An Entrenched Legacy: How the New Deal Constitutional Revolution Continues to Shape the Role of the Supreme Court 9780271035000

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AN ENTRENCHED LEGACY

AN ENTRENCHED LEGACY How the New Deal Constitutional Revolution Continues to Shape the Role of the Supreme Court

patrick m. garry

The Pennsylvania State University Press University Park, Pennsylvania

The author is greatly indebted to Candice Spurlin and appreciative of her enormous contribution in shepherding this book to publication.

Library of Congress Cataloging-in-Publication Data Garry, Patrick M. An entrenched legacy : how the New Deal constitutional revolution continues to shape the role of the Supreme Court / Patrick M. Garry. p. cm. Includes bibliographical references and index. ISBN-13: 978-0-271-03280-1 (cloth : alk. paper) 1. Constitutional law—United States. 2. Constitutional history—United States. 3. New Deal, 1933–1939. I. Title. KF4541.G37 2007 342.7302⬘9—dc22 2007021217 Copyright 䉷 2008 The Pennsylvania State University All rights reserved Printed in the United States of America Published by The Pennsylvania State University Press, University Park, PA 16802–1003 The Pennsylvania State University Press is a member of the Association of American University Presses. It is the policy of The Pennsylvania State University Press to use acid-free paper. This book is printed on Natures Natural, containing 50% post-consumer waste, and meets the minimum requirements of American National Standard for Information Sciences—Permanence of Paper for Printed Library Material, ANSI Z39.48–1992.

FOR MICHAEL AND ELIZABETH GARRY

contents

Introduction 1 1 The New Deal Constitutional Revolution 11 2 At the Heart of the Revolution: The Constitution’s Structural Provisions 27 3 How the Administrative State Has Boosted Judicial Power 39 4 The Court’s Federalism Revolution 71 5 A One-Sided Federalism Revolution: Ignoring the Liberty Side of Federalism 101 6 Contradicting the Federalism Revolution: The Court’s Nationalizing Rights-Jurisprudence 133 Conclusion: A Stifling of the Democratic Process 179 Index 189

introduction

One of the most enduring and heated public controversies of the past half century has involved the role and power of the Supreme Court. Judicial activism has been blamed for an array of unpopular decisions in which the Court has seemingly gone outside the text of the Constitution to create new kinds of rights. This activism has, according to critics, allowed the Court to masquerade its members’ political views as constitutional principles. Under this interpretation, the Court’s growing power results simply from raw politics, from Justices intent on shaping American society according to their own personal ideology. Unquestionably, the Court has decided many highly controversial cases over the past half century. It has crafted a right of privacy, under which it has given constitutional protection to a minor’s right to use contraceptives and obtain an abortion.1 It has cited ‘‘evolving standards of decency’’ in striking down state capital-punishment laws.2 It has carved out a dissenter’s right from the First Amendment Establishment Clause and has used this right to nullify holiday religious displays and student prayers recited before high school football games.3 It has applied its free speech rules to overturn regulations confining sexually explicit programming on cable television to late-night hours and to strike down restrictions on Internet distribution of computer-simulated child pornography.4 It 1. See Carey v. Population Services International, 431 U.S. 678 (1997); Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976). 2. See Roper v. Simmons (2005). 3. See County of Allegheny v. aclu, 492 U.S. 573 (1989); Santa Fe ISD v. Doe, 530 U.S. 290 (2000). 4. See United States v. Playboy Entertainment Group, 529 U.S. 803 (2000); Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002).

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has given First Amendment protection to nude dancing and has mandated free public education for the children of illegal aliens. And in all these cases, the Court has used its power to overrule the judgment of a democratically elected legislative body. The Court’s individual-rights activism, however, cannot be explained simply by politics. Justices do not always act as a cohesive liberal or conservative block. Each decision cannot simply be analyzed according to the political views of the respective Justices. Just as the Court itself is larger than any of its individual members, so too are the dynamics of the Court’s role in the constitutional system much larger than the particular ideologies of the Justices. The expanding presence of the Supreme Court in American life, along with its steady encroachment on the legislative process, is in many ways the result of entrenched constitutional forces set in motion during the New Deal—forces that transcend the ideologies of individual Justices. A constitutional revolution that occurred during the New Deal shaped the role of the Supreme Court for the remainder of the twentieth century and into the twenty-first century. To uphold the economic and social legislation being sponsored by President Franklin D. Roosevelt, the Court in the late 1930s dramatically changed course and virtually abandoned the constitutional doctrines of federalism and separation of powers. These doctrines had been used by the Court during FDR’s first term to invalidate various federal programs that usurped traditional state powers and breached traditional lines of separation between the branches of government. It has generally been thought that the Court’s withdrawal from the realm of federalism and separation of powers has in turn diminished its role in the constitutional system. But contrary to this general impression, just the reverse has occurred. Although the constitutional dictates regarding separation of powers were greatly eroded by the New Deal’s transfer of legislative authority to the executive branch, via administrative agencies, the Supreme Court has nonetheless experienced a substantial increase in power as a result of the growth of the administrative state. This increase in power stems from the fact that the Court has far more capacity to review and scrutinize the work of administrative agencies than it does the work of Congress. Consequently, because of

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the transfer of power from Congress to administrative agencies, the Supreme Court can now exercise authority over matters that were outside its jurisdiction prior to the establishment of the administrative state. A similar effect occurred in the area of federalism. The Court’s abandonment of the federalism doctrine during the New Deal not only favored Congress at the expense of the states, but more generally supported a centralization of power at the national level. This shift of power to the national level inevitably, though again indirectly, strengthened the authority of the Supreme Court. Thus, the areas from which the Court more or less withdrew itself—federalism and separation of powers—turned out to be areas in which it eventually found itself strengthened. A flip side of the New Deal’s constitutional revolution involved the matter of individual rights. While surrendering much of its authority over the Constitution’s structural provisions relating to limited government, the Court intensified its involvement in the area of individual rights. On one level, this heightened activism may have resulted from the Court’s desire to consolidate its power in an area considered most suitable to judicial involvement; but on another level, it was a necessary reaction to what the Court had done with respect to federalism and separation of powers. Because of the Court’s abandonment of federalism and separation of powers principles, a more intensive judicial oversight of individual-rights issues was almost an inevitability. The purpose of structural provisions like federalism and separation of powers was not only to provide an organizational scheme for different governmental entities and layers, but to create a system of limited government that would protect individual liberty through the vertical and horizontal checks and balances of federalism and separation of powers.5 To the framers, the Constitution would safeguard liberty through a government of structurally restrained powers, not through judicial enforcement of selected individual rights.6 Under the federalism doctrine, independent state governments would monitor the power of the federal government to infringe on 5. M. J. C. Vila, Constitutionalism and the Separation of Powers (New York: Oxford University Press, 1969), 14. 6. Ervin Pollack, Jurisprudence (Columbus: Ohio State University Press, 1979), 74.

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the liberties of its citizens. Whereas the Bill of Rights protections were limited to certain selected individual freedoms, federalism had a much broader scope: it would protect liberty as a whole, in every aspect in which it could be threatened by a distant central government. During the New Deal, however, this liberty aspect of federalism was largely abandoned when the Court upheld legislation giving broad powers to the national government. The notion of protecting liberty through the maintenance of limited and divided government gave way to the desire to ensure economic security through a powerful and activist central government. Having given up this structural protection of liberty, the post– New Deal Court began focusing almost exclusively on the substantive individual-rights provisions in the Constitution as a way of protecting individual freedom. It was this focus, for instance, that led the Court to derive new, unenumerated rights out of the general language of the Constitution, such as the right to privacy. Instead of relying upon the structural organization of the Constitution to protect privacy, the Court created a specific substantive right. In the 1990s, the Rehnquist Court embarked upon a ‘‘federalism revolution’’ that sought to revive the pre–New Deal role and authority of the states. In several high-profile cases, the Court struck down various federal encroachments on state autonomy.7 But this federalism revival has gone only halfway. Although it has tried to curtail the power of Congress and to reestablish a more balanced intergovernmental relationship, it has not given effect to the liberty-preserving aspects of federalism. And because the Court has not relied on a revived federalism to provide a structural protection of liberty, it has not lessened its activism on substantive individual rights. In its one-way federalism revolution, the Court has limited the power of only one of the federal branches—Congress. It has not restrained its own power, nor has it applied the federalism doctrine as intended by the framers—for example, as a primary means of protecting individual liberty. The Court has addressed only that side of federalism that looks to governmental organization, not the 7. See New York v. United States, 505 U.S. 144 (1992); Printz v. United States, 521 U.S. 898 (1997); U.S. v. Morrison, 529 U.S. 598 (2000).

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side that secures liberty. To address this liberty aspect of federalism, however, would necessarily entail a reconsideration of the Court’s role as it has developed since the 1930s. Throughout the modern federalism revolution, the Court has never cut back on its activism regarding substantive individualrights issues. Instead of increasing its reliance on a revived federalism to protect liberty, the Court continues to maintain the kind of individual-rights jurisprudence embraced by the Warren and Burger Courts of the 1960s and 1970s. Even though the framers intended the primary security for individual rights to rest in the Constitution’s structural features, the Supreme Court is now widely viewed as the sole guarantor of such rights.8 But during the debates surrounding the drafting and ratification of the Constitution, the protection of liberty through judicial review of substantive individual rights was rarely mentioned; preserving liberty through judicially created rights that serve as trump-cards on the democratic process was hardly contemplated.9 With America becoming an ever more individualistic society, and with individual rights becoming the most heated and publicly followed constitutional issues, as evidenced by the overwhelming weight given to the right of privacy in recent Supreme Court nomination hearings, the Court’s monopolization of these issues has thrust it into an increasingly influential and powerful role in society. Indeed, with its confirmation process so contentious, so ‘‘managed like an election campaign,’’ the Supreme Court has virtually become, according to many critics, ‘‘a third political branch.’’10 Rather than encouraging a decentralized rights-federalism, in which states have greater leeway to balance social values against their own particularized views of individual rights, the Court has consolidated individual-rights doctrines at the national level and dictated to the entire nation a uniform view and application of individual liberty. In this respect, according to Robert Nagel, the 8. Michael Uhlmann, ‘‘Wretched Judicial Excess,’’ First Things (November 2002): 49. 9. Larry Kramer, Putting the Politics Back into the Political Safeguards of Federalism, 100 Colum. L. Rev. 215, 266 (2000). 10. Christopher DeMuth, ‘‘Unlimited Government,’’ The American Enterprise (January 2006): 19.

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Court has proved ‘‘hostile to the basic impulses underlying a robust form of federalism.’’11 With issues ranging from what limits should be placed on abortion, to whether pornographic speech can be kept from minors, to how public religious symbols may be displayed, the Court has refused to permit much diversity in state policies and has instead imposed a uniform mandate on the entire country. Looking back over nearly seventy years of constitutional history, one can detect an inverse relationship between the Court’s activism on substantive individual rights and its enforcement of structural provisions such as federalism. The less the Court enforces these structural provisions, the more it relies on creating and enforcing substantive individual rights. But by stepping back from a reliance on substantive individual rights as the only protection of individual liberty, the Court might rediscover the structural ways in which the Constitution protects liberty as a whole. The chain of reasoning goes as follows: If federalism constitutes a structural protection of liberty, and if only after abandoning federalism in the late 1930s did the Court intensify its scrutiny of substantive individual rights, then the revival of federalism in the modern age should likewise bring about a lessening of judicial activism on individual rights, since a revived federalism would itself serve as a heightened protection of liberty. A renewed emphasis on the Constitution’s structural protections of liberty would also help revive a notion that has practically disappeared in constitutional law: the notion that individual freedom can and must coincide with majoritarian rule. Indeed, this libertyprotecting role of federalism has been recently resurrected by political liberals in their crusade to keep same-sex marriage an issue of state jurisdiction. Yet by monopolizing within itself all authority regarding individual-rights issues, the Court has set in motion a growing antagonism between democratic rule and individual liberty. It has declared that, even in a democracy, a centralized high court offers the only protection for liberty, and that this protection trumps every other concern of society. Thus, any issue involving individual rights gets swept up by the courts and withdrawn from 11. Robert Nagel, The Implosion of American Federalism (New York: Oxford University Press, 2001), 69.

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the political process, including even the military’s handling of detained foreign combatants.12 Because such handling obviously involves the individual rights of those foreign combatants, the Court has intervened in an area traditionally governed by the President. Contrary to the growing diversity in American society, the Court is becoming an increasingly centralizing institution. With respect to religion, for instance, the Court’s centralized mandates impose a contrived uniformity on society. By using the Establishment Clause to create an all-encompassing ‘‘dissenter’s right,’’ the Court dictates how every state and community must handle any issue surrounding the public expression or display of religious beliefs. The development of the right of privacy also reflects the way in which the Court uses centralized mandates concerning individual rights to dictate policy choices and social values to the nation at large. According to the Court’s privacy rulings, a centralized judiciary can better determine the parameters of individual autonomy and dignity than can any democratically elected legislature. The Court has defined privacy as involving those individual choices ‘‘central to personal dignity and autonomy’’ that help ‘‘define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.’’13 And the choices that qualify as vital to human development, according to the Court, include the choice to engage in sexual conduct and the choice to have an abortion. Consequently, under the Court’s privacy rulings, a judicially articulated national mandate on sexual privacy can trump all other community values. Perhaps more than any other individual right, the right of privacy is one that could be adequately secured through the Constitution’s structural provisions. Privacy is not the kind of minorityrights issue on which the courts should possess sole authority. Everyone, regardless of race, religion, or income status, is interested in privacy; it is not a special concern of an isolated minority group. Indeed, if one is to believe the courts, everyone sees sexual conduct as being essential to self-definition; thus, everyone has an interest in, for example, the issue of contraception availability. Conse12. See Rasul v. Bush, 124 S. Ct. 2686 (2004). 13. Planned Parenthood v. Casey, 505 U.S. 833, 851 (1992).

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quently, privacy can be best protected through the Constitution’s structural provisions that ensure the integrity and functioning of the democratic process. Protecting privacy interests through structural provisions of the Constitution would also allow for more flexibility, in contrast to the locking-in of particular judge-made versions of particular rights.14 Because of the way privacy has evolved as a court-created right, there exists an unprincipled arbitrariness in the current constitutional doctrines. Why, for instance, did the Court pick sexual activity as the area covered by privacy rights? And what if there are many people who define themselves not through their sexual activities but through some other activity? Indeed, evidence that the framers did not recognize or even contemplate any kind of right to sexual privacy can be seen in the plethora of eighteenth- and nineteenth-century laws punishing adultery.15 The irony of the constitutional right of privacy created by the courts is that it exists in a society where every aspect of personal privacy other than sexual conduct is being eroded. Sexual privacy is constitutionally protected, even though identity and informational privacy are under increasing attack from new technologies.16 Yet the Court has not extended its privacy concerns to those attacks. And even more ironical, especially when one considers the constitutional efforts the judiciary has made to create a right of privacy, the Supreme Court has greatly aided the invasion of privacy by ruling that the media may publish or broadcast with impunity the contents of intercepted personal communications known to have been unlawfully intercepted, so long as the media did not participate in the unlawful interception.17 14. See Tom Campbell, Separation of Powers (Stanford: Stanford University Press, 2004), 20. 15. See Carolyn B. Ramsey, Sex and Social Order: The Selective Enforcement of Colonial American Adultery Laws in the English Context, 10 Yale J. L. & Human. 191, 208–13 (1998). 16. See generally Patrick Radden Keefe, Chatter: Dispatches from the Secret World of Global Eavesdropping (New York: Random House: 2005); Robert O’Harrow, No Place to Hide, 24 J. Marshall J. Computer & Info. L. 35 (2005) (outlining all the ways in which personal data can be acquired and people’s movements and activities can be followed or recorded). 17. Bartnicki v. Vopper, 532 U.S. 514, 52 5 (2001) (ruling that the media are immune from civil damages suits brought under the Wiretap Act).

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The Court’s privacy decisions have been among those that have attracted the most vehement criticism. However, to understand the dynamics of these decisions, one must look not just to the decisions themselves but to the underlying constitutional foundation and impetus for those decisions. Furthermore, only by assessing this constitutional framework can one begin to fully address the effects of these so-called activist decisions. The individual-rights activism of the Court not only exerts a stifling effect on the democratic political process; it breeds a public dependence on the moral and cultural edicts of a centralized judicial authority. Because many individualrights cases now involve controversial and unsettled moral issues, the more the courts monopolize these issues the more the public becomes dependent on letting some higher, undemocratic institution address the cultural dilemmas that an increasingly fragmented public would just as soon avoid.

1 the new deal constitutional revolution

A Revolution Brought On by Crisis The economic depression of the 1930s created the most cataclysmic social crisis in American history. Tens of millions of people lost their homes and means of livelihood. From 1929 to 1933, nearly two-fifths of all corporate businesses failed.1 One quarter of the working-age population was unemployed. Civic institutions and the rule of law were threatened by social upheaval and revolution. In response to this crisis, the Hoover administration had relied on the same instruments of public aid that had been used during the previous economic depressions of the nineteenth century—state governments. But upon his election, President Franklin D. Roosevelt instead turned to the national government, believing that only the centralized power of the federal government could offer any meaningful relief. This unprecedented expansion of federal power was met with a series of constitutional challenges. Many of these challenges involved the federal administrative agencies that were formed to implement the New Deal relief programs. To perform the wideranging duties imposed on them, these agencies incorporated within themselves a combination of all three constitutional powers—legislative, executive, and judicial.2 Although this combination sought to achieve efficiency in government, it contradicted tradi1. Forrest McDonald, A Constitutional History of the United States (Malabar, Fla.: Robert Krieger, 1986), 193. 2. Cindy Buys and William Isasi, An Authoritative Statement of Administrative Action: A Useful Political Invention or a Violation of the Separation of Powers Doctrine? 7 N.Y.U. J. Legis. & Pub. Pol’y 73, 89 (2003).

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tional separation of powers principles. However, the urgent needs of a traumatized society seemed to demand decisive, unified, and powerful governmental action, unencumbered by separation of powers constraints. Contrary to the beliefs of the founding era, strong centralized government during the New Deal period was seen not as a threat to liberty but as a savior of a broken society. And to make possible that saving role, the Court was called upon to sanction the granting of wide, unspecified powers to administrative agencies. But no matter how much the Court tried to rationalize this unprecedented delegation of governmental powers, any real attempt to apply separation of powers criteria would, to proponents of the New Deal, have prevented the government from effectively meeting the emergency demands being put upon it.3 In addition to eroding the separation of powers doctrine, the New Deal also undercut the principles of federalism that had long characterized America’s system of governmental organization and responsibility. Because of the crisis posed by the Great Depression and the perceived need to exert massive federal control over the nation’s economy, President Roosevelt ‘‘quickly scrapped his earlier states’ rights views’’4 and instigated a vast increase in federal power. Although the states had previously served as the primary venue for self-government, during the New Deal they appeared helpless to address the social crisis brought on by the Great Depression.5 Furthermore, the notion that the states would act as a check on the federal government seemed irrelevant, given the need for swift, decisive national action. Thus, the New Deal agenda posed significant problems for existing constitutional doctrines on federalism and separation of powers. On one hand, the Court had to recognize the pressing social needs that the new federal programs sought to address; but on the other, the Court had to confront the question of whether it was 3. Jamison Colburn, Democratic Experimentalism, 37 Suffolk U. L. Rev. 287 (2004). 4. David B. Walker, The Rebirth of Federalism (Chatham, N.J.: Chatham House, 1995), 94. 5. Cass Sunstein, Constitutionalism After the New Deal, 101 Harv. L. Rev. 421, 442 (1987).

