an utter departure from every principle ever dreamed of by the men who framed our Constitution."

Without the asserted federal power to legislate grandly upon "life, liberty, and property," religious freedom is hardly in jeopardy of state oppression. In Boerne, the Court recognized that Americans' religious freedom depends less on broadly worded statutes than on specific, well-recognized constitutional limits on government power. Church and state can be separate only when government does not expand to occupy the entire terrain of daily life. With or without RFRA, all laws that clearly disfavor religion without compelling justification already violate the First Amendment. And whenever state and local governments attempt to stifle or punish religious exercise covertly under laws that appear to apply generally, the Court's decision invites Congress to create remedies proportionate to such constitutional violations as they arise.

Assisted suicide. At their core, the recent cases regarding assisted suicide (Washington v. Glucksberg and Vacco v. Quill) are federalism cases as well. Advocates for the terminally ill had maintained that their clients' fundamental rights were violated by state laws in New York and Washington that banned doctors from helping patients kill themselves. In order to find this putative right, wrote Rehnquist, the Court "would have [had] to reverse centuries of legal doctrine and practice, and strike down the considered policy choice of almost every state." This the Court wisely and unanimously chose not to do. A practice disapproved by Anglo-American common law for more than 700 years was not a good candidate for being treated as a "fundamental right" deeply rooted in the traditions and history of the nation.

Unfortunately, four of the nine justices couldn't resist writing that in some future case they might find a more limited right for particular patients-depending perhaps on the degree of their pain or on some amorphous concept of dignity. These concurring justices could not articulate what they were talking about, except to warn that if any state attempted to ban the administration of painkillers, the Court would "revisit its conclusion." Presumably, pro-pain state legislatures are now on notice.

Despite these unfortunate concurrences, the assisted-suicide cases are models of judicial restraint when compared with the Court's abortion decisions of the last 24 years. The assisted-suicide advocates had based their claims on the same "privacy rights" that the Court, in Roe v. Wade, had discovered imbedded in the Due Process Clause of the Fourteenth Amendment. In rejecting these arguments, the Court could distinguish assisted suicide from abortion only by saying that even personal autonomy has its limits.

The Framers knew this and expressed it in relation to even the highly cherished liberties of speech and religion, by qualifying such freedoms with provisos not to "demean oneself" or to conduct oneself in other than a "peaceable and orderly manner." These qualifiers preserve liberty from being degraded into mere license and, in so doing, remind us that liberty exists as a means to each person's proper end or purpose. No Framer understood self-destruction as a necessary means to the "pursuit of happiness."

The Explanation

What explains the Court's rediscovery of federalism? It surely results from efforts to re-anchor constitutional interpretation in the original meaning of the document. Antonin Scalia has led this drive. In a recent book, A Matter of Interpretation, he regrets that "the ascendant school of constitutional interpretation" is that of the "Living Constitution," a "'morphing' document that means, from age to age, what it ought to mean" in the minds of judges. This, Scalia predicts, will not long go unnoticed by the people. If the Constitution's interpretation no longer depends upon "a close examination of the text, history of the text, traditional understanding of the text," then the people "will look for qualifications other than impartiality, judgment, and lawyerly acumen in those whom they select to interpret it. More specifically, they will look for judges who agree with them."

This, predicts Scalia, will be the end of the Bill of Rights. Indeed, it would signal the end of the rule of law. Perhaps because of these dire consequences, liberal and conservative justices alike gave greater weight this term to originalism.

Given the limitations of human intellect, this did not always lead to unanimity. That is to be expected. As Scalia explains, "[t]here is plenty of room for disagreement . . . as to how original meaning applies to [any] situation before the court." My own originalist examination of our historical roots, for example, suggests that Scalia himself may underestimate the relevance of the Founders' belief in natural law-the "unalienable rights" that lie beyond the authority of any law, constitution, or government. In Printz, Justice John Paul Stevens argued that the Court's majority paid inadequate attention to the intentions of the Framers as expressed in the Federalist. Justices may reach different conclusions, but as Scalia writes, "the originalist at least knows what he is looking for."

The principle of federalism has come once again to "command the respect of a majority of the Court," as Rehnquist predicted, because the Court this term chose to credit the Constitution as it was written. Until now, in the area of federalism, the Court was not so much interpreting constitutional text and history as it was citing its own precedent-that is, talking to and within itself.

The Work Ahead

Much remains to be done in righting the imbalance in federal and state powers. For example, despite the Court's holding in Lopez that Congress does face theoretical limits on the power it claims in the name of interstate commerce, the lower courts are still struggling to read the Court's mind. The majority opinion in Lopez cites, but neither explains nor overrules, the many prior cases that tolerate sweeping exercises of federal authority.

In his Printz opinion, Thomas reminds the Court of its promise in Lopez to better "root the [Commerce] Clause [in its] original understanding." For that to be done-no small task given the breadth of federal regulation based on the Commerce Clause-the Court will need to stop treating "economic activity" and "commerce" as synonymous. Certainly private and personal acts-even marriage and divorce-have interdependent and external economic effects. However, to accept that postulate as a proper constitutional basis for federal regulation is to render impossible the very design of a limited federal government. Is there a Rehnquist-led majority for restoring the Founders' interpretation of commerce as the actual exchange of goods and services?

The Court ought to address as well the erosion of states' authority resulting from the federal government's unfettered power to spend. Before the New Deal era, Congress's authority to spend money was restricted to those purposes enumerated in Article I of the Constitution. In a thinly reasoned opinion of the late 1930s, however, the Court assented to congressional spending for any purpose Congress deemed necessary to "promote the general welfare" of the nation. Many early presidents, including Madison, objected strenuously to such unchecked spending.

Although it may be too late to renew Madison's particular objection, it is conceivable that the Court may someday re-examine the extent to which the federal government may condition aid to states on the "voluntary" adoption of certain federal policies. One case already on the Court's docket for next term, U.S. v. Salinas, may give the Court a chance to limit such conditions that have the effect of expanding the criminal jurisdiction of the federal government well beyond its interstate authority.

Can we count on the originalist-and federalist-trend of the past term to continue? Perhaps, although much of the federalism revival is still based on precarious 5-4 majorities. Justice David Souter, in a concurring opinion in one of the assisted-suicide cases, outlined a theory of "substantive due process" that might lead the Court astray once again. Souter makes no pretense of grounding his interpretive method in constitutional text or history. He invites his brethren instead to speculate whether the democratic choices of state governments amount to "arbitrary impositions" or "purposeless restraints."

This is not the present way of the Rehnquist Court, nor can it be if federalism's revival is to continue. In the patient and pragmatic words of the Chief Justice, "the outlines of the 'liberty' specially protected by the Fourteenth Amendment-never fully clarified, to be sure, and perhaps not capable of being fully clarified-have at least been carefully refined by concrete examples involving fundamental rights found to be deeply rooted in our legal tradition."

"This approach," wrote the Chief Justice, is one that "tends to rein in the subjective elements that are necessarily present in due-process judicial review." It is also the only approach consistent with any meaningful respect for the Tenth Amendment's reservation of all unenumerated powers "to the States . . . or to the people."