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going to ignore constitutional doctrines that the framers had seen as vital to the American constitutional scheme. The resolution of these questions not only determined the fate of the New Deal, but dictated the course of constitutional law during the remainder of the twentieth century. Not surprisingly, during the half century following the start of the New Deal, both the federalism and the separation of powers doctrines effectively disappeared.6

The Court’s Initial Reaction to the New Deal One reason the New Deal reformers were drawn to the centralized administrative state was their belief that agencies would provide independent, expert avenues for social change.7 As Cass Sunstein notes, New Dealers—like the Progressives before them—saw administrative agencies as insulating public officials from partisan pressures.8 But to achieve this insulated objectivity, the New Deal reformers had to reject the traditional notion of separation of powers. This was easy to do, since to them ‘‘the system of separated functions prevented the government from reacting flexibly and rapidly to stabilize the economy and to protect the disadvantaged from fluctuations in the unmanaged market.’’ Consequently, with respect to the administrative state, the New Deal ‘‘was a selfconscious revision of the original constitutional arrangement of checks and balances.’’9 Believing that a system of checks and balances produced governmental inaction, the New Dealers sought to remake the distribution of governmental powers. According to Professor Sunstein, this transformation favored a system of more unified powers, which in turn, according to expectations, would facilitate more flexible government action employing the technical expertise and specialization of the agencies. Dissatisfied with the perceived failings of the political process, reformers believed that knowledgeable, en6. Steven G. Calabresi, Separation of Powers and the Rehnquist Court, 99 Nw. U. L. Rev. 77, 79 (2004). 7. Keith E. Whittington, Dismantling the Modern State? The Changing Structural Foundations of Federalism, 25 Hastings Const. L. Q. 483, 490–503 (1998). 8. Cass Sunstein, Constitutionalism After the New Deal, 421, 422 (1987). 9. Cass Sunstein, Constitutionalism After the New Deal, 424, 430 (1987).

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lightened experts, insulated from political corruption, would serve the public interest better than would elected representatives. As Roosevelt proclaimed, ‘‘the day of enlightened administration has come.’’10. When New Deal legislation first came before the Court in 1935, however, a majority of the Justices rejected the drastic transfer of power from the states to the federal government. The Court also struck down, through application of the nondelegation doctrine, the broad transfers of governmental power from Congress to the administrative agencies. The textual basis for the nondelegation doctrine is found in Article I, Section 1, of the U.S. Constitution, which provides that ‘‘[a]ll legislative Powers herein granted shall be vested in a Congress of the United States.’’11 The Court has held that this vesting clause prohibits the delegating of legislative authority to the executive.12 The nondelegation doctrine is also supported by the social contract theory underlying the constitutional scheme. Under that theory, as espoused by John Locke, society is bound to obey the laws enacted by democratic legislatures exercising the power delegated to them by the people.13 But this delegation of power runs only from citizens to their elected representatives. Another constitutional concept supporting the nondelegation doctrine is separation of powers. As James Madison wrote, ‘‘There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates.’’14 Initially, courts used the separation of powers principles to prohibit any delegation of legislative power to the executive branch. According to this classical view of the nondelegation doctrine: ‘‘That Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution.’’15 10. Franklin Delano Roosevelt, Campaign Address on Progressive Government (September 13, 1932) reprinted in 1 The Public Papers and Addresses of Franklin D. Roosevelt: The Genesis of the New Deal, 1928–32, at 752 (1938). 11. U.S. Const. art. I, § 1. 12. See Mistretta v. United States, 488 U.S. 361, 371 (1989). 13. See John Locke, Second Treatise of Government, ed. C. B. Macpherson (Indianapolis: Hackett, 1980), 52–65 (1690). 14. See The Federalist No. 47, at 245 (James Madison) (Gary Wills, ed., 1982). 15. See Field v. Clark, 143 U.S. 649, 692–93 (1892).

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The modern form of the nondelegation doctrine was first announced by the Supreme Court in Field v. Clark. In Field, the Court sustained a delegation contained in the Tariff Act of 1890, distinguishing between ‘‘the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution.’’16 Later, in J. W. Hampton, Jr. & Co. v. United States, the Court outlined the test for determining the scope of the nondelegation doctrine: ‘‘If Congress shall lay down by legislative act an intelligible principle to which the person or body . . . is directed to conform, such legislative action is not a forbidden delegation.’’17 The Court used this test in 1935 to strike down several attempted delegations. In Panama Refining Company v. Ryan, the Court found that the National Industrial Recovery Act of 1933 (nira) did not limit the President’s power to establish policies under the Act.18 The problem with the nira was that ‘‘Congress left the matter to the President without standard or rule, to be dealt with as he pleased.’’19 Five months after Panama, the Court rejected another provision of the nira. In A. L. A. Schechter Poultry Corp. v. United States, the Court struck down an even more sweeping delegation contained in the Act, one that authorized the President to approve ‘‘codes of fair competition’’ for ‘‘all trades and industries.’’20 Prior to 1937, the courts used federalism principles to resist the expansion of federal authority. The existing constitutional doctrines significantly limited congressional power to regulate local commercial activities.21 Leading up to the New Deal, courts in the 16. Id. at 693–94. 17. 276 U.S. 394, 409 (1928). 18. 293 U.S. 388, 417 (1935). 19. Id. at 418. 20. U.S. 495, 521–22 (1935). 21. See, e.g., Amazon Petroleum Corp. v. Railroad Commission, 5 F. Supp. 639, 644 (E. D. Tex. 1934) (finding that the nira involved excessive federal powers); Hart Coal Corp. v. Sparks, 7 F. Supp. 16, 28 (W. D. Ky. 1934) (invalidating wage and hours regulations issued under the nira); United States v. Lieto, 6 F. Supp. 32, 36 (N. D. Tex. 1934) (dismissing a prosecution for violating the Code of Fair Competition issued under the nira); Acme, Inc. v. Besson, 10 F. Supp. 1, 6–7 (D. N.J. 1935) (invalidating wage and hours provision set under the nira); United States v. Neuendorf, 8 F. Supp. 403, 406–7 (S. D. Iowa 1934) (invalidating an attempt to regulate purely intrastate commerce under the Agricultural Adjustment Act).

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late nineteenth and early twentieth centuries repeatedly cited both the Ninth and Tenth Amendments as dual guardians of federalism.22 During the New Deal, however, proponents of broad, centralized regulation argued that federal authority should extend far beyond the powers specifically enumerated in the Constitution.23 These proponents claimed that the federal government’s responsibility for the general welfare inherently included the sweeping authority to act during times of national emergency. In Schechter Poultry, the government claimed that its power to regulate local labor conditions ‘‘must be viewed in the light of the grave national crisis with which Congress was confronted.’’24 But the Court rejected this claim to unenumerated emergency powers, ruling that the exercise of such powers violated the Tenth Amendment. Similarly, in Carter v. Carter Coal Co., the Court again rejected the government’s claim of broad Commerce Clause powers and struck down portions of the Bituminous Coal Conservation Act of 1935, which had created joint labor-management boards to regulate prices and employment in the coal industry, as an impermissible delegation to a nongovernmental entity.25 And in United States v. Butler, the Court ruled that an attempt to convert the Tax and Spending Clause into an unlimited power to regulate for the general welfare violated the Tenth Amendment.26 Because the United States was a government of delegated powers, the Court held that any attempt to transcend those enumerated powers, even during an emergency, was prohibited by the Tenth Amendment. United States v. Butler involved a constitutional challenge to the Agricultural Adjustment Act.27 Ruling that the power to regulate agriculture was not among Congress’s enumerated powers, the Court struck down the Act. Moreover, because regulating agriculture was a power reserved exclusively to the states, the principle 22. Kurt Lash, James Madison’s Celebrated Report of 1800, 74 Geo. Wash. L. Rev. 165, 189 (2006). 23. Kurt T. Lash, The Lost Jurisprudence of the Ninth Amendment, 83 Tex. L. Rev. 597, 684 (2005). 24. 295 U.S. 495, 528 (1935). 25. 298 U.S. 238, 293–94 (1936). 26. 297 U.S. 1, 64–66 (1936). 27. 297 U.S. 1 (1936).

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of dual sovereignty embodied in the Tenth Amendment precluded Congress from interfering in this area.28

The 1937 Revolution This judicial stand against the New Deal’s expansion of federal power, however, did not hold up. In 1937 the Court drastically changed its approach to the expansion of national power. After President Roosevelt introduced his ‘‘Court Packing Plan’’29 following the 1936 election, Justice Owen J. Roberts suddenly changed positions and began voting to sustain laws he had previously opposed.30 This so-called switch in time marked the beginning of the New Deal constitutional revolution.31 In a series of cases, the Court downgraded its liberty of contract protections,32 abandoned the nondelegation doctrine,33 and essentially dismissed the Ninth and Tenth Amendments as enforceable safeguards of federalism. As one scholar has noted, during the constitutional revolution that accompanied the New Deal, the traditional principles of federalism that had endured for a century and a half ‘‘were swept away.’’34 President Roosevelt’s court-packing proposal authorized him to appoint one new Supreme Court Justice for each sitting Justice who had served ten years or more and had not retired within six months after his seventieth birthday. Under this plan, the number of Supreme Court Justices was to be raised to fifteen. How much the Court was influenced by this bill is uncertain, but shortly after its introduction the Court began upholding the type of New Deal legislation that had previously been struck down. Initiating a new era of constitutional interpretation, the Supreme Court endorsed a permanent enlargement in the scope of federal power, largely at the 28. Anuj Desai, Filters and Federalism: Public Library Internet Access, Local Control, and the Federal Spending Power, 7 U. Pa. J. Const. L. 1, 80 (2004). 29. S. Rep. No. 75–711, app. D, at 41 (1937). 30. Compare Morehead v. New York ex rel. Tipaldo, 298 U.S. 587 (1936), with West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937). 31. See Bruce Ackerman, We the People: Transformations (Cambridge: Harvard University Press, 1998), 2:257. 32. United States v. Carolene Products Co., 304 U.S. 144 (1938). 33. United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936). 34. Lash, The Lost Jurisprudence, 688.

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expense of the states.35 In rapid succession, the Farm Mortgage Act of 1935, the National Labor Relations Act, and the Social Security Act of 1935 were all upheld over the course of several months— decisions that served to sanction a permanent enlargement of federal power. As Professor Forrest McDonald notes, because of President Roosevelt’s court-packing plan, ‘‘[i]f the Court were to save itself as a functioning part of constitutional government, it would have to retreat.’’36 By spring 1937, ‘‘it was clear that the Supreme Court had abandoned its earlier limited interpretation of federal power.’’37 In nlrb v. Jones & Laughlin Steel Corp., for instance, the Court reversed its prior position that local commercial activities having no more than an indirect effect on interstate commerce could not be regulated by Congress. Even if certain activities were ‘‘intrastate in character,’’ Congress could still regulate them if such regulations were ‘‘appropriate to protect [interstate] commerce from burdens and obstructions.’’38 The Court also took a dismissive stance toward the states when it upheld the Social Security Act against a claim that the Act infringed on state autonomy in violation of the Tenth Amendment.39 In his opinion sustaining the Act, Justice Benjamin Cardozo even suggested that congressional action was legitimate because the states had failed to adequately address the problems caused by the Great Depression. According to Justice Cardozo, the Act was validated by the fact that the states had shown themselves to be ‘‘unwilling, whether through timidity or for other motives, to do what can be done at home.’’40 After 1937, the Court consistently rejected Ninth and Tenth Amendment arguments that federal legislation infringed on state and local autonomy.41 In United States v. Darby, for instance, the 35. Con. Ed. Co. v. nlrb, 305 U.S. 197 (1938); nlrb v. Fainblatt, 306 U.S. 601 (1939). 36. Forrest McDonald, A Constitutional History, 197. 37. Lash, The Lost Jurisprudence, 689–90. 38. 301 U.S. 1, 30 (1937). 39. Charles C. Steward Machine Co. v. Davis, 301 U.S. 548, 585, 596 (1937) (rejecting the claim that the Act coerced the states; and in doing so Justice Cardozo rejected the argument in Carter Coal that the states’ reserved powers were not the states’ to give away). 40. Id. at 588–89. 41. See Tennessee Electric Power Co. v. Tennessee Valley Authority, 306 U.S. 118,

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Court stated that federal regulation of purely intrastate commerce would be upheld if Congress found that the activity at issue affected interstate commerce, and that the Tenth Amendment did not deprive ‘‘the national government of authority to resort to all means for the exercise of a granted power which are appropriate and plainly adapted to the permitted end.’’42 To justify this departure from pre-1937 case law, the Court claimed to be returning to John Marshall’s vision of federal authority. In Wickard v. Filburn, the Court quoted from Chief Justice Marshall’s opinion in Gibbons that the ‘‘power of Congress over interstate commerce is plenary and complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution.’’43 Thus, in Wickard, the Court held that Congress’s interstate commerce power applied even to a farmer growing wheat to feed his own livestock. Within a year and a half of its decision in United States v. Butler, which represented the ‘‘high-water mark of the Court’s adherence to the principles of dual sovereignty,’’44 the Court had completely abandoned its previous federalism doctrines. Thus, by the end of 1937, the Court had eliminated most of the federalism constraints on Congress’s powers.45 Consequently, as a result of the New Deal, the national government ‘‘came out as the more authoritative partner in the federal-state system.’’46 According to Professor Steven Calabresi, the New Deal ‘‘secured a lasting change in the Supreme Court’s federalism and economic liberty case law.’’ Now, in any conflict with the Tenth Amendment, the Court would simply defer to Congress. In Darby, for instance, the Court treated the Tenth Amendment as having no real constitutional role; it was merely a ‘‘truism’’ about the relationship between national and state governments.47 The implication of this pronouncement, however, is that 119 (1939) (ruling that federal involvement in the local electricity market did not amount to an exercise of regulatory power). 42. United States v. Darby, 312 U.S. 100, 119, 123–24 (1941). 43. 317 U.S. 111, 124 (1942) (adopting economic effects as the guidepost of federal power, regardless of whether the regulated activity is local). 44. Desai, Filters and Federalism, 89. 45. Id., 89–90. 46. Walker, The Rebirth of Federalism, 97. 47. United States v. Darby. 312 U.S. 100, 124–25 (1941) (holding that Congress

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the enumerated powers doctrine carried no judicially enforceable power.48 After 1937, judicial enforcement of federalism provisions became virtually nonexistent. From 1937 until the early 1990s, the Court consistently supported the expansion of federal power. During this time, the Court did not overturn any laws for exceeding the scope of Congress’s commerce power, and the only decision in which the Court held that a law violated the Tenth Amendment was overruled just nine years later.49 A similar constitutional change occurred in the enforcement of the nondelegation doctrine. The judicial shift to accommodating broad congressional delegations can be seen in the first post–New Deal nondelegation case decided by the Court in 1944. Yakus v. United States involved a provision of the Emergency Price Control Act (epca) delegating to the Office of Price Administration (opa) the power to set commodity prices that ‘‘in his judgment will be generally fair and equitable and will effectuate the purposes of the Act.’’50 In accommodating this broad delegation, the Court stated that Congress should not be confined to the ‘‘rigidity’’ of a strictly defined nondelegation doctrine, but should instead be allowed ‘‘the flexibility attainable by the use of less restrictive standards.’’51 Thus, less than a decade after Schechter and Panama Refining were decided, the Court in Yakus had completely shifted to valuing congressional flexibility and freedom over a strict application of the nondelegation doctrine.52 In Lichter v. United States, the Court further expanded the ‘‘flexibility’’ exceptions to the nondelegation doctrine when it announced that ‘‘it is not necessary that Congress supply administrative officials with a specific formula for their guidance in a field where flexibility and the adaptation of the concould ban the transportation of goods manufactured by firms whose employees’ wages and hours did not meet the requirements of the Fair Labor Standards Act). 48. Jay Bybee, The Tenth Amendment Among the Shadows, 23 Harv. J. L. & Pub. Pol’y 551, 558–59 (2000). 49. See National League of Cities v. Usery, 426 U.S. 833 (1976). 50. 321 U.S. 414, 420 (1944). 51. Id. at 425–26. 52. See Mistretta v. United States, 488 U.S. 361, 372 (1989) (stating that ‘‘our jurisprudence has been driven by a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate under broad general directives’’).

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gressional policy to infinitely variable conditions constitute the essence of the program.’’53

The Legacy As a result of all the forces put into play during the New Deal, the American administrative state has grown to a point where it now ‘‘often looks like Hobbes’s Leviathan itself.’’54 Administrative agencies have been called the ‘‘fourth branch’’ of government.55 However, contrary to the idealistic hopes of the New Dealers, agencies have become rigidly bureaucratic and often blatantly partisan entities. Unquestionably, the modern administrative agency is in considerable tension with constitutional principles.56 Professor Gary Lawson argues that a strict reading of the Constitution yields the conclusion that the modern administrative state is flagrantly unconstitutional, and that the only way to preserve the administrative state is to essentially redefine the Constitution, which was exactly what the New Deal Court did.57 According to some observers, the agency role in the lawmaking process has become almost unchecked, largely because current separation of powers doctrines are unsuited to the realities of modern administrative governance.58 Indeed, modern developments have caused separation of powers norms to be ‘‘increasingly fragile and . . . violated as they never have been before.’’59 Out of perceived necessity, however, the Court has acquiesced in the constitutionality of the administrative state.60 53. 334 U.S. 742, 785 (1948). 54. Jamison Colburn, Democratic Experimentalism: A Separation of Powers for Our Time, 37 Suffolk U. L. Rev. 287, 287 (2004). 55. Jonathan Zasloff, Taking Politics Seriously: A Theory of California’s Separation of Powers, 51 UCLA L. Rev. 1079, 1139 (2004). 56. Sunstein, Constitutionalism After the New Deal, 497–98. 57. Gary Lawson, The Rise and Rise of the Administrative State, 107 Harv. L. Rev. 1231 (1994). 58. Colburn, Democratic Experimentalism, 293. 59. Saikrishna Prakash, Branches Behaving Badly, 12 Cornell J. L. & Pub. Pol’y 543, 543 (2003) (arguing that the ‘‘wobbly state’’ of separations of powers ‘‘is bad for the nation’’). 60. M. Elizabeth Magill, The Revolution That Wasn’t, 99 Nw. U. L. Rev. 47, 68 (2004).

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Since Schechter, for instance, the Court has not invalidated any federal legislation on the grounds that it violates the nondelegation doctrine. In every case in which the issue has been raised, the Court has refused to enforce the doctrine in a way that actually prohibits a delegation of legislative authority to the executive branch.61 Despite this judicial failure to follow Panama Refining and Schechter Poultry, there have been sporadic judicial opinions calling for a revival of the nondelegation doctrine. In Mistretta, dissenting from the majority’s approval of an open-ended grant of authority to the United States Sentencing Commission, Justice Antonin Scalia argued that the delegation at issue amounted to a pure conveyance of legislative power in violation of the nondelegation doctrine.62 But perhaps the most significant judicial sign of life in the nondelegation doctrine came from the D.C. Circuit in 1999. In American Trucking Ass’ns v. EPA, the D.C. Circuit became the first federal court in more than six decades to strike down a statute as violating the intelligible principle test.63 Although the court recognized that previous Supreme Court cases have not employed a ‘‘strong form of the nondelegation doctrine,’’ it argued that the unlimited scope of the delegation at issue, along with its potentially far-reaching economic effects, required a departure from the practice of sustaining virtually any delegation, no matter how vague.64 However, the Supreme Court concluded otherwise, holding that the Clean Air Act did supply a sufficient ‘‘intelligible principle’’ to guide the agency and hence did not unconstitutionally transfer ‘‘legislative powers’’ to the Environmental Protection Agency (epa).65 This holding followed a long line of case law in which the most broad and vague terms were seen as defining a sufficiently intelligible principle. In Industrial Union Department v. American Petroleum Institute, for instance, the Court found the language ‘‘to the extent feasible’’ to 61. Michael Herz, The Rehnquist Court and Administrative Law, 99 Nw. U. L. Rev. 297, 357 (2004). 62. Mistretta, 488 U.S. at 413, 416 (Scalia, J., dissenting). 63. 175 F. 3d 1027 (D.C. Cir. 1999), modified, 195 F. 3d 4 (D.C. Cir. 1999), rev’d sub nom, Whitman v. American Trucking Ass’ns, 531 U.S. 457 (2001). 64. Id. at 1037–38. 65. Whitman v. American Trucking Ass’ns, 531 U.S. 457, 473–76 (2001).

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constitute an intelligible principle.66 The statutory language of ‘‘as public convenience, interest, or necessity requires’’ was approved in United States v. Southwestern Cable Co.67 ‘‘Just and reasonable rates’’ was found sufficiently guiding in Fed. Power Comm’n v. Hope Natural Gas Co.68 Even ‘‘compelling public interest’’ was held to be a sufficiently intelligible principle in Milk Indus. v. Glickman.69 Despite this pattern of deference to congressional delegations, however, Justice Clarence Thomas in his Whitman concurrence raised concerns over the state of the nondelegation doctrine and suggested that in the future he ‘‘would be willing to address the question whether our delegation jurisprudence has strayed too far from our Founders’ understanding of separation of powers.’’70 Thus, since the New Deal, the Supreme Court has become much more deferential, repeatedly upholding broad delegations of policymaking discretion to administrative agencies under vague and sweeping congressional language.71 As a result of the New Deal constitutional revolution, the scope of federal power was essentially uncoupled from any consideration of the retained rights of the states.72 Coinciding with the New Deal shift in the relative powers of the state and national governments was a shift in attitude about the values of federalism. As Professor Sunstein notes, competition among states was seen as producing paralysis rather than experimentation. But even if experimentation did occur, what was desired was a uniform national policy. The idea of vertical checks and balances among competing local and federal spheres seemed ‘‘inconsistent with the need for active governmental intervention to counteract the Depression.’’73 Thus, given the perceived inadequacies of the states, a dramatic expansion in federal power seemed 66. 448 U.S. 607, 611 (1980). 67. 392 U.S. 157, 178 (1968). 68. 320 U.S. 591, 600 (1944). 69. 132 F. 3d 1467, 1475 (1998). 70. Whitman, 531 U.S. at 487. 71. John Roberts, Are Congressional Committees Constitutional? 52 Case W. Res. L. Rev. 489, 507 (2001). 72. Lash, The Lost Jurisprudence, 696. 73. Sunstein, Constitutionalism After the New Deal, 504–5.

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both necessary and natural. New Deal reformers ‘‘willingly abandoned the belief in self-determination through local government and looked instead to national institutions, and in particular to regulatory agencies and to the presidency, to fulfill democratic aspirations.’’74 The defenders of federalism, such as the pre-1937 Court, were criticized as hostile reactionaries to vital and innovative federal programs. Certain side effects, however, accompanied the dismissal of federalism as an enforceable constitutional principle. Aside from the subordination of state and local governments in the constitutional system—a goal that was specifically pursued by the New Deal—the abandonment of federalism also severely weakened the Constitution’s structural protection of liberty. Further weakening these structural protections was the drastic shift away from enforcement of the separation of powers doctrine. In the aftermath of the New Deal constitutional revolution, the only remaining legal limit on federal power was the Bill of Rights.75 During the New Deal period, the goal of protecting liberty through the maintenance of limited and divided government yielded to the desire to ensure economic security through a powerful and activist central government. Although the framers had sought political freedom by setting up structural divisions within the government to prevent the concentration of government power,76 the New Dealers believed they could preserve liberty solely through the judiciary’s enforcement of specified individual freedoms. Later, during the Warren era, the Court turned almost completely away from any structural analyses of individual rights, focusing strictly on judicial enforcement of particular substantive rights.77 This abandonment of a structural approach to liberty, however, ignored the fact that only the structural provisions of the 74. Id. at 504. 75. Richard Epstein, The Federalism Decisions of Justices Rehnquist and O’Connor, 58 Stanford Law Review 1793, 1796 (2006). 76. M. J. C. Vila, Constitutionalism and the Separation of Powers (New York: Oxford University Press, 1969), 14. 77. See Casey Westover, Structural Interpretation and the New Federalism: Finding the Proper Balance Between State Sovereignty and Federal Supremacy, 88 Marq. L. Rev. 693, 699 (2005).

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Constitution can provide for a balancing of two fundamental but often seemingly contradictory principles—that constitutional doctrines must be flexible enough to apply across time to unforeseen circumstances, and that future generations must nonetheless adhere to the unchanging text of the Constitution.

2 at the heart of the revolution: the constitution’s structural provisions

Federalism and Separation of Powers The most important governing structures created by the Constitution are federalism and separation of powers.1 Indeed, the republican system of government created by the Constitution rests upon the twin foundations of federalism and separation of powers as its foundation. Referred to as structural provisions of the Constitution, both federalism and separation of powers encompass an array of clauses and articles that together create an organizational scheme of government. Federalism refers to the distribution of power between two different levels of government that represent the same constituency. Under the dual governmental structure established by the Constitution, power is balanced between the states and the national government.2 While federalism designates some activities as inherently local and outside the control of the federal government, it envisions other activities as national and hence outside the realm of state regulation. Although its purpose was to create a strong national government, the Constitution also sought to preserve the independent integrity and lawmaking authority of the states.3 This bifurcated system of power was codified in the Tenth Amendment, which divides sovereign power between that delegated to the federal 1. Charles Black, Structure and Relationship in Constitutional Law (Baton Rouge: Louisiana State University Press, 1969), 10–11. 2. See Younger v. Harris, 401 U.S. 37, 44 (1971) (suggesting that the constitutional scheme envisions a federal structure in which states are equal partners with the national government). 3. Akhil Reed Amar, Of Sovereignty and Federalism, 96 Yale L. J. 1425, 1466 (1987).

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government and that reserved to the states.4 As an additional safeguard of federalism and limited government, the Ninth Amendment was envisioned by the framers as creating a rule of construction limiting the interpretation of federal powers.5 Thus, while the Tenth Amendment reserves all nondelegated power to the states, thereby prohibiting the national government from exercising undelegated powers that infringe on the lawmaking autonomy of the states, the Ninth Amendment commands that those federal powers actually enumerated in the Constitution be narrowly interpreted. According to the framers’ view of federalism, the national government would exert supreme authority only within the limited scope of its enumerated powers; the states meanwhile would exercise the remainder of sovereign authority, subject to the natural restraint of interstate competition from other states.6 The framers believed that by protecting the pre-existing structure of state governments the Constitution could safely grant power to the national government, since the former would independently monitor the latter’s exercise of that power.7 Similar to the way in which the colonial governments had mobilized opposition to oppressive acts of Parliament, the state governments would serve as vigilant watchdogs against abuses committed by the federal government.8 In creating a system of dual sovereignty between the state and federal governments, the framers ‘‘split the atom of sovereignty’’ by designating two different political entities (federal and state), ‘‘each protected from incursion by the other.’’9 This federalism scheme creates a structure in which a wide array of diverse communities can co-exist under a single national government. For instance, one of the benefits of federalism is that people of different views can 4. Id. at 1492. 5. James Madison, Speech in Congress Opposing the National Bank (February 2, 1791), in James Madison, Writings, 480, 489 (Jack N. Rakove, ed., 1999). 6. H. Pryor, Madison’s Double Security: In Defense of Federalism, the Separation of Powers, and the Rehnquist Court, 53 Ala. L. Rev. 1167, 1175 (2002). 7. See G. Wills, Explaining America: The Federalist (New York: Penguin Books, 1981), 108–11. 8. See, e.g., The Federalist No. 26, at 172 (A. Hamilton). 9. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 838 (1995) (Kennedy, J., concurring).

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gather in different states with different policies and priorities. Hence, federalism supports and accommodates the wide diversity of American society. As Professor Steven Calabresi explains, federalism has served as a vital ingredient of America’s constitutional democracy: It prevents religious warfare, it prevents racial warfare. It is part of the reason why democratic majoritarianism in the United States has not produced violence or secession for 130 years, unlike the situations, for example, in England, France, Germany, Russia, Czechoslovakia, Yugoslavia, Cyprus, or Spain. There is nothing in the U.S. Constitution that is more important or that has done more to promote peace, prosperity, and freedom than the federal structure of that great document.10 Federalism reflects a structural aspect of the constitutional scheme because it deals not with a specific power or right enjoyed by a specific actor, but with the overall organization of government and the relationship between federal and state governmental units. It reflects those limitations on federal power that are both explicit in the text of the Constitution and implicit in the structural design of the Constitution. In this respect, federalism is similar to the concept of separation of powers. Both reflect constitutional structures and governmental relationships. Both focus on allocating power to various government entities, and both act as a check on the power of the national government. Just as there is no specific ‘‘federalism’’ provision in the Constitution, there is also no ‘‘separation of powers’’ clause. As the Court stated in Bowsher v. Synar, a general principle of separation of powers can be constructed from various provisions in the Constitution.11 Instead of containing a single clause requiring the separation of the three branches of government, the Constitution simply outlines the powers of each branch and then creates a complex system of checks and balances on the respective branches. Thus, separation of powers is more an infor10. Steven Calabresi, A Government of Limited and Enumerated Powers, 94 Mich. L. Rev. 752, 770 (1995). 11. 478 U.S. 714, 723 (1986).

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mal descriptor of how the Constitution works, in terms of checks and balances, than a label of precise constitutional provisions. Whereas separation of powers addresses the horizontal structure or division of power among the legislative, executive, and judicial branches of the federal government, federalism focuses on the vertical division between the national and state levels. According to James Madison, ‘‘the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments.’’12 Under this double layer of protection, the different governmental units will control one another, at the same time that each will be controlled by itself.13 Some scholars see federalism and separation of powers as two aspects of a single, interconnected system.14 The Supremacy Clause reflects one way in which federalism and separation of powers are interconnected. For instance, by constructing obstacles in the national lawmaking process, the separation of powers requirements of bicameralism and presentment in Article I, Section 7 restrain federal lawmaking and hence federal intrusion into state lawmaking. As evidence of this restraint, each year only a small fraction of the bills introduced in the Congress actually become law. Thus, the ‘‘imposition of cumbersome federal lawmaking procedures suggests that the Constitution reserves substantive lawmaking power to the states and the people both by limiting the powers assigned to the federal government and by rendering that government frequently incapable of exercising them.’’15 But these procedures, according to Professor Bradford Clark, even though often falling under the category of separation of powers between the executive and legislative branches, also help protect federalism by restricting the instances in which federal law supersedes state law and establishing clear constraints on the federal government’s ability to exercise power. The notion of separation of powers envisions a federal govern12. The Federalist No. 51, 291 (J. Madison) (Clinton Rossiter, ed., 1999). 13. Id. 14. Bruce Peabody and John D. Nugent, Toward a Unifying Theory of the Separation of Powers, 53 Am. U. L. Rev. 1, 19 (2003). 15. See Bradford R. Clark, Separation of Powers as a Safeguard of Federalism, 79 Tex. L. Rev. 1321, 1340 (2001).

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ment made up of three separate branches, each given different powers and responsible for different functions. Article I of the Constitution places all legislative powers in Congress; Article II vests executive power in the presidency; and Article III places the judicial power in the federal courts. Under this structure, each branch is apportioned certain powers that enable it to act as a check on the other branches: ‘‘To the legislative department has been committed the duty of making laws; to the executive the duty of executing them; and to the judiciary the duty of interpreting and applying them.’’16 By parceling out governmental power among the three branches, the framers sought to make ambition ‘‘counteract ambition,’’ thereby restricting the overall power of the state.17 In this way, the system of separated powers is ‘‘a self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of the other.’’18 The Supreme Court has repeatedly recognized the importance of the separation of powers doctrine to the American constitutional system.19 Separation of powers is ‘‘part of the essence of American government, as fundamental as the vote or representative government.’’20 It requires not only that the three different functions of government be separated—executive, legislative, and judicial—but that they be allocated among the three different branches, each of which is prohibited from encroaching upon the functions of the others. More than simply preventing abuses of power, a separation of powers doctrine also makes the various branches function more efficiently by better defining their functions. A separation of powers helps government to be ‘‘deliberative, representative, and accountable’’ by providing for not only ‘‘the energy and secrecy usually attributed to executive leadership, but also the deliberation that is 16. Massachusetts v. Mellon, 262 U.S. 447, 488 (1923). 17. The Federalist No. 51, 356 (James Madison) (Benjamin Fletcher Wright, ed., 2002). 18. Buckley v. Valeo, 424 U.S. 1, 122 (1976). Without such a self-executing system, the framers feared the onset of the kind of tyranny against which they had revolted. 19. National Mutual Insurance Co. v. Tidewater Transfer Co., 337 U.S. 582, 590 (1949) (separation of powers ‘‘is fundamental in our system’’). 20. Carl T. Bogus, The Battle for Separation of Powers in Rhode Island, 56 Admin. L. Rev. 77, 78 (2004).

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the frequent byproduct of legislative activity, and the judiciary’s authoritative legal judgment and institutional inclination to articulate rights.’’21 It helps slow down the lawmaking process so that it can avoid unreflective judgments and be responsive to all the various constituencies in a diverse democracy. Another benefit of separation of powers is that it increases the number of points at which irrational or oppressive governmental action can be stopped. A system of separated powers makes it difficult for government to act, unless there is widespread agreement that it should do so.22 Such a system, by providing each branch with the means and the will to resist the others, promotes stability by insulating the status quo from tumultuous and unpredictable change.23 The framers foresaw that a separation of powers structure, by placing impediments in the path of the political process, would help to restrain the excesses of lawmaking. This constitutional structure, according to the Court, ‘‘imposes burdens on governmental processes that often seem clumsy, inefficient, even unworkable.’’24 Although this structural bias in favor of the status quo would naturally defeat ‘‘a few good laws,’’ it would also prevent ‘‘a number of bad ones.’’25 Furthermore, in addition to the classical notion of separation of powers, the framers created a uniquely American theory of checks and balances, with each branch sufficiently independent so as to keep the others in check.26 According to Thomas Jefferson, ‘‘powers should be so divided and balanced as that no one could transcend their legal limits, without being checked and restrained by the others.’’27 21. Harvey C. Mansfield, ‘‘Separation of Powers,’’ in Bradford Wilson and Peter W. Schramm, eds., Separation of Powers and Good Government (Lanham, Md.: Rowman & Littlefield, 1994), 10, 24. Cass R. Sunstein, Constitutionalism After the New Deal, 101 Harv. L. Rev. 421, 434 (1987). 23. Id. at 436. 24. ins v. Chadha, 462 U.S. 919, 959 (1983). 25. The Federalist No. 73, at 444 (Alexander Hamilton) (Clinton Rossiter, ed., 1961) 26. M. J. C. Vile, Constitutionalism and the Separation of Powers (Oxford: Clarendon Press, 1969), 151. 27. Id., 152.

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Structural Provisions and the Protection of Liberty The primary constitutional purpose served by the structural provisions of federalism and separation of powers is not the achievement of a certain government organization or efficiency, but the protection of liberty. To the framers and ratifiers of the Constitution, individual liberty was equated with limited federal power.28 Expounding on the theory of limited government, James Madison wrote: ‘‘The powers delegated . . . to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. . . . The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.’’29 With respect to federalism, for instance, the division of authority between state and federal governments, with the latter enjoying only limited, enumerated powers, was not created for the benefit of the states but for the benefit of the American people.30 As Madison wrote, both separation of powers and federalism enable the people ‘‘to conquer government power by dividing it.’’31 Through this division of government, a federalist system increases the difficulty for any one power to control all layers of government and oppress the people. Together, federalism and separation of powers work to create a governmental structure that protects liberty by checking the abuses of power that can infringe on that liberty. Together, they combine to produce a constitutional system with two different levels of checks and balances: one existing between the national and state governments, and the other between the three branches of the fed28. Bradford Clark, Unitary Judicial Review, 72 Geo. Wash. L. Rev. 319, 334 (2003). 29. The Federalist No. 45 (James Madison) (Clinton Rossiter, ed., 1961), 292–93. 30. New York v. United States, 505 U.S. 144, 181–82 (1992) (stating that the Constitution ‘‘does not protect the sovereignty of States for the benefit of the States or state governments as abstract political entities,’’ but rather for the protection of the individual). 31. Akhil Reed Amar, Of Sovereignty and Federalism, 96 Yale L. J. 1425, 1450 (1987).

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eral government. This system reflects what Madison called the Constitution’s ‘‘double security’’ for individual rights.32 To the framers, the main justification of federalism was the protection of liberty against federal abuses.33 By diluting the power of the centralized national government, federalism restricts the opportunities for the abuse of that power. As the Court explained in New York v. United States, a ‘‘healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.’’34 As designed by the framers, federalism promotes individual liberty by allowing citizens to move to a state that possesses, in that citizen’s view, a more hospitable legal environment. The ability of citizens to move from one state to another, to ‘‘vote with their feet,’’ serves to ‘‘discipline government in the same way in which consumer choice disciplines producers.’’35 Furthermore, by maintaining a separate governmental watchdog layer in the states, federalism provides a built-in mechanism to combat any overreaching by the national government.36 According to the framers, the states could facilitate and encourage public uprisings against abuses of power committed by the national government. Alexander Hamilton argued that individuals who felt their rights violated by the central government could use the state governments as an ‘‘instrument of redress.’’37 Indeed, the prevailing expectation during the constitutional period was that ‘‘when one’s rivals or enemies were in control of the central government, one was prone to savor states’ rights.’’38 In The Federalist, Hamilton makes a clear distinction between a free government and a republican government.39 Whereas free 32. The Federalist No. 51, at 323 (James Madison) (Clinton Rossiter, ed., 1961). 33. See The Federalist No. 46 (James Madison) (Clinton Rossiter, ed., 1961) (arguing that the states ‘‘will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority’’). 34. 505 U.S. at 181. 35. Michael S. Greve, Real Federalism: Why It Matters, How It Could Happen (Washington, D.C.: American Enterprise Institute, 1999), 3. 36. See The Federalist No. 51, at 322–23 (J. Madison) (C. Rossiter, ed., 1961). 37. The Federalist No. 28, at 179 (A. Hamilton) (Jacob E. Cooke, ed., 1961). 38. Forrest McDonald, States’ Rights and the Union (Lawrence: University Press of Kansas, 2000), 48. 39. See, e.g., The Federalist Nos. 9, 51 (A. Hamilton) (Jacob E. Cooke, ed.,

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government focuses exclusively on securing specified individual rights, republican government uses political freedom as a means of securing individual freedom.40 In choosing the latter, the framers sought to design a governmental structure that would best preserve liberty.41 To the framers, ‘‘the primary safeguards against government tyranny were architectural.’’42 Infringements on liberty caused by a potentially tyrannical national government could best be prevented by state governments standing ‘‘ready to rally their citizens and lead them in opposition.’’43 But this protection is possible only if courts carefully enforce a constitutional structure that gives the states sufficient influence and independence. Like federalism, separation of powers was an essential structural component of a republican government committed to the protection of liberty.44 And like federalism, separation of powers safeguards individual liberty by diffusing government power. As recognized by the Court in United States v. Brown, separation of powers is ‘‘a bulwark against tyranny.’’45 The separation of powers doctrine reflects the framers’ fear of centralized power.46 As James Madison wrote, ‘‘the accumulation of all powers, legislative, executive, and judiciary, in the same hands, 1961) (referencing the distinction between free governments and republican governments). 40. Bradford P. Wilson, ‘‘Separation of Powers and Judicial Review,’’ in Separation of Powers and Good Government, ed. Bradford P. Wilson and Peter W. Schramm (Lanham, Md.: Rowman & Littlefield, 1994), 68. 41. David Walker, The Rebirth of Federalism (Chatham, N.J.: Chatham House, 1995), 56. A federalist structure would help protect ‘‘the rights of every class of citizens.’’ Id., 57. 42. Daryl Levinson, Empire-Building Government in Constitutional Law, 118 Harv. L. Rev. 915, 919 (2005). 43. Id. at 938. 44. See Lawrence G. Sager, Justice in Plainclothes: A Theory of American Constitutional Practice, (New Haven: Yale University Press, 2004) (stating that ‘‘our constitutional text and jurisprudence respond in part to concerns of political justice by architecting and protecting structural features of government—the horizontal separation of powers and the vertical distribution of authority within a federal structure’’), 154–55. 45. 381 U.S. 437, 442–43 (1965). 46. See Larry Kramer, Putting the Politics Back into the Political Safeguards of Federalism, 100 Colum. L. Rev. 215, 268 (2000) (arguing that the structural provisions for separation of powers in the Constitution were seen by the framers as a way to ensure and preserve individual liberty by checking the power of government).

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whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.’’47 One of the most pervasive concerns surrounding the adoption of the Constitution was that the federal judiciary would expand its own powers beyond the confines of limited government, thus subverting the separation of powers.48 The framers feared judicial encroachment into the legislative sphere more than any other breach of separation of powers. Alexander Hamilton argued that ‘‘there is no liberty if the power of judging be not separated from the legislative and executive powers.’’49 Believing judges to be essentially aristocratic and too far removed from the people, James Madison wrote: ‘‘Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor.’’50 In their notions of separation of powers, the framers were influenced by the Protestant Reformation and its warnings regarding human nature’s vulnerability to the corruptions of excessive power. As Justice Hugo L. Black later explained, America’s colonial history ‘‘provided ample reason for people to be afraid to vest too much power in the national government.’’51 Early Americans were also greatly influenced by the views of Montesquieu, the French lawyer and politician, who wrote that ‘‘when the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty.’’52 And throughout its deliberations, the Constitutional Convention remained steadfast in its 47. The Federalist No. 47 (James Madison). 48. Missouri v. Jenkins, 515 U.S. 70, 126 (1995) (Thomas, J., concurring) (discussing concerns that were raised during the drafting and ratification of the Constitution regarding the federal judiciary’s power). 49. Alexander Hamilton, The Federalist No. 78, 394 (Buccaneer Books, 1992). 50. The Federalist No. 47, 303 (James Madison) (Clinton Rossiter, ed., 1961). 51. Hugo Black, The Bill of Rights, 35 N.Y.U. L. Rev. 865, 869 (1960). 52. Forrest McDonald, Novos Ordo Seclorum: The Intellectual Origins of the Constitution (Lawrence: University Press of Kansas, 1985) (stating that ‘‘American republican ideologies could recite the central points of Montesquieu’s doctrine as if it had been a catechism’’), 81.

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adherence to Montesquieu’s prescription that separation of powers was a vital element to freedom.53

The Constitutional Compromise For a century and a half, the framers’ commitment to federalism was preserved in constitutional doctrine. But during the New Deal period, the notion of protecting liberty through the maintenance of limited and divided government gave way to the desire to ensure economic security through a powerful and activist central government. The framers’ view of political freedom requiring a limited government was largely abandoned by the New Deal reformers, who called upon an activist government to combat the problems of the Great Depression. Although the framers had sought political freedom by setting up a structural scheme that would prevent the concentration of government power, the New Dealers believed they could expand federal power and still preserve liberty strictly through the judiciary’s enforcement of specified individual freedoms. But to the framers, federalism and separation of powers were far more important than the Bill of Rights in protecting liberty.54 As a result of the judicial acquiescence to the New Deal, a constitutional compromise was reached. In order to sustain the various kinds of sweeping New Deal legislation, judicial review of federalism and separation of powers issues more or less ended. Congress was given great deference by the courts to enact legislation that would have previously been judged a violation of these structural provisions of the Constitution. However, this judicial deference to Congress and the abandonment of federalism and separation of powers, besides allowing the New Deal legislation to pass, also undercut one of the most fundamental foundations of individual liberty. To compensate for this erasure of constitutional protection, 53. Thornton Anderson, Creating the Constitution: The Convention of 1787 and the First Congress (University Park: The Pennsylvania State University Press, 1993), 50–51. 54. Clarke D. Forsythe and Stephen B. Presser, Restoring Self-Government on Abortion: A Federalism Amendment, 10 Tex. Rev. L. & Pol. 301, 324 (2006).

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the Court made a compromise: although it would retreat from reviewing structural issues, it would intensify its review of individualrights issues. Larry Kramer calls this the New Deal ‘‘settlement,’’ in which the Court decided to enforce rigorously a selective set of substantive individual rights while deferring to Congress in structural matters, such as federalism and separation of powers.55 But this indifference to structural matters flies in the face of the framers’ intent that only a limited government of enumerated rights would allow the people to retain their liberty. According to the framers, courts can hardly protect the full range of individual liberty if they do not enforce the structural provisions of the Constitution with as much vigor as they do the substantive-rights provisions. This ‘‘settlement,’’ or retreat from involvement in structural matters, strongly suggested that the Court had lost or given away a significant degree of its powers. Indeed, after 1937 the Court did not declare any significant federal action unconstitutional for the remainder of the Roosevelt presidency.56 As a result of the New Deal constitutional revolution, it appeared as if the power of the other branches had been increased, at the expense of the Court. However, as the evolution of the law governing administrative agencies reveals, such has not been the case.

55. Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (New York: Oxford University Press, 2004), 219–20. 56. Forrest McDonald, A Constitutional History of the United States (Malabar, Fla.: Robert Krieger, 1986), 205.

3 how the administrative state has boosted judicial power

Gaining Power Through the Administrative State Over the past several decades, a steady but subtle shift has been occurring with respect to the separation of powers. This shift of power from Congress to the courts has not occurred through any announced doctrinal changes, but through the indirect effects of the transfers of power from Congress to administrative agencies. By delegating more power to the administrative state, over which the judiciary exercises a greater supervisory role, Congress has allowed the courts to effectively acquire a larger role in the policymaking function normally reserved to the legislative arena. This shift of power to the judiciary has not been chronicled by most scholars and Court observers. They in fact see just the opposite: that the Court has done nothing in recent decades to change the relative balance of powers. Indeed, the perceived failure of the Court to embark on an overhaul of its separation of powers doctrine has prompted much criticism from legal scholars. There is widespread agreement among constitutional scholars that ‘‘the Supreme Court’s treatment of the constitutional separation of powers is an incoherent muddle.’’1 But much of this criticism focuses only on the Court’s overt separation of powers decisions. Examining the holdings and reasonings of these decisions, observers conclude that separation of powers is in a directionless drift. However, if one steps behind those specific decisions and examines both the practical and legal effects of a wider array of cases, one can discern a definite trend in this area. 1. Rebecca Brown, Separated Powers and Ordered Liberty, 139 U. Pa. L. Rev. 1513, 1517 (1991).

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Even though the Court has not announced any dramatic departures in its separation of powers doctrine, it has nonetheless altered the comparative status of the branches through its decisions regarding an intermediary—the administrative agency. Whereas many scholars argue that the added authority given to administrative agencies has resulted in greater power for the executive branch, the argument presented here is that the increased power of agencies has brought about increased powers for the federal judiciary—an increase which has come largely at the expense of Congress. The drift of power has traveled from Congress to the agencies and then to the courts, whose authority has increased because of the ways they can review the actions of administrative agencies. This thesis contradicts the prevailing theory, which holds that power has flowed ‘‘away from the Court to Congress, and from Congress to the executive branch.’’2 Perhaps the main reason for the widespread conclusion that the Court has not effected any changes in separation of powers is that the Court has failed to revive or even enforce the nondelegation doctrine. There was much expectation that the Rehnquist Court would finally resuscitate this doctrine, which has not been enforced since 1935. But despite several opportunities, the Court has failed to do so, thus giving rise to the conclusion that nothing has happened with respect to separation of powers.

The Nondelegation Doctrine’s Accommodation of the Administrative State The Constitution vests all legislative power in Congress. Article I, Section 7, provides that legislation must pass both houses of Congress and then be presented for the President’s approval or veto. Though it may be somewhat cumbersome, this process restrains factional passions and promotes deliberation in the legislative process.3 It also helps filter out bad laws by raising the barriers to the passage of any law.4 2. Forrest McDonald, A Constitutional History of the United States (Malabar, Fla.: Robert Krieger, 1986), 201. 3. See ins v. Chadha, 462 U.S. 919, 951 (1983). 4. Bradford Clark, Separation of Powers as a Safeguard of Federalism, 79 Tex. L. Rev. 1321, 1340 (2001).

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Maintaining a proper separation of powers requires that the judiciary ensure that legislative functions remain the sole prerogative of Congress. To do this, the Court employs the nondelegation doctrine, which holds that Congress may not delegate its lawmaking powers to the executive branch. Theoretically, the nondelegation doctrine seeks to prevent lawmaking from occurring outside the democratic process of bicameralism and presentment.5 The doctrine allows Congress to delegate legislative authority to an administrative agency only if in its delegating statute Congress articulates an ‘‘intelligible principle’’ that will guide the agency in ‘‘filling in the details.’’6 However, under the current nondelegation doctrine, ‘‘virtually anything counts as an intelligible principle.’’7 The Court’s hesitancy to overrule congressional delegations, no matter how broad, stems from the conclusion that a robust nondelegation doctrine is almost completely incompatible with the administrative state and would make effective governance impossible in a vast, complex, and ever-changing society.8 But in return, the modern administrative state requires a substantial relaxation of traditional separation of powers rules—for instance, the nondelegation doctrine and the rule against combining all three governmental functions within one agency.9 Since Congress has so much self-interest in making broad delegations of power to administrative agencies, it is up to the courts to enforce the nondelegation doctrine. Indeed, members of Congress often want to escape responsibility for making hard choices and prefer to delegate those choices to administrative agencies.10 Consequently, in an attempt to claim credit for addressing a problem and yet to escape blame for any adverse effects caused by the resolution of that problem, Congress has a strong incentive to enact vague laws leaving the crucial details to some other entity. 5. John Manning, Nonlegislative Rules, 72 Geo. Wash. L. Rev. 893, 899–900 (2004). 6. J. W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928). 7. See Mistretta v. United States, 488 U.S. 361, 373 (1989). 8. Panama Refining Co. v. Ryan, 293 U.S. 388, 421 (1935). 9. Gary Lawson, The Rise and Rise of the Administrative State, 107 Harv. L. Rev. 1231, 1243 (1994). 10. Ronald Krotoszynski, Jr., Reconsidering the Nondelegation Doctrine: Universal Service, the Power to Tax, and the Ratification Doctrine, 80 Ind. L. J. 239, 243 (2005).

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By allowing Congress to broadly delegate decisionmaking powers to administrative agencies, the Court has facilitated their growth.11 In Mistretta v. United States, the Court’s decision to uphold the constitutionality of the sentencing guidelines promulgated by the U.S. Sentencing Commission could well have been motivated by the practical recognition that the incredibly lenient version of the nondelegation doctrine has become central to the functioning of the administrative state.12 As the Court stated: ‘‘Our jurisprudence has been driven by a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives.’’ This functional approach to separation of powers in general and the nondelegation doctrine in particular, as manifested in the willingness to uphold any and all delegations, also seems to reflect a judicial reluctance to clearly delineate the three different governmental functions of lawmaking, execution, and adjudication, which are often commingled within the workings of administrative agencies.13 But then, the modern administrative state does not coincide neatly with the constitutional principle of separation of powers. Functionalists, or those who seek to accommodate the administrative state within a somewhat contradictory constitutional text, argue that the complexities of the modern administrative state require a more flexible approach to separation of powers. To functionalists, strict enforcement of separation of powers principles would destroy the modern state, the effectiveness of which depends on a combination of powers. Indeed, the functionalist approach to separation of powers was established as an attempt to sustain and support the workings of administrative agencies. The whole point of functionalism is to supply a constitutional rationale for the administrative state—to build a theory that supports the conclusion that the administrative state is constitutional.14 11. Sandra B. Zellmer, The Devil, the Details, and the Dawn of the 21st Century Administrative State, 32 Ariz. St. L. J. 941, 950 (2000). 12. 488 U.S. 361 (1989). 13. Bradford Clark, Separation of Powers as a Safeguard of Federalism, 79 Tex. L. Rev. 1321, 1431 (2001). 14. Gary Lawson, Prolegomenon to Any Future Administrative Law Course: Sepa-

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The Judicial Response to the Growth of the Administrative State The common conclusion is that, owing to the inevitability of the administrative state, the Court has retreated from any consistent enforcement of separation of powers doctrines. Indeed, not a single congressional statute was invalidated on formalist separation of powers grounds between 1936 and 1976.15 Those who favor a more active judicial enforcement of separation of powers point to the nondelegation doctrine as evidence of the Court’s retreat from this area of constitutional law. However, the status of the nondelegation doctrine is but one part of the picture. The complete view of the separation of powers landscape is much more complex, and it reveals that the judiciary is anything but a passive observer. In general, the Court has faced two types of separation of powers disputes. One type involves the branches directly, where the President or Congress attempts to acquire power through the shortcircuiting of some constitutional mandate or process. With these types of disputes, the Court has been strict and somewhat formalistic in its separation of powers supervision. The second type involves the administrative agencies. And here, there are two stages of judicial involvement. The initial stage—and the one most often focused on by legal scholars—is the point at which the agency first acquires power; this is where the nondelegation doctrine comes into play. But there is also a second stage—a stage that is not often considered in terms of separation of powers analysis. This stage involves the way the courts interact with or supervise the agencies once they have acquired and exercised their delegated power. This stage is where the courts have most affected the balance of power among the branches. This is where the courts have used the agencies as intermediaries in the transfer of power from the legislative to the judicial branches; by increasing the power of the agencies, the courts have in turn increased their own power. Many scholars argue that the administrative state has shifted power from a congressional government to an executive-dominated government, and that if there has been any beneficiary of ration of Powers and the Transcendental Deduction, 49 St. Louis U. L. J. 885, 889 (2005). 15. Buckley v. Valeo, 424 U.S. 1 (1976).

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Congress’s massive giveaway of legislative authority it has been the President.16 Indeed, as one scholar has noted, the ‘‘actual distribution of powers in our system looks little like the one the Framers must have contemplated.’’17 But whereas Congress has given up its power voluntarily and overtly to the administrative state, the courts have acquired their power subtly and perhaps unintentionally from the administrative state.

Using the Agencies to Expand Judicial Power Challenges to the validity of agency decisions have mushroomed over the past thirty years, especially since much of the domestic legislation passed during this time has made it easier for disgruntled groups to litigate agency actions.18 Courts not only review the agency’s choice regarding which method of rulemaking to use, but also enforce different procedural requirements for the different types of methods.19 Consequently, federal courts have become intimately involved in formulating agency rules and dictating how they should apply to various kinds of agency actions spanning the areas of education, health, the environment, and consumer safety.20 Much of this involvement comes from the courts’ demands regarding their own judicial review of agency actions, and in so doing the courts impose requirements that go beyond those placed by congressional statute. In this way, a judicial desire to conduct a particular kind of review can shape an agency’s decisions even more than that agency’s empowering statute. To facilitate a ‘‘meaningful’’ or ‘‘effective’’ judicial review, for instance, courts have gone beyond the statutory mandates of the 16. Martin Flaherty, The Most Dangerous Branch, 105 Yale L. J. 1725, 1817–21 (1996). 17. James Gardner, Democracy Without a Net? 79 St. John’s L. Rev. 293, 306 (2005) (stating that the ‘‘rise of an administrative state . . . gave the President immense and previously unknown power’’). 18. Hugh Heclo, ‘‘What Has Happened to the Separation of Powers?’’ in Separation of Powers and Good Government, ed. Bradford Wilson and Peter W. Schramm (Lanham, Md.: Rowman & Littlefield, 1994), 147. 19. Peter Strauss, Administrative Justice in the United States, (Durham: Carolina Academic Press, 2002), 256. 20. Heclo, ‘‘What Has Happened to the Separation of Powers?’’ 147.

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Administrative Procedure Act (apa) to require that agencies develop and maintain thorough records of all the information that has gone into the creation of a new rule. These records are then used by judges to scrutinize agency decisions and to determine whether they are consistent with statutory mandates that are inevitably ambiguous. Through this process of review—deciding whether an agency action accords with congressional legislation and fair procedures—judges are frequently the final word on what public policy is to be. Thus, by determining whether agencies have used reasonable means to achieve reasonable results, the courts have increased their policymaking authority.21 Although the promulgation of agency regulations is generally governed by procedures set out by the apa, there are many types of rules that fall outside the apa and are governed only by judicial supervision. These rules then subject only to the scrutiny of the courts. Such rules include interpretive rules, general statements of policy, and rules of agency organization, procedure, or practice. Moreover, it is up to the courts to distinguish between legislative and nonlegislative, or interpretive, rules—a distinction that is far from clear-cut.22 Yet, by making this distinction and deciding ultimately which rules have binding effects, courts can intrude into the agency policymaking process, even though under the traditional model involvement in such a process is not within the courts’ competence. When an administrative agency engages in rulemaking, which is similar to the lawmaking function performed by Congress, the courts have much more control than they ever could have over congressional legislation. For instance, courts have restricted the type of off-the-record, ex parte contacts that agency officials can have with interested parties prior to promulgating a rule, even though the hallways of Congress are filled with such ex parte contacts.23 In addition, courts can require agencies to give specific kinds of public notice regarding an upcoming rulemaking proc21. Id. 22. John Manning, Nonlegislative Rules, 72 Geo. Wash. L. Rev. 893, 894 (2004). 23. See, e.g., Home Box Office, Inc. v. FCC, 567 F. 2d 9, cert. den. 434 U.S. 829 (1977).

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ess—a requirement that is completely inapplicable to the congressional legislative process. Aside from these notice requirements, courts have also imposed heightened record requirements at the tail end of the administrative process. With respect to informal rulemaking, for instance, courts insist that agencies produce a particular kind of record that can be used as a basis for judicial review, even though the apa does not contain such a requirement.24 Whereas formerly the courts saw this process as one that should take advantage of agency expertise, now the rulemaking process is used by the courts to closely monitor agency activities and outcomes. By mandating tougher record requirements, courts can achieve a tougher judicial review, which in turn can inject the courts more solidly into the agency’s policymaking process. Thus, the record produced by the rulemaking process is geared more to satisfying the demands of the reviewing court than to supporting the needs of the agency in promulgating its new rule. Significantly expanded standing rights have also given the courts more opportunities to review and influence agency decisions. During the early years of the Administrative Procedure Act, individual standing to challenge agency actions was quite restrictive.25 But during the 1970s, standing was greatly expanded, in part because of a desire to allow for more judicial oversight of administrative agencies. In Bennett v. Spear, a unanimous Court held that recreational users of water were within the zone of interests of the Endangered Species Act and could sue to contest measures taken to protect certain species.26 In National Credit Union Administration v. First National Bank and Trust Company, the Court greatly liberalized the zone of interest test used to determine standing to challenge an administrative agency action.27 According to the Court, this test does not address whether Congress specifically intended to benefit

276.

24. Gary Lawson, Federal Administrative Law (Saint Paul: Thomson/West, 2004),

25. See Thomas W. Merril, Capture Theory and the Courts, 72 Chi.-Kent L. Rev. 1039, 1075–76 (1997). 26. 520 U.S. 154 (1997). 27. 522 U.S. 479 (1998).

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a particular class of plaintiffs and hence give them standing to sue; it asks only whether the particular plaintiff’s interests affected by the agency action are arguably within the zone of interests of the enabling statute. Later, in Friends of the Earth, Inc. v Laidlaw Environmental Services, Inc., the Court granted standing to an environmental group suing under the Clean Water Act.28 This standing was granted even though the plaintiff had not demonstrated that the pollution had caused any identifiable harm to the natural resource used by the plaintiff. And despite requiring in Lujan v. Defenders of Wildlife that plaintiffs in environmental citizen suits satisfy the standing requirement by showing an ‘‘injury in fact,’’ the Court recognized that such injury could be merely aesthetic or recreational.29 Moreover, as the Court held, an aesthetic interest can arise merely in viewing an endangered species. These environmental citizen suits, brought against defendants who are allegedly violating federal environmental statutes, could well infringe on the separation of powers doctrine, insofar as they interfere with the executive branch’s constitutional duty to execute the law.30 Since enforcement is an important part of the President’s constitutional duty to execute the law, the expansion of citizen suits may indeed erode one of the executive branch’s most important duties.31 At the same time, letting the judiciary decide such suits transfers to the courts a power that might well belong to the executive branch. The threat posed to the separation of powers by the Court’s expansion of standing was illustrated in Federal Election Commission v. Akins.32 In Akins, the Court granted standing to a group of voters who sought to challenge a decision made by the Federal Election Commission (fec) that the American Israel Public Affairs Committee (aipac) did not qualify as a political committee within the meaning of the Federal Election Campaign Act. The injury-in28. 528 U.S. 167 (2000). 29. 504 U.S. 555, 560, 578 (1992). 30. See, e.g., Bennett v. Spear, 520 U.S. 154, 165 (1997) (noting that the ‘‘obvious purpose’’ of citizen suits was ‘‘to encourage enforcement by so-called private attorneys general’’). 31. See Buckley v. Valeo, 424 U.S. 1, 138, 140 (1976) (holding that the Executive’s discretionary ability to seek judicial relief is central to its constitutional authority). 32. 524 U.S. 11 (1998).

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fact alleged by the challengers related to their inability to obtain certain information that they would otherwise be able to receive if the fec had determined that aipac was a political committee and hence subject to the information-producing requirements of the Act. Essentially, the thrust of the complaint was that the fec had not commenced an enforcement action against a third party— aipac. Yet even though a previous decision in United States v. Richardson held that a voter’s interest in information was just a generalized grievance, constitutionally inadequate to confer standing and normally confined to the political arena, the Court in Akins nonetheless awarded standing. Thus, by conferring upon a private individual the ability to go to court to force the executive branch to enforce a law against a third person, Akins effectively reduced the power of the executive branch while simultaneously expanding the power of the judiciary.

The Hard-Look Doctrine and Judicial Scrutiny of Agencies In reviewing agency actions, courts have often imposed higher standards of review than those imposed by Congress in the Administrative Procedure Act (apa).33 As provided by the apa, the standard of review for informal rulemaking is the arbitrary and capricious test.34 In the first two decades following enactment of the apa, this test was applied with great deference to administrative agencies.35 However, in the 1970s and 1980s, with decisions like Citizens to Preserve Overton Park v. Volpe36 and Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co., 37 the Court imposed a more heightened standard of judicial review than was provided for in the apa. Rather than just requiring that agency decisions not be ‘‘arbitrary and capricious,’’ for instance, the courts have held agencies to a higher standard of reasoned decisionmak33. Administrative Procedure Act, 5 U.S.C. 551 et. seq. (1946). 34. See 5 U.S.C. at § 706(2) (A). 35. See Daniel B. Rodreguez, Jaffe’s Law: An Essay on the Intellectual Underpinnings of Modern Administrative Law Theory, 72 Chi.-Kent L. Rev. 1159, 1163 (1997). 36. 401 U.S. 402 (1971). 37. 463 U.S. 29 (1983).

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ing.38 Thus, with respect to the administrative state, broad delegations of power to agencies have coincided with increasing judicial scrutiny over those agencies. But this compromise effectively transfers power from Congress to the courts, because it is the judiciary that interprets and enforces those safeguards. The increasing supervisory role of the courts over administrative agencies is reflected in the development of the ‘‘hard-look doctrine.’’ In Citizens to Preserve Overton Park, Inc. v. Volpe, the Court ruled that, beyond what the arbitrary and capricious standard had previously required, a reviewing court must make a thorough examination of the entire record pertaining to an agency decision.39 According to Overton Park, the standard of review was to be ‘‘searching and careful’’—a standard more scrutinizing and less deferential than the traditional standard of review.40 Contrary to earlier and more deferential applications of the arbitrary and capricious test, Overton Park did not employ a presumption that the agency’s decision was supported by the facts; instead, the Court undertook a ‘‘thorough, probing, in-depth review’’ into the factual basis of the decision.41 Furthermore, according to Overton Park, a reviewing court could no longer simply look at those parts of the record that supported the agency’s decisions; it had to examine all the evidence. Even though the informal agency decision in Overton Park did not have to be based on the record, and even though no fact findings were required, the Court essentially ruled that a formal-type record was necessary to determine the legality of the agency’s action.42 Thus, while the apa did not require a formal record to be made, the impact of Overton Park was to force agencies to provide the kind of record that permits the courts to carry out a searching and careful review.43 Later, in Motor Vehicle Manufacturers Association v. State Farm 38. Under the Administrative Procedure Act, a reviewing court can only set aside agency action that is arbitrary and capricious, unless a higher standard of review is imposed by another statute. 5 U.S.C. § 706(2) (A); Attorney General’s Manual on the APA, 108 (1947). 39. 401 U.S. 402, 416 (1971). 40. Id. 41. 401 U.S. at 416. 42. Overton Park, 401 U.S. at 419–21. 43. Peter L. Strauss, Administrative Justice in the United States, 236, 380.

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Mutual Automobile Insurance Co., the Court took the arbitrary and capricious test one step further and adopted the hard-look standard of review regarding agency action.44 This hard-look standard requires courts to take an even more scrutinizing look at informal rulemaking than had been taken under earlier applications of the arbitrary and capricious test. It holds agencies to a high standard of reasoned decisionmaking and requires judges to immerse themselves in the technical details underlying the agency’s action. Using this standard, the Court in State Farm overturned the agency rule and essentially substituted its judgment for that of the agency. Indeed, despite the ruling in Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council that reviewing courts could not impose on administrative agencies any procedures beyond those laid out in the apa,45 the continued vitality of Overland Park and State Farm suggests that an increasingly intense judicial scrutiny of agency behavior appears to be taking place. Subsequent to Overton Park, informal administrative proceedings became much more formalized.46 Prior to Overton Park, the standard of review under the arbitrary and capricious test required only that agency action be supported by a minimal rationality, but under this deferential standard courts rarely reversed agency decisions.47 Whereas the old minimum rationality test simply required the agency merely to consider the facts and explain its decision, the hard-look test analyzed the decisionmaking process of the agency and demanded that agencies give ‘‘adequate’’ consideration and ‘‘reasoned’’ explanation.48 The hard-look standard was also quasiprocedural, encompassing ‘‘a set of requirements intended to ensure that the agency itself had taken a hard look at the relevant issues before reaching its decision.’’49 44. 463 U.S. 29 (1983). 45. 435 U.S. 519, 546–48 (1978). 46. See Gordon Young, Judicial Review of Informal Agency Action, 10 Admin. L. J. 179, 206 (1996). 47. See Merrick Garland, Deregulation and Judicial Review, 98 Harv. L. Rev. 505, 525 (1985). . 48. Id. at 533. See Telocator Network of Am. v. FCC, 691 F. 2d 525, 537 (D.C. Cir. 1982); see also World Communications, Inc. v. FCC, 735 F. 2d 1465, 1476 (D.C. Cir. 1984). 49. Garland, Deregulation and Judicial Review, 525.

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In State Farm, the Court struck down a Department of Transportation order rescinding its previously promulgated passive-restraint regulation requiring automatic seatbelts and airbags. Employing the hard-look standard, the State Farm Court held that an agency must provide a reasoned analysis for any change in policy, consider all relevant factors, explore any alternative ways of achieving its objectives, and show that its action was the result of reasoned decisionmaking. With this decision as a precedent, reviewing courts began scrutinizing agency actions much more closely, abandoning the previous position that the APA intended agencies to be treated like legislatures. This new approach differed from that used in Pacific States Box & Basket Co. v. White, in which the Court equated agency action with legislative action, insofar as both were to be reviewed under the rational basis test.50 Unlike agencies in the wake of State Farm, a legislative body can repeal a statute for any reason, including those based purely on political philosophies. Because of the hard-look approach, agency actions are scrutinized much more than legislative actions; courts can examine both agency fact findings and policy choices. Contrary to past experience, judicial rejection of informal agency action is now a fairly common event. According to Professor Merrick Garland, ‘‘it is undeniable that courts are applying hard look review with increased vigor.’’51 Commentators have argued that the hard-look test provides an occasion for judges to substitute their own policy preferences and judgments for the agency’s.52 Unquestionably, this type of review gives courts greater discretionary power to intrude into the agency process. When they employ the hard-look doctrine, courts have great leeway to be as critical or accommodating of agency action as they wish to be. The hard-look doctrine authorizes courts to scruti50. 296 U.S. 176 (1935). 51. Garland, Deregulation and Judicial Review, 540 (stating that ‘‘in sharp contrast to the regulatory experience of prior decades, today the agencies are finding a substantial percentage of their deregulatory decisions overturned for failure to pass the arbitrary and capricious test’’). 52. Richard Pierce, Jr., The Appropriate Role of Costs in Environmental Regulation, 54 Admin. L. Rev. 1237, 1264–65 (2002).

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nize agency action in a way unenvisioned by Congress. Although the apa prohibits the judiciary from applying more than an arbitrary and capricious test to informal rulemaking, the hard-look doctrine nonetheless requires agencies to justify departures from past practices, to furnish detailed explanations of their decisions, and to explain the reasons they did not choose certain alternatives. Regardless of whether this approach allows judges to re-shape agency actions, the hard-look doctrine does permit the courts to intrude into agency action much more than they could ever intrude into the workings of Congress.53 In a way, the rise of the hardlook standard has coincided with the demise of the nondelegation doctrine in a kind of judicial-agency arrangement whereby the courts allow Congress to delegate increasing amounts of power to agencies, but then subject those agencies to constant judicial scrutiny.54

The Chevron Doctrine and Judicial Supremacy Those who argue that the growth of the administrative state has diminished judicial power often cite Chevron U.S.A. Inc. v. Natural Resources Defense Council, a decision that requires courts to give deference to an agency’s conclusions of law when interpreting its governing statute.55 The Chevron doctrine is put forth as prime evidence of judicial deference or subservience to agency decisions. Yet even though this case is often cited as one in which the courts have handed over lawmaking powers to agencies, the judiciary still controls the vital matter of when to give such deference. In Chevron, the Court issued a groundbreaking decision directing the judiciary to defer to an agency’s interpretation of a congres53. Courts have no authority to substitute their own policy decision for that of Congress. See Grupo Mexicano de Desarrollo S. A. v. Alliance Bond Fund, Inc., 527 U.S. 308, 322 (1999). 54. Sidney A. Shapiro and Richard E. Levy, Heightened Scrutiny of the Fourth Branch: Separation of Powers and the Requirement of Adequate Reasons for Agency Decisions, 1987 Duke L. J. 387, 413–27 (depicting the stiffening of rationality review as a judicial response to the failure of structuralist (e.g., nondelegation doctrine) and procedural controls to check agency discretion). 55. 467 U.S. 837, 844–45 (1984).

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sional statute that it was charged with administering. The specific issue in Chevron was whether the Court should defer to an Environmental Protection Agency rule that interpreted some ambiguous provisions of the Clean Air Act. In addressing this issue, Chevron established a two-step process for determining the standard of review that should be applied to agency interpretations of statutes. The first step involves determining whether the statute is ambiguous or whether it clearly expresses congressional intent. If the statute is not ambiguous, there can be no further action on the matter; the will of Congress must be upheld. If, however, the reviewing court determines that the statute is ‘‘silent or ambiguous’’ in relevant respects, then at step two the court must determine whether the agency’s interpretation is a reasonable one.56 Prior to Chevron, courts normally deferred to agency interpretations of statutes only when Congress had specifically delegated power to an agency ‘‘to define a statutory term or prescribe a method of executing a statutory provision.’’57 In a general sense, questions of law or matters of law declaration (as opposed to law application) fell under the jurisdiction of the courts.58 Prior to Chevron, reviewing courts were allowed to make their own independent judgments on agency conclusions of law. For this reason, Chevron has been interpreted by some commentators as a major change in the law.59 As one commentator has observed, Chevron ‘‘represents a usurpation of judicial power,’’ since deciding questions of law ‘‘lies at the heart of the judiciary’s function.’’60 Indeed, one of the most fundamental principles of American law is Chief Justice John Marshall’s pronouncement in Marbury v. Madison that ‘‘it is emphatically the province and duty of the judicial department to say what the law is.’’61 At first glance, the Chevron doctrine seems to give agencies a big 56. Id. at 843–44. 57. United States v. Vogel Fertilizer Co., 455 U.S. 16, 24 (1982). 58. See, e.g., Packard Motor Car Co. v. nlrb, 330 U.S. 485, 492–93 (1947). 59. See Cass R. Sunstein, Law and Administration After Chevron, 90 Colum. L. Rev. 2071, 2075 (1990) (describing Chevron as ‘‘one of the very few defining cases in the last twenty years of American public law’’). 60. Sanford Caust-Ellenbogen, Blank Checks: Restoring the Balance of Powers in the Post-Chevron Era, 32 B. C. L. Rev. 757,759, 787 (1991). 61. 5 U.S. (1 Cranch) 137, 177 (1803).

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advantage. After all, the legal conclusions and interpretations of lower courts are not given such deference by appellate judges, who review these matters on a de novo basis. According to critics, Chevron denies to the judiciary vital duties given it by a system of separation of powers. Consequently, Chevron is seen as shifting too much power from the courts to the executive branch. However, a more careful examination shows that Chevron has not really deprived the courts of all that much authority. Even under a Chevron approach, it is up to the courts to determine when a statute is ambiguous, and then whether the agency decision is reasonable. Several years after Chevron, in Immigration and Naturalization Service v. Cardoza-Fonseca, the Court overturned an Immigration and Naturalization Service (ins) interpretation of an immigration statute, stating that the judiciary was the final authority on statutory construction when congressional intent was clear.62 Thus, if the Court, on its own review of the statute, finds an absence of doubt concerning congressional intent, it independently judges whether the agency’s interpretation of the statute supports or contradicts that intent. In another case showing that Chevron has not been as judicially deferential a decision as was first thought, the Court struck down a policy of the Federal Energy Regulatory Commission after deciding that the policy contradicted the underlying statute, in which there was no ambiguity.63 Even in regard to the reasonableness of the agency’s interpretation, which goes to step two of the Chevron test, the Court has felt free to overrule the agency. In AT&T Corp. v. Iowa Utilities Board, the Court simply pronounced the agency’s interpretation unreasonable, without ever explaining the scope or nature of the judicial inquiry into reasonableness.64 Judicial discomfort with a blanket application of the Chevron doctrine became evident in FDA v. Brown & Williamson Tobacco Corp.65 The issue in Brown & Williamson was whether the Food and Drug Administration’s (fda’s) labeling of nicotine as a drug within 62. 63. 64. 65.

480 U.S. 421 (1987). Mobil Oil Exploration v. United Distribution Co., 498 U.S. 211 (1991). 525 U.S. 366 (1999). 529 U.S. 120 (2000).

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the meaning of the Food, Drug, and Cosmetic Act, hence subjecting tobacco products to fda regulation, was a permissible interpretation of the Act. The Court overturned the agency’s interpretation, ruling that since Congress had already addressed the issue, the fda’s interpretation was entitled to no deference. Although recognizing that statutory ambiguity conferred an implicit delegation to agencies under Chevron, the Court nonetheless seemed to craft out an exception for ‘‘extraordinary cases,’’ where ‘‘there may be reason to hesitate before concluding that Congress has intended such an implicit delegation.’’66 The Brown & Williamson Court examined the issue of whether Congress had intended to delegate the power to regulate tobacco by examining the importance of the issue and the historical pattern of legislative enactments on the subject. With respect to this examination, the Court’s Chevron step-one analysis of statutory meaning went far beyond the actual text of the statute that the fda had interpreted. The Court looked not only to other parts of the statute but to the whole history of tobacco-related legislation for insight into congressional policy and intent. This approach differed dramatically from the typical Chevron step-one analysis. Examining previous congressional legislation on tobacco, the Court found that Congress had repeatedly refused to grant to the fda the kind of power it claimed in Brown & Williamson. For instance, Congress had rejected legislation giving the fda regulatory authority over tobacco on four occasions during the 1960s and on three occasions during the late 1980s. The use of the Chevron doctrine in Brown & Williamson was much different from its use in previous cases. Largely because the stakes were so high and immediate, the Court dug deeper, searching for evidence that would undermine the fda’s interpretation. It closely scrutinized the agency’s action against its own independent reading of congressional intent. As the Court reasoned, where the case involves ‘‘important’’ or ‘‘major’’ questions of law, Congress is less inclined to leave the matter to an agency.67 In view of the im66. Id. at 159. 67. Brown & Williamson, 529 U.S. at 159.

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portance of the issue, the Court was ‘‘confident that Congress could not have intended to delegate a decision of such economic and political significance to an agency in so cryptic a fashion.’’68 The Court has also narrowed the Chevron doctrine by making it presumptively inapplicable to nonlegislative or interpretive rules. In United States v. Mead Corp., the Court ruled that Chevron deference should occur only when ‘‘it appears that Congress delegated authority to the agency generally to make rules carrying the force of law.’’69 According to Mead, if an agency interprets a statute outside of the notice-and-comment procedures provided by the Administrative Procedure Act, courts should not give Chevron deference to that interpretation. Thus, Mead reflects ‘‘a switch by the Court from an expansive Chevron deference to agency statutory interpretations toward a more critical inquiry of agency action.’’70 Specifically at issue in Mead was the degree of deference to be given to a tariff ruling by the Customs Service. This ruling involved day planners, an organizational notebook being imported by Mead Corporation. In 1993, the Customs Service changed the tariff categorization of these day planners from ‘‘other’’ books, which had no tariffs, to ‘‘diaries,’’ which were subject to a 4 percent tariff. But the Court held that the Custom Service’s classification was not entitled to Chevron deference. According to the Court, this classification, communicated solely in ‘‘ruling letters’’ issued to importers of goods, and without any formal-type proceedings allowing for public notice and comment, are ‘‘beyond the Chevron pale’’ and are ‘‘best treated like interpretations contained in policy statements, agency manuals, and enforcement guidelines.’’71 In so holding, the Court articulated a new test for applying the Chevron doctrine: that deference to agency interpretations would be given only if certain 68. Id. at 160. 69. 533 U.S. 218, 226 (2001) (refusing to accord Chevron deference to a Customs Service tariff classification ruling because it was not issued pursuant to congressional delegation to make decisions with the force and effect of law). 70. Bradford C. Mank, Can Administrative Regulations Interpret Rights Enforceable Under Section 1983? Why Chevron Deference Survives Sandoval and Gonzaga, 32 Fla. St. U. L. Rev. 843, 875 (2005); see also Mead, 533 U.S. at 226–30 (arguing that Chevron deference does not apply to agency interpretations contained in informal interpretive documents lacking rulemaking status). 71. Mead, 533 U.S. at 234.

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evidence existed that Congress had specifically delegated authority to the agency to make such rules carrying the force of law. Stepping back from Chevron as a blanket presumption of congressional intent, the Mead Court conditioned Chevron deference on certain indicators of legislative intent, such as the kind of procedural formality required of the agency by Congress. Instead of receiving a blanket deference, ‘‘administrative implementation of a particular statutory provision qualifies for Chevron deference when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority.’’72 According to Mead, congressional intent should no longer be presumed from ambiguity: it should be measured by the presence or absence of procedural formality. Marking a dramatic departure from Chevron, the Mead doctrine now commands courts to conduct a kind of pre-Chevron inquiry to determine the existence of congressional intent that an agency should possess interpretive powers. This means that Chevron applies only after the courts have found some evidence of congressional intent; and in this analysis, courts should scrutinize any factors that rebut or negate that intent. Such factors include: the degree to which the matter delegated to the agency falls within the technical expertise of the agency; the transparency and accessibility of the procedures used by the agency to arrive at its interpretation; the identity and position of the person in the agency who issued the interpretive ruling; and the characteristics of the particular agency doing the interpreting. Another instance in which Chevron does not deprive the courts of as much power as may typically be thought involves the fact that Chevron does not apply to nonlegislative rules. Because there is great uncertainty involved in distinguishing legislative from nonlegislative rules, Mead gives the courts vast power in determining when to accord Chevron deference to agency interpretations. Indeed, whether an interpretive rule merely interprets a statute or 72. Mead, 533 U.S. at 226–27 (instructing reviewing courts to examine various ‘‘indicators of delegation meriting Chevron treatment,’’ such as ‘‘express congressional authorization to engage in the process of rulemaking or adjudication that produces regulations or rulings for which the deference is claimed’’).

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makes new law is an issue fraught with ambiguity. As Professors E. Donald Elliott and William Funk have argued, courts can enforce the distinction between legislative and nonlegislative rules simply by assigning different legal effects to an agency’s application of rules that are adopted without notice and comment.73 Consequently, by essentially denying Chevron deference to a whole category of agency rulings, Mead has instigated a post-Chevron shift of power back to the courts. The Chevron doctrine is further diluted by the fact that the Court has indicated that interpretations of jurisdiction statutes are not subject to Chevron deference and ‘‘must always be decided de novo by the courts.’’74 In addition, courts have denied Chevron deference to agency determinations of constitutional issues and to agency interpretations of judicial opinions.75 Chevron deference is also denied if more than one agency would be entitled to such deference, as when two or more agencies are charged with enforcing (and hence interpreting) the same statute.76 And many courts do not confer Chevron deference if the agency’s interpretation does not involve a statute it is charged with administering.77 Just as the Chevron doctrine initially seemed to leave courts in a weakened position with respect to agencies, the Chenery rule likewise appeared at first to give agencies the upper hand. In Securities and Exchange Commission v. Chenery Corp., the Court stated that the choice of proceeding by rulemaking or adjudication belonged to the agency alone.78 However, like Chevron, this rule has subsequently been modified and scaled back. For instance, the courts have established certain notice requirements that restrict an agency’s freedom to set policies retroactively through adjudication. 73. William Funk, When Is a Rule a Regulation? Marking a Clear Line Between Nonlegislative Rules and Legislative Rules, 54 Admin. L. Rev. 659, 660–67 (2002) (arguing that courts should take an ex post approach to putative nonlegislative rules); E. Donal Eliott, Re-Inventing Rulemaking, 41 Duke L. J. 1490, 1491 (1992). 74. Smiley v. Citibank, 517 U.S. 735, 744 (1996). 75. See Gulf Power Co. v. FCC, 208 F. 3d 1263, 1271 (11th Cir. 2000); Reno v. Bossier Parish School Board, 528 U.S. 320 (2000). 76. See Rapapport v. Untied States Dept. of the Treasury, 59 F. 3d 212 (D.C. Cir. 1995). 77. See SSA, Baltimore, Maryland v. FLRA, 201 F. 3d 465, 471 (D.C. Cir. 2000); Adams Fruit Co. v. Barrett, 494 U.S. 638 (1990). 78. 332 U.S. 194, 203 (1947).

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In these cases, the retroactivity of applying new standards through adjudication has been rejected because of ‘‘unfairness,’’ particularly when doing so would interfere too much with settled expectations.79 For instance, the Federal Trade Commission was forced to use rulemaking rather than adjudication where the underlying statute imposed an unusually forceful effect.80 Still other cases indicate that only rulemaking may be used by agencies operating under government grant programs.81 And finally, an agency may be restrained from choosing rulemaking if the reviewing court finds that certain facts to be determined by the agency are unique to a party appearing before that agency.82 Even when an agency decides to proceed through adjudication, the courts may require that agency to use formal rather than informal procedures. In Seacoast Anti-Pollution League v. Costle, the First Circuit Court of Appeals essentially presumed that adjudicatory hearings should be formal hearings.83 Its rationale was that formal proceedings were needed to protect the public interest, and that the evaluation of this public interest was something the courts could do, even though Congress had enacted no statute granting such power. But this presumption of formality obviously gives reviewing courts more authority to scrutinize the decisions and procedures adopted by the agency.

The Court’s Strict Scrutiny of Separation of Powers Disputes with the President When put into a direct confrontation with the higher echelons of the executive branch, unlike the indirect dealing through the administrative state, the courts yield no ground. This is just the opposite of the way that the courts operate with the nondelegation 79. See, e.g., Cark-Cowlitz Joint Operating Agency v. Federal Energy Regulatory Comm’n, 826 F. 2d 1074, cert. den. 485 U.S. 913 (1988). 80. Ford Motor Co. v. FTC, 673 F. 2d 1008 (9th Cir. 1981). 81. See, e.g., Curry v. Block, 738 F. 2d 1556, 1563 (8th Cir. 1984). 82. See Heckler v. Campbell, 461 U.S. 458 (1983). 83. 572 F. 2d 872 (1st Cir. 1978) (presuming, subject to rebuttal by evidence of contrary congressional intent, that any statutory language calling for a hearing triggers formal adjudication).

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doctrine. In Rasul v. Bush, the Supreme Court addressed the availability of habeas corpus to foreign nationals detained abroad in connection with the U.S. campaign against terror.84 The Court ruled that the detention of alleged enemy combatants was not a matter entrusted to the sole and absolute discretion of the President and Congress, and hence not outside the scope of judicial review. It held that the U.S. federal courts do in fact have jurisdiction to hear habeas corpus petitions of such detainees and that foreign enemy combatants could challenge their detention in federal courts. This case was essentially a separation of powers dispute between the President’s authority in the military arena and the courts’ role in preserving individual rights. Yet despite the unquestioned role of the President to conduct military and foreign affairs, especially during periods of armed conflict, the Court refused to give any deference. In a companion case to Rasul, the Court held that an alleged enemy combatant was entitled not only to challenge the circumstances of his detention before a court, but also to present arguments against his detention.85 In dissent, Justice Clarence Thomas argued that the constitutional authority of the President to wage war and protect the national security should preclude interference by the courts. Matters involving military or war-related affairs belong solely to the executive and legislative branches, Justice Thomas wrote. Moreover, such matters are of a type for which the judiciary has neither aptitude, facilities, nor responsibility. Indeed, the Court’s holding meant that the government might have to divulge highly classified information to the purported enemy combatant, who could upon release turn over such secrets to America’s enemies. A similarly unyielding stance toward the President was displayed in the Court’s decision approving the independent counsel statute.86 In 1988 the Court upheld the constitutionality of the independent counsel provisions of the Ethics in Government Act, authorizing the creation of independent counsels to prosecute 84. 124 S. Ct. 2686 (2004). 85. Hamdi v. Rumsfeld, 124 S. Ct. 2633 (2004). 86. Morrison v. Olson, 487 U.S. 654 (1988).

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high-level executive branch officials. The Court so held even though the counsels investigating executive personnel were to be appointed by a panel of judges, rather than the President, and were not removable except for good cause. This decision not only chipped away at the independence of the presidency, but gave the judiciary added powers and status vis-a`-vis the executive branch. In Clinton v. City of New York, the Court invalidated the Line Item Veto Act, which authorized the President to cancel particular budgetary provisions that had been signed into law.87 In Clinton, the President had exercised his power under the Act to cancel an item of new spending. Subsequently, this cancellation was challenged on the ground that the Act allowed the President to engage in lawmaking outside the procedures established by Article I, Section 7. In its decision, the Court agreed, noting that through the Act the President had effectively amended an act of Congress by repealing a portion of it. Under the Line Item Veto Act, the President, in order to exercise his veto power, had to make a decision about the desirability of certain tax and spending provisions within five days of their enactment. Moreover, the President had to make an all-or-nothing choice; he could not devise a compromise of his own. These features had allowed Congress to delegate a precise and controlled power to the President, while making that delegation less costly to Congress. With the line item veto, Congress effectively controlled who would exercise the power it had conferred and when such power would be exercised. In addition, because the power could be exercised only once, Congress did not have to enact additional legislation to regain control of future policymaking. Altogether, these features made the power conferred by the Line Item Veto Act less significant than other, more traditional delegations made by Congress and upheld by the courts. Even so, the Court, in a rigid approach, held that the Act violated the separation of powers. This formalistic approach contrasted sharply with the functionalist approach used by the Court to address congressional delegations to administrative agencies. Indeed, the narrow and strictly defined delegation overturned in Clinton stands in stark contrast with the broad and virtually undefined delegation upheld in Mistretta. 87. 524 U.S. 417, 436 (1998).

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The Strict Approach to Separation of Powers Disputes with Congress When a separation of powers dispute involves Congress on one side and the courts or agencies on the other, the decision more often than not goes against Congress. As one commentator theorizes, the ‘‘Court likes agencies more than it likes Congress.’’88 Yet, while the Court may tolerate broad grants of power from the legislative to the executive branch, it is much more strict with perceived congressional attempts to expand its own power. Contrary to the flexibility given to administrative agencies, the Court has required Congress to hold strictly to the lawmaking requirements in Article I, Section 7. But some scholars have argued that the Court’s devotion to such strict and formal procedures is overly simplistic.89 They note that the rise of the administrative state has led to many delegations of legislative authority to executive agencies, which in turn promulgate regulations without meeting the requirements of bicameralism and presentment. Among the separation of powers decisions that have gone against Congress, Buckley v. Valeo rejected Congress’s effort to create a Federal Election Commission in which some of the members were directly appointed by Congress.90 In Chadha, the Court struck down the device of the one-house legislative veto of executive branch action. And in Bowsher v. Synar, the Court invalidated a congressional scheme that gave certain budgetary decisionmaking powers under the Gramm–Rudman–Hollings Act to the Comptroller General.91 On the other hand, the Court approved of Congress’s decision to give jurisdiction over common law counterclaims to the Commodity Futures Trading Commission in Commodity Futures Trading Commission v. Schor.92 And it upheld the independent counsel statute against separation of powers attacks in Morrison v. Olson.93 88. Michael Herz, The Rehnquist Court and Administrative Law, 99 NW. U. L. Rev. 297, 363 (2004). 89. See Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 Colum. L. Rev. 573, 575, 579 (1984). 90. U.S. 1 (1976). 91. 478 U.S. 714 (1986). 92. 478 U.S. 833 (1986). 93. U.S. 654 (1988).

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Scholars have struggled to reconcile these decisions, all of which arguably deal with the structural separation between the branches of government, and the degree to which the traditional functions of one can be exercised by another. If all these decisions rest on separation of powers theory, how can their divergent outcomes be explained? Perhaps the answer lies in the fact that the Court is more lenient toward separation of powers transgressions by agencies, which are much more under the control of the judiciary than is the President or Congress. At issue in INS v. Chadha was the one-house legislative veto provision in the Immigration and Nationality Act (ina), under which either the U.S. House or the Senate could veto the Attorney General’s suspension of an alien’s deportation.94 When the Attorney General suspended Chadha’s deportation, the House of Representatives exercised its veto authority by passing a resolution overturning the suspension. Because the House did not consider the resolution to be a legislative act but merely an exercise of its authority under the ina, the resolution was not submitted to the Senate or sent to the President. However, the Court disagreed. It held that the House’s veto was in fact an exercise of Congress’s legislative power, and for such an action to have any binding legal effect it must be ‘‘exercised in accord with the single, finely wrought, and exhaustively considered’’ bicameralism and presentment procedure outlined in Article I.95 In Chadha, the Court declared that all one-house legislative veto provisions were unconstitutional. It ruled that since the exercise of such vetoes was equivalent to lawmaking they should have to follow the normal constitutional requirements of passing both houses of Congress and being presented to the President for his signature or veto. Thus, under Chadha, Congress may not participate in the execution of a law, as the Court said it did by giving itself a role in the administration of the ina’s statutory scheme.96 However, such an executive role could be exercised by administrative agencies, even those that also exercise lawmaking powers. Indeed, the combi94. Chadha, 462 U.S. at 924–25. 95. Id. at 951. 96. See Jonathan R. Siegel, The Use of Legislative History in a System of Separated Powers, 53 Vt. L. Rev. 1457, 1467 (2000).

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nation of executive and legislative functions within an agency is a hallmark of the administrative state. Yet if the courts were to judge this feature of combined functions under the kind of formalist approach used in Chadha to overrule a congressional delegation to itself, the very foundation of the administrative state would be jeopardized. Subsequent to Chadha, the Court put even more rigid controls on Congress when it declared unconstitutional a provision in the Gramm–Rudman–Hollings Budget Act that allowed the Comptroller General to order executive spending cuts if a schedule of deficit reduction targets was not met.97 To compensate for its own inability to control spending, Congress in the Gramm–Rudman–Hollings law created an automatic deficit-reduction mechanism. At issue in Bowsher v. Synar was Section 251 of the law, which provided that the Office of Management and Budget and the Congressional Budget Office would make periodic reports to the Comptroller General on whether spending exceeded the agreed-upon budget ceilings. If the Comptroller General found that spending had in fact exceeded the caps, he or she would report that fact to the President, who was required to institute across-the-board spending cuts in the executive branch. Under this arrangement, according to the Court, the Comptroller General exercised executive powers. And since the Comptroller General is removable at the initiative of Congress, the executive duties given to that officer by the Act were found to interfere with the powers and independence of the executive branch. Another case in which the Court strictly enforced federal lawmaking procedures, especially the bicameralism and presentment requirements of Article I, Section 7, was Metropolitan Washington Airports Authority v. Citizens for the Abatement of Aircraft Noise.98 In MWAA, the Court considered the constitutionality of a statute that authorized the transfer of operating control of two major airports from the federal government to the Metropolitan Washington Airports Authority (mwaa) on the condition that the mwaa create a Board of Review composed of nine members of Congress and vested with veto power over decisions made by 97. Bowsher v. Synar, 478 U.S. 714 (1986). 98. 501 U.S. 252 (1991).

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mwaa’s Board of Directors. After concluding that the Board of Review was an agent of Congress, the Court applied the anti-aggrandizement principle to find the action unconstitutional. But the Court avoided having to decide whether Congress’s powers under the statute were executive or legislative, reasoning that either classification would force it to invalidate the statute: ‘‘If the power is executive, the constitution does no permit an agent of Congress to exercise it. If the power is legislative, Congress must exercise it in conformity with the bicameralism and presentment requirements of Art. I, Section 7.’’99 Thus, contrary to its review of agency actions, the Court held to a strict, formalistic review of congressional action. Commentators have criticized decisions like Chadha and MWAA as unduly formalistic applications of the separation of powers doctrine.100 The counterargument, however, is that the framers regarded such procedures as a principal means of maintaining the separation of powers.101 And yet no such formalism is applied to agencies. Although agencies have wide latitude to exercise a combination of legislative, judicial, and executive functions, Chadha essentially held that an arm of Congress—for example, one house—cannot exercise the kind of lawmaking power that an administrative agency could make once it had been delegated such power by Congress. Although the Court generally seems to take a formalist approach only with respect to separation of powers issues directly involving the President and Congress, its rulings in this area do not significantly affect the workings of the modern administrative state. In Buckley v. Valeo, for instance, the Court held that Congress could not appoint executive officers, but this holding ‘‘in no way threatens the basic integrity of modern administrative governance, and it does not call into question the legitimacy of the core institutions of the modern state.’’102 Furthermore, as Gary Lawson argues, Chad99. Id. at 276. 100. Rebecca L. Brown, Separated Powers and Ordered Liberty, 139 U. Pa. L. Rev. 1513, 1525 (1991). 101. Clark, Separation of Powers as a Safeguard of Federalism, 328. 102. Gary Lawson, Prolegomenon to Any Future Administrative Law Course, 49 St. Louis U. L. J. 885, 891 (2005).

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ha’s nullification of the legislative veto likewise did not ‘‘seriously threaten the integrity’’ of the administrative state. Thus, as Lawson concludes, ‘‘when the basic institutions of modern administrative governance are at stake, the Court closes ranks and hurls the constitutional text into the Potomac River.’’103

A Violation of the Constitutional Scheme The general view sees the modern Court as having withdrawn from the separation of powers area. This view is largely a product of the Court’s acquiescence in the continued growth of the administrative state. Because it has permitted Congress to delegate broad powers to agencies, the Court is seen as a nonplayer in the separation of powers arena. However, this conclusion is based on only half of the equation—the half that involves the initial grant of authority to the agency. It ignores the other half—the half that pertains to the actual exercise of that authority and to the judicial review of that exercise. Through the workings of the agency process, the Court has come to occupy a stronger position, especially regarding the policymaking role traditionally assigned to Congress. Since courts exercise much control over the results of an agency’s policymaking decisions, they in turn have much influence over an agency’s decision as to which policymaking tool to use. Courts also dictate the standards over which agency decisions are reviewed and judged. Moreover, courts can shape the particular procedures employed by the agency, even after the agency chooses its particular policymaking approach. In these ways, policymaking power has traveled from Congress to the agencies and then to the courts. Consequently, visa`-vis Congress, the Court has gained in both influence and stature. And this gain, occurring indirectly through the agency process, has occurred at the same time that the Court has placed stricter separation of powers limits on the two elected branches. Through this two-track approach on separation of powers (treating grants of authority to the agencies more leniently than delegations made by Congress to itself or the President), the Court 103. Id.

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is strengthening itself in two different ways. First, it is gaining power through its review of agency actions. Second, it is gaining a relative advantage in connection with the elected branches because of its formalistic decisions that limit the scope of freedom available to those other branches. However, this gain in judicial power is just what the framers opposed. The drift of power from Congress to the courts contradicts the whole scheme of the Constitution. Under that scheme, the judiciary clearly occupies a subordinate position with respect to Congress. Indeed, the Constitution left it up to Congress to create a national judicial system, whereby Congress was free to establish and abolish federal courts as it saw fit. Except for the Supreme Court, all the federal courts were made structurally subordinate to the Congress.104 And even concerning the Supreme Court, Congress was empowered to set the number of Justices and to adjust or modify the jurisdiction of the Supreme Court. The judicial indifference toward separation of powers issues regarding administrative agencies also threatens the Constitution’s structural scheme aimed at the preservation of liberty. A system of separated powers exists not just as an organizational model for democratic government, but as a primary means by which to ensure the protection of individual liberty. However, this aspect of separation of powers has been largely ignored in modern constitutional law. Instead of protecting the separation of powers as a means of protecting individual rights, the Court has turned its sights almost completely to the enforcement of particular substantive rights. It has created new privacy rights and new substantive due process rights, rather than relying on the structural or procedural safeguards built into the Constitution by the framers. Granted, in the modern age, the enforcement of clear separation of powers standards poses difficult challenges, but so too does the ‘‘discovery’’ of new and unenumerated individual substantive rights. The Court’s two-track approach to separation of powers is just the opposite of what it should be. Its deferential stance toward con104. Forrest McDonald, Novus Ordo Seclorum: The Intellectual Origins of the Constitution (Lawrence: University Press of Kansas, 1985), 256.

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gressional delegations of power to agencies effectively ends up strengthening the two unelected branches of government—the judiciary and the ‘‘fourth branch’’ of the administrative state. However, with respect to the two elected branches—the President and Congress—the Court has chipped away at their power and freedom. Yet with these two branches, the Court should be more accommodating, not less; the Court should be more flexible, not so rigidly formalistic. Since both these branches are politically accountable, any leeway in the separation of powers area can be made up by the additional controls imposed through the political process. This approach was advocated by Justice Byron White in his Chadha dissent, where he argued in favor of judicial deference to congressional decisions regarding the functioning of government.105 Justice White attempted to check the growth of the administrative state by allowing Congress to retain oversight ability through the legislative veto. The argument is that if agencies are going to receive more and more powers, the ability of Congress to oversee them should be greater. If agencies can be delegated certain lawmaking and executive powers, Congress should certainly be able to delegate to one of its own houses a legislative veto. In Justice White’s view, the administrative process should proceed, but one house of Congress should also be able to block the exercise of delegated authority if it disagrees with the agency.106 Other critics likewise argue that, with respect to the political branches, the Court should be more accommodating on separation of powers disputes.107 It is often claimed that the resolution of separation of powers questions may demand distinctively political information that is easy for the judiciary to misapply, such as understanding executive and legislative perceptions of whether their core powers are being encroached upon.108 In Bowsher, for 105. 462 U.S. at 967–1003 (White, J., dissenting). 106. Tom Campbell, Separation of Powers in Practice (Stanford: Stanford University Press, 2004), 188. 107. See Keith Whittington, Extrajudicial Constitutional Adjudication, 80 N. C. L. Rev. 773, 813 (2002) (arguing that separation of powers disputes seem to call for judgments beyond the judiciary’s expertise). 108. Bruce Peabody and John Nugent, Toward a Unifying Theory of the Separation of Powers, 53 Am. U. L. Rev. 1, 38 (2003).

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example, the Court may have been better off deferring to the experiences of executive and legislative officials who had worked with the Comptroller General under the law. Furthermore, perhaps the Court should give separation of powers issues extra time to play themselves out, to see how they actually affect the branches. Perhaps the question should be asked as to whether the matter is still subject to political checks, whether there is still meaningful conflict between the President and the Congress on the particular issue. For instance, with the line item veto, the Congress could still reenact the provision struck down by the President. In the modern era, there has evolved an entrenched opposition to what is perceived as judicial activism and overreaching. But this criticism focuses primarily on the Court’s decisions regarding substantive individual rights. Almost never is the focus on the more indirect and structural ways in which the Court has increased its power, one of which is the way the Court has shifted the balance of separated powers through the intermediary of the administrative state. During the past decade, many scholars and judicial observers expected the Court to embark on a deliberate reform or revival of the separation of powers doctrine, much like what was occurring in the area of federalism. Like separation of powers, federalism is a structural provision in the Constitution. And like separation of powers, federalism relates to governmental relations and is designed to serve primarily as a protection of liberty. But unlike developments with the separation of powers doctrines, and as examined in the following chapter, the Court’s ‘‘federalism revolution’’ has attempted to undo some of the excesses of the constitutional revolution of 1937.

4 the court’s federalism revolution

The revival of federalism has become a defining theme of the Rehnquist Court. Commentators have described the Court’s decisions as sparking a ‘‘federalism revolution.’’ But this so-called revolution comes after a long dormancy. From the late 1930s to the early 1990s, constitutional provisions related to federalism were largely ignored. Under the leadership of the late Chief Justice William Rehnquist, however, and through a wide array of cases employing both the Tenth and Eleventh Amendments, the Court has slowed or even stalled the constitutional drift of power from the states to the federal government that began in the 1930s. This new federalism has attempted to resuscitate the role of the states in the constitutional system, as well as to revive certain federalism doctrines that were abandoned during the New Deal. Although the Rehnquist Court’s revolution involved the revival of numerous constitutional provisions related to federalism, one provision that the Court did not revive or rely upon was the Ninth Amendment. Prior to the New Deal, the Ninth and Tenth Amendments were seen as together limiting the scope of federal powers.1 While the Tenth Amendment confined the federal government only to the powers enumerated in the Constitution, reserving all unenumerated powers to the states, the Ninth Amendment created a rule of construction that limited the interpretation of those enumerated federal powers. In this way, according to Professor Kurt Lash, ‘‘the rule of the Ninth preserved the principle of the Tenth’’ by preventing the undue expansion of enumerated powers. But after the New 1. Kurt T. Lash, James Madison’s Celebrated Report of 1800: The Transformation of the Tenth Amendment, 74, 158 Geo. Wash. L. Rev. 165, 193 (2006).

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Deal, this federalist application of the Ninth Amendment was abandoned. During its federalism revival six decades later, Lash notes, the Rehnquist Court did not employ the Ninth Amendment, which had long since disappeared from the federalism debate, but used only the Tenth Amendment as the constitutional basis for limiting federal power.2

The Values of Federalism The most-often cited value of federalism is that it provides a check on any tyrannical tendencies of the federal government. By granting only limited powers to the national government, as well as by maintaining two levels of competing governments, the framers sought to control the power of the national government. According to Justice Stephen Breyer, a division of authority between the state and federal levels can protect liberty ‘‘by restricting the burdens that government can impose from a distance and by facilitating citizen participation in government that is closer to home.’’3 As Professor Akhil Amar writes, federalism offers a structure of ‘‘overlapping legal remedies for constitutional wrongs.’’4 Although recent history has focused attention on instances where the federal government had to intervene to address state violations of civil rights, there have also been times when the states had to rise up to remedy federal abuses. Prior to Bivens v. Six Unknown Federal Agents, for example, the state law of trespass provided the only remedy for persons whose homes had been illegally searched by federal agents.5 Furthermore, in the early habeas corpus cases, the states provided an avenue through which those who were incarcerated in federal prisons and in violation of their federal constitutional rights could obtain their freedom.6 A second value of federalism relates to the close relationship existing between state governments and their constituencies, the 2. 3. 4. (1987). 5. 6.

Id. at 169. United States v. Morrison, 529 U.S. 598, 655 (2000) (Breyer, J., dissenting). Akhil Reed Amar, Of Sovereignty and Federalism, 96 Yale L. J. 1425, 1504 403 U.S. 388 (1971). Amar, Of Sovereignty and Federalism, 1509.

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assumption being that the smaller the governing unit the more likely it is to be responsive to the needs of the community.7 Obviously, state legislatures are more connected to and aware of localized interests than is Congress. In the framers’ view, republican forms of government were suitable only to small territories, because ‘‘only a small republic could maintain the voluntary attachment of the people.’’8 Small, localized political units are also able to foster a deeper sense of community and increased opportunities for political participation. At the same time, definite boundaries between state and federal authority allow voters to be able to hold the appropriate officials accountable for unpopular actions. A third value of federalism lies in the use of states as laboratories of experimentation.9 This value is reflected in Justice Louis D. Brandeis’s observation that ‘‘one of the happy incidents of the federal system is that a single courageous State may, if its citizens choose, serve as a laboratory and try novel social and economic experiments without risk to the rest of the country.’’10 As Justice Sandra Day O’Connor has observed, ‘‘the fifty states have served as laboratories for the development of new social, economic, and political ideas.’’11 This experimental value stems from the fact that, unlike Congress and the national government, the states are ‘‘neckdeep’’ in the day-to-day work of ‘‘policing streets, educating children, feeding the hungry, sheltering the homeless, and protecting the public health.’’12 And not just state legislatures are capable of this experimentation. State judges ‘‘demonstrate a greater willingness to experiment with legal norms,’’ and because they ‘‘are generally closer to the public’’ any misjudgments they make are ‘‘more 7. Michael McConnell, Federalism: Evaluating the Founders’ Design, 54 U. Chj. L. Rev. 1484, 1493–94 (1987). 8. Forrest McDonald, Novus Ordo Seclorum: The Intellectual Origins of the Constitution (Lawrence: University Press of Kansas, 1985), 285. 9. See Gregory v. Ashcroft, 501 U.S. at 458 (stating that federalism ‘‘allows for more innovation and experimentation in government’’). 10. New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting). 11. FERC v. Mississippi, 456 U.S. 742, 788 (1982) (O’Connor, J., dissenting in part). 12. Aaron Jay Saiger, Constitutional Partnership and the States, 73 Fordham L. Rev. 1439, 1443 (2005).

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readily redressable by the People.’’13 Of course, underlying this social laboratory value, as well as all the other values of federalism, is the right of individuals to move from state to state, and hence to ‘‘vote with their feet’’ on the desirability or wisdom of particular state policies. Because of a federalist system of independent states, those who oppose the policies of one state are free either to move out of that state or not to move there in the first place. With its collection of diverse and independent states, federalism ‘‘promotes competition among governments for citizens and corporations (and their related tax dollars), thereby maximizing choice and utility for everyone and resulting in an aggregate increase in social welfare.’’14 By offering a more decentralized structure of government, a federalist system is more conducive to the diverse needs of a heterogeneous society. Different communities can govern themselves in a way that reflects the uniqueness of their needs and interests. To the extent that local majorities in different states have divergent preferences, a federal system can result in a higher degree of citizen satisfaction than a unitary system can.15 If, for example, a majority in one state prefers a policy of high taxes and high levels of government services, whereas the majority in another state favors low taxes and fewer government services, both majorities can be accommodated by their respective state governments. This ability of federalism to satisfy varying public preferences obviously requires a certain degree of citizen mobility. But ‘‘as transportation costs have fallen, and a national culture makes Americans feel more at home outside the state where they were born, citizens have indeed become more mobile.’’16 A competition between states can also prevent the abuses often associated with monopoly status. Even those Justices who dissent from the recent federalism revolution agree with the need to maintain a healthy political competition. Justice John Paul Stevens, for instance, calls competition the ‘‘central theme’’ of the Supreme Court’s jurisprudence on political governance.17 Furthermore, ac13. Id. at 1458–59. 14. Anuj C. Desai, Filters and Federalism, 7 U. Pa. J. Const. L. 1, 50 (2004). 15. John O. McGinnis and Ilya Somin, Federalism Vs. States’ Rights: A Defense of Judicial Review in a Federal System, 99 Nw. U. L. Rev. 89, 106 (2004). 16. Id. at 109. 17. Timmons, 520 U.S. at 382 (Stevens, J., dissenting).

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cording to Professor Akhil Amar, with a healthy competition among governments for the hearts of the people, each ‘‘can act as a remedial cavalry of sorts, eager to win public honor by riding to the rescue of citizens victimized by another government’s misconduct.’’18 Critics of this notion of interstate competition have argued that competition for industry would cause states to lower environmental standards, ‘‘leading to a destructive ‘race to the bottom,’ preventable only by the federalization of environmental regulation.’’19 Perhaps this would be the expected result if states were concerned exclusively with industrial growth. However, because state residents value a host of other goals, including environmental quality, state governments often seek not just to maximize industrial growth at the expense of all other concerns, but to achieve a satisfactory level of economic growth while also maintaining an acceptable environmental quality. Robert Nagel argues that federalism increases the opportunity for a wide range of entry points for political participation and creates ‘‘exit’’ options for the disaffected.20 It was for this reason, among others, that the founding generation was so committed to federalism. Indeed, federalism concerns were so important to the founders that nearly all the arguments opposing the new constitution involved the threat to state sovereignty.21 Yet because the framers took for granted the sovereign powers of the states, the Constitution is somewhat one-sided in its references to governmental authority. Although it explicitly lists the powers of the federal government, it defines state powers primarily through negative implication, by setting out the limited constraints on those powers.22 18. Akhil Reed Amar, Of Sovereignty and Federalism, 1425, 1428 (1987). 19. Daryl J. Levinson, Empire-Building Government in Constitutional Law, 101 Harv. L. Rev. 915, 946 (2005). 20. Robert F. Nagel, The Implosion of American Federalism (New York: Oxford University Press, 2001), 12. 21. Larry D. Kramer, Putting the Politics Back into the Political Safeguards of Federalism, 100 Colum. L. Rev. 215, 252 (2000). 22. See U.S. Const. art. I, §1, 8; Jay S. Bybee, The Tenth Amendment Among the Shadows: On Reading the Constitution in Plato’s Cave, 23 Harv. J. L. & Pub. Pol’y 551, 555 (2000).

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The Decline of Constitutional Federalism Between 1937 and 1986, only two major federalism decisions came down from the Court: Oregon v. Mitchell,23 ultimately overturned by the Twenty-Sixth Amendment, and National League of Cities v. Usery, which was later overruled. Thus, for a half century, and throughout the terms of the Warren and Burger Courts, federalism was largely a forgotten issue. It ceased to provide any real, enforceable limit on national power. Prior to 1937, however, the Court was far more willing to overrule instances of federal infringement on state autonomy. During the nineteenth century and throughout the early twentieth, the Court adhered to a federalist vision, under which it ‘‘made substantial use of the Tenth Amendment as a limit on congressional power.’’24 A dual sovereignty model of federalism prevailed from 1789 until the New Deal. This dual sovereignty envisioned an equal distribution of power between the state and federal levels of government and, according to some scholars, it constitutes ‘‘the essential federalist feature of the Constitution.’’25 From Reconstruction to the New Deal, courts used both the Ninth and Tenth Amendments as ‘‘twin guardians of state autonomy’’ and as ‘‘barriers against the expansion of federal power.’’26 But after 1937, the Court abandoned this stance and adopted a nationalist approach. In taking this approach, it turned away from constitutional text and history, focusing instead on giving the federal government the power to combat the problems wrought by the Great Depression. From 1937 to roughly the 1990s, the Court continued to pay lip service to the notion of limited national power, yet repeatedly allowed the expansion of federal powers to increasingly erode Tenth Amendment protections. Thus, for the sixty years following the New Deal, the Court was very much on the side of national authority. The only real exception to this rule was the Court’s decision in 23. 400 U.S. 112, (1970). 24. Erwin Chemerinsky, The Federalism Revolution, 31 N. M. L. Rev. 7, 8 (2000). 25. David Walker, The Rebirth of Federalism: Slouching Toward Washington (Chatham, N.J.: Chatham House, 1995), 23. 26. Kurt Lash, The Lost Jurisprudence of the Ninth Amendment, 83 Tex. L. Rev. 597, 601, 613, 602 (2005).

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National League of Cities v. Usery, which in turn proved to be an aberration.27 In 1976 the Burger Court briefly revived the Tenth Amendment. In National League of Cities v. Usery, the Court struck down federal wage and overtime requirements applying to state employees, reasoning that the power to determine wages was an ‘‘undoubted attribute of state sovereignty’’ and a core governmental function ‘‘essential to the separate and independent existence’’ of state sovereignty.28 Writing for the Court, Justice Rehnquist explained that ‘‘there are attributes of sovereignty attaching to every state government which may not be impaired by Congress, not because Congress may lack an affirmative grant of legislative authority to reach the matter, but because the Constitution prohibits it from exercising the authority in that manner.’’29 The Court employed the ‘‘traditional governmental functions’’ test to determine whether the congressional wage and overtime regulations had violated the Tenth Amendment. The difficulty with this test, however, was in defining the specific areas of state activity that were vital for maintaining and protecting state sovereignty. This difficulty contributed to the overruling of National League of Cities by Garcia v. San Antonio Metropolitan Transit Authority.30 In Garcia, the Court effectively abandoned the attempt to shield states from intrusive federal regulation. Even though the federal law at issue in Garcia, which dictated certain wage and hour conditions to the states, was similar to the law in National League of Cities, the Court upheld it. But by rejecting the Tenth Amendment as a safeguard against federal overreaching, the Court essentially eliminated any constitutional defenses against national intrusion into state governmental functions. According to the Court, since the nature and content of any restrictions imposed by the Tenth Amendment were difficult to determine, any limits on the federal government’s power to invade state functions had to come from the political 27. National League of Cities, 426 U.S. at 852, was overruled by Garcia, 469 U.S. at 557. 28. 426 U.S. 833, 835–39, 845 (1976). 29. Id. at 845. 30. 469 U.S. 528 (holding that Congress could subject the states to generally applicable employment regulations enacted pursuant to the Commerce Clause).

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process. Critics, however, saw this decision as abandoning a fundamental constitutional doctrine, as well as relegating states to a ‘‘trivial role’’ in the constitutional system.31 In reaffirming its 1937 retreat from federalism, the Court in Garcia adopted a view of state-federal sovereignty contrary to the view that had prevailed during the constitutional period. The Court stated that the ‘‘sovereignty of the States is limited by the Constitution itself,’’ and that whatever sovereign authority the states possess is ‘‘only to the extent that the Constitution has not divested them of their original powers and transferred those powers to the Federal Government.’’32 But this narrow view of state sovereignty contradicted the views of James Madison. According to Madison, the ‘‘powers delegated by the proposed Constitution to the Federal Government are few and defined,’’ while those retained by the states are ‘‘numerous and indefinite.’’33 Madison further asserted that the ‘‘powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people.’’34 Extending its Garcia ruling, the Court in South Carolina v. Baker held that the Tenth Amendment limits were not substantive and that States ‘‘must find their protection from congressional regulation through the national political process.’’35 Under this politicalsafeguards-of-federalism approach, Congress is seen to be in a better position than the courts to determine the proper boundaries around national power; in this view, Congress is seen as the protector of the role of the states in the federal system. Although the Baker Court acknowledged that extraordinary defects in the political process might actually trigger some Tenth Amendment protections, it failed to explain what might constitute such a defect. The nationalist orientation of the Court during the pre-Rehnquist era could also be seen in its Section 1983 decisions. In 1978, for instance, the Court reversed a previous ruling that a municipal31. 32. 33. 34. 35.

Walker, The Rebirth of Federalism, 187. Garcia, 469 U.S. at 548, 549. The Federalist No. 45 (James Madison) (Jacob Cooke, ed., 1961), 312. Id. 485 U.S. 505, 512 (1988).

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ity could not be sued under Section 1983.36 Later, in Owen v. City of Independence, the Court denied municipalities the use of a good faith defense in Section 1983 suits.37 Furthermore, in the area of municipal antitrust liability, the Burger Court handicapped states and municipalities by imposing on them various types of antitrust liability. Until the 1970s, the Sherman Anti-Trust Act had been applied to private parties and corporations. But in the late 1970s and early 1980s, the Court applied the Act to the public sector, finding various municipalities liable for antitrust violations.38 The pre-Rehnquist Court’s nationalist focus was also apparent in its decisions relating to Congress’s imposition of conditions on the states’ receipt of federal funds. In disregarding federalism concerns about congressional tendencies to dictate to the states through conditions attached to federal funding, the Court upheld, for instance, federal grant conditions that required state government reorganization and that bypassed the states in distributing federal grant funds to local school districts despite a state law banning such a practice.39 This judicial disregard for federalism was occurring during a time when localism was being severely threatened by an array of social and political forces and hence was in greatest need of constitutional protection. Until the 1960s, for instance, political parties had generally served as a decentralizing force, focusing debate and political action at the state and local levels. But the nationalizing forces that have come to bear on the parties since that time have eroded state and local influence in the parties. In addition to these political changes, high rates of mobility and nationwide channels of communication also contributed to the centralization of American society.40 Consequently, contrary to its actual jurisprudence, courts 36. v. New York City Department of Social Sciences, 436 U.S. 658 (1978) (overturning Monroe v. Pape, 365 U.S. 167 [1961]). 37. 445 U.S. 622 (1980). 38. See City of Lafayette v. Louisiana Power and Light Co., 435 U.S. 389 (1978); Community Communications Co. v. City of Boulder, 455 U.S. 40 (1982) (ruling that the city of Boulder’s moratorium on cable television expansion was subject to antitrust scrutiny). 39. Florida Department of Health v. Califano, 441 U.S. 931 (1979); Lawrence County v. Lead-Deadwood School District, 469 U.S. 256 (1985). 40. Robert F. Nagel, The Implosion of American Federalism, 30.

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in the pre-Rehnquist era had even more reason to be aggressive in upholding federalism because of the changed realities of American life.

The Rehnquist Court’s Revival of Federalism The Tenth Amendment Decisions After almost sixty years of dormancy, federalism made a constitutional comeback in the 1990s. The Rehnquist Court’s federalism decisions have been described as the ‘‘New Federalism.’’41 This New Federalism gives constitutional recognition to the fact that for most of American history the states have been the primary providers of the vast array of services offered by the public sector. It also rejects the view that the political process in general, and Congress in particular, can adequately protect the interests and autonomy of state governments. A principal tenet of the new federalism is that it is up to the judiciary to enforce federalism by imposing limits on Congress. In numerous decisions, the Rehnquist Court ‘‘used its judicial review to reinvigorate the doctrine of federalism and restore power to the states.’’42 This stance contrasts with the Warren era, when the Court ‘‘exerted a generally centralizing influence throughout all of the period.’’43 In striking down various federal actions, the Rehnquist Court has ‘‘revived the effort to demarcate proper spheres of authority between the federal and state governments and to provide constitutional heft to federalism after a period where the constitutional boundaries were lowered.’’44 According to The New York 41. Casey Westover, Structural Interpretation and the New Federalism, 88 Marq. L. Rev. 693, 725 (2005). But some commentators describe the federalism decisions of the Rehnquist Court as having a marginal rather than a revolutionary effect on the New Deal scheme, as making an incremental adjustment rather than a frontal assault on the nationalization process brought on by the New Deal. Richard A. Epstein, The Federalism Decisions of Justices Rehnquist and O’Connor, 58 Stan. L. Rev. 1793, 1798 (2006). 42. Daniel J. Hulsebosch, Bringing the People Back In, 80 N.Y.U. L. Rev. 653, 659 (2005). 43. Walker, The Rebirth of Federalism, 10. 44. A. Brooke Overby, Our New Commercial Law Federalism, 76 Temp. L. Rev. 297, 305 (2003).

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Times, ‘‘a hallmark of the Rehnquist Court has been a re-examination of the country’s most basic constitutional arrangements, resulting in decisions that demanded a new respect for the sovereignty of the states and placed corresponding restrictions on the powers of Congress.’’45 Most likely, those decisions define the legacy for which the Rehnquist Court will be most noted. The Rehnquist Court waged its federalism revolution primarily through three different constitutional approaches. It expanded state sovereign immunity under the Eleventh Amendment. It narrowed the scope of Congress’s Commerce Clause powers. And it revived the Tenth Amendment as a limit on congressional power. In a fourth approach, the Court constrained the power of Congress to legislate under Section 5 of the Fourteenth Amendment. In City of Boerne v. Flores, the Court ruled that Congress could not use its Section 5 powers to create new rights that could in turn be used to trump state law.46 Boerne held that the Religious Freedom Restoration Act, enacted by a Congress unhappy with the Supreme Court’s earlier decision in Employment Division v. Smith, which lessened the protections of the Free Exercise Clause of the First Amendment, went beyond the limits of Congress’s Section 5 powers.47 According to Boerne, Congress could not rely on Section 5 to make new rights or to expand the scope of existing rights; rather, it could only enact laws that enforced rights previously recognized by the Court. Furthermore, this enforcement had to be proportionate, or narrowly tailored, to the prevention or remediation of violations of such rights. Thus, as the Boerne Court stated, a congressional law that modifies the meaning of the Free Exercise Clause was not a law that simply enforced that Clause. Prior to Boerne, the Court had never really defined the limitations placed by Section 5 on congressional power. But following Boerne, the Court was much more receptive to Section 5 challenges of federal law. In Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, the Court overturned a federal stat45. Linda Greenhouse, ‘‘The Rehnquist Court and Its Imperiled States’ Rights Legacy,’’ The New York Times (June 12, 2005), WK 3. 46. 521 U.S. 507, 534–36 (1997). 47. Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990)

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ute making states liable to private parties for patent infringement and violations of the Lanham Act.48 In Kimel v. Florida Board of Regents and Board of Trustees of the University of Alabama v. Garrett, the Court prohibited Congress, under the guise of the Fourteenth Amendment, from exposing states to private lawsuits alleging age and disability discrimination under federal law.49 Thus, in both cases, the Court upheld the Boerne rule that Congress could not use Section 5 to expand or create rights that could later be used against the states. In its revival of the Tenth Amendment, the Supreme Court in New York v. United States ruled that federalism principles prohibited Congress from passing a law forcing state legislatures to administer a federal regulatory program.50 At issue were provisions of the Low-Level Radioactive Waste Policy Act (lrwp) requiring states either to adopt a federal regulatory program or to be held financially responsible for damages as owners of the hazardous waste. In striking down this law, the Court held that by failing to provide the states with the choice not to regulate, the law crossed the line between encouragement and coercion, thus violating the Tenth Amendment. Finding that the lrwp was an attempt by Congress to use the states as mere tools of federal regulation, the Court ruled that the Tenth Amendment is violated when Congress commandeers states’ regulatory apparatuses by forcing them to enact or administer a federal regulatory program. In Printz v. United States, the Court extended its ruling in New York by holding that the Tenth Amendment forbade Congress from enforcing certain provisions of the Brady Handgun Violence Prevention Act.51 The Brady Act required state law enforcement personnel to participate in a federal regulatory program by conducting background checks and processing handgun applications before issuing any firearm permits. As it did in New York, the Printz Court ruled that the federal government could not force the states to implement, either by legislation or executive action, federal regulatory programs. According to the Court, the federal government could 48. 49. 50. 51.

527 U.S. 627, 637–48 (1999). 528 U.S. 62 (2000); 531 U.S. 356 (2001). 505 U.S. 144, 188 (1992). 521 U.S. 898 (1997).

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not ‘‘issue directives requiring the States to address particular problems, nor command the States’ officers to administer or enforce a federal regulatory program,’’ since such commands violated the ‘‘constitutional system of dual sovereignty.’’ Thus, in the Court’s view, the Brady Act had essentially conscripted state and local governments to carry out a congressional mandate. From a historical perspective, Justice Antonin Scalia’s decision in Printz viewed the Constitution as containing the core principle of state sovereignty. In laying out a view of state sovereignty much broader than the view given by Justice Harry Blackmun in Garcia, Justice Scalia wrote that although the states had surrendered many of their powers to the new federal government when ratifying the Constitution, they had nonetheless retained a residuary and inviolable sovereignty. According to Justice Scalia, the Constitution embodies a ‘‘dual sovereignty’’ that prohibits the federal government from acting ‘‘upon and through the States.’’

Commerce Power Limitations In two major Commerce Clause cases, in which individuals challenged the exercise of federal power, the Rehnquist Court held that Congress lacked the authority to intrude upon matters of state and local law enforcement.52 In each case, the Court held that Congress could exercise only those powers enumerated in Article I.53 By doing so, the Court narrowed the scope of Congress’s Article I Commerce Clause powers, holding that Congress may regulate only economic activity that has a substantial effect on interstate commerce. Through such rulings, the Court sought to restrain the kind of far-reaching national power that would be incompatible with a dual sovereignty system of federalism. In United States v. Lopez, the Supreme Court for the first time 52. See United States v. Morrison, 529 U.S. 598 (2000); United States v. Lopez, 514 U.S. 549 (1995). 53. Yet while the Court has revived judicial review of the Commerce Clause, it continues to be very permissive in its decisions regarding Congress’s power under the Spending Clause to set regulatory conditions through its funding programs. See South Dakota v. Dole, 483 U.S. 203 (1987); Sabri v. United States, 124 S. Ct. 1941 (2004) (upholding the imposition of various conditions on the granting of federal funds to states).

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since the New Deal nullified a congressional enactment under the Commerce Clause.54 That enactment outlawed the possession of any firearm within 1,000 feet of a school. Striking down this prohibition, the Court held that the possessions of guns near schools was not an activity constituting commerce and hence was not within the scope of the commerce power. In so ruling, the Court restricted the scope of the Commerce Clause to the regulation of those activities having a substantial effect on interstate commerce. It also recognized that some areas of historical state powers, including family law, criminal law enforcement, and education, are beyond Congress’s power under the Commerce Clause. Continuing in the Lopez vein, the Court in United States v. Morrison struck down the civil remedy provision of the Violence Against Women Act.55 The Court ruled that the commerce power can apply only to an economic endeavor, and that gender-motivated violent crimes did not in any way constitute economic activity. According to the Court, the Violence Against Women Act regulated not economic behavior such as commercial transactions, but conduct that has traditionally been left to state law. As Chief Justice Rehnquist wrote, the Constitution mandates a distinction between national activities and local activities. Thus, contrary to Garcia, both the Lopez and Morrison opinions convey a clear recognition of states as independent sovereigns.

State Sovereign Immunity The third focus of the Rehnquist Court regarding the doctrinal development of the new federalism was the expansion of state sovereign immunity, which refers to the ability of state governments to be free of a lawsuit for either money damages or equitable relief. Through its Eleventh Amendment jurisprudence, the Court has in54. Prior to 1937, the Court had struck down an array of congressional Commerce Clause enactments, usually on the grounds that those enactments undermined the police power of the states. See, e.g., Champion v. Ames, 188 U.S. 321 (1903); A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935). But in 1937, the Court reversed course and substantially expanded Congress’s Commerce Clause powers. See, e.g., nlrb v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937). 55. 529 U.S. 598, 617 (2000).

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dicated that state sovereign immunity from private suits is critical to state autonomy.56 In Alden v. Maine, the Court ruled that sovereign immunity prevented Congress from compelling states to defend federal claims in state courts. Thus, the doctrine of sovereign immunity safeguarded Maine from being sued without its consent under the Federal Fair Labor Standards Act in its own state courts. In his majority decision, Justice Anthony Kennedy discussed the need to protect state sovereignty from nonconsensual suits: The federal system established by our Constitution preserves the sovereign status of the States in two ways. First, it reserves to them a substantial portion of the Nation’s primary sovereignty, together with the dignity and essential attributes inhering in that status. . . . Second, even as to matters within the competence of the National Government, the constitutional design secures the founding generation’s rejection of the concept of a central government that would act upon the States in favor of a system in which the State and Federal Governments would exercise concurrent authority over the people—who were, in Hamilton’s words, the only objects of government. Justice Kennedy’s majority opinion relied heavily on the general principle of state sovereignty, which, he argued, pervades the constitutional text—a principle that ‘‘derives not from the Eleventh Amendment but from the structure of the original Constitution itself.’’57 In Kimel v. Florida Board of Regents, the Court continued this expansion of state immunity. Addressing the issue of whether states can be sued by their employees under federal laws prohibiting age discrimination, the Court held that Congress exceeded its powers when it abrogated the states’ immunity from suits brought under 56. See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54, 59 (1998) (rejecting the assertion that Congress, through its Article 1 powers, could subject the states to private federal suits). 57. 527 U.S. 706, 714, 728 (1999)

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the Age Discrimination in Employment Act.58 And in a later case, the Court ruled that Congress again intruded upon state sovereign immunity when it enacted Title I of the Americans with Disabilities Act of 1990.59 The Eleventh Amendment has also been used to immunize states from suits in federal court. In Seminole Tribe v. Florida,60 the Court overruled Pennsylvania v. Union Gas,61 which had previously given Congress broad powers to override the Eleventh Amendment, and substantially restricted the power of Congress to authorize suits against state governments.62 In holding that Congress could not abrogate state sovereign immunity when legislating pursuant to its Article I powers, the Court referred to the Eleventh Amendment as the textual embodiment of the principle of state sovereign immunity. These sovereign immunity decisions reflect the Court’s belief that such immunity is critical to maintaining the states as independently functioning government institutions.63 In a more recent expansion of the sovereign immunity doctrine, the Court held that sovereign immunity also applied to adjudications in federal administrative agencies.64

The Opposition to a Federalism Revival Despite America’s historical experience with federalism, the Court’s constitutional revival of federalism sparked an immediate and intense hostility, as if the Court were somehow contradicting or un58. Kimel v. Florida Board of Regents, 528 U.S. 62, 91 (2000). 59. See Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356, 374 (2001). 60. 517 U.S. 44, 66 (1996). 61. 491 U.S. 1, 7 (1989). 62. 517 U.S. at 65–66. 63. But not all Court decisions on state immunity have gone in favor of the states. See Nevada v. Hibbs, 538 U.S. 721 (2003) (upholding the ability of state employees to sue under the Family and Medical Leave Act); Tennessee v. Lane, 541 U.S. 509 (2004) (upholding the application of the Americans with Disabilities Act to state courthouses and thereby denying the states’ claim of constitutional immunity). 64. See Fed. Mar. Comm’n v. South Carolina, 535 U.S. 743, 751–53 (2003) (using the Alden reasoning to derive sovereign immunity from the general principle of state sovereignty).

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dermining cherished constitutional traditions.65 The New York Times asserted that the Court’s federalism decisions have deprived Congress of the power to act on behalf of the public good.66 Legal scholars have argued that the Court ‘‘has diminished the power of Congress to address national problems in ways that we have not seen since the Taft Court Era.’’67 This criticism, however, is in many ways surprising. The notion of federalism is hardly a radical one. It is a foundation of the American system of government. State governments preceded the national government by nearly a decade and a half, and they succeeded colonial governments that had existed for roughly a century before the adoption of the U.S. Constitution. Moreover, the values and purposes of federalism are so universally accepted as to be almost undebatable. A balanced system of state, local, and national government seems unquestionably preferred over a single, monopolistic, centralized governmental structure. Whereas a national government can address the large-scale concerns of a single nation, the state governments can focus on the concerns of diverse and localized constituencies. In the experience of the constitutional framers, the vibrancy of a democracy could be fueled only at the local level, where public participation in self-government was the most direct, and where government action was the most responsive to public needs. Because state governments are more closely attached to their populace, they can provide various public services more effectively than can the federal government. Recognizing these values and benefits of federalism, the Supreme Court has stated: 65. See Herman Schwartz, ‘‘States’ Rights Rise Again,’’ The Nation (October 9, 2000) [cited April 4, 2007]. Available at http://www.thenation.com/doc/20001009/ schwartz (stating that the Rehnquist Court’s federalism decisions ‘‘have been a fig leaf to cover up more tangible interests like race and money’’ and describing ‘‘how harmful the . . . federalism rulings have been’’); David O’Neil, ‘Federalism and the U.S. Supreme Court: ABA Human Rights Magazine (fall 2002) [cited April 4, 2007]. Available at http://www.abanet.org/irr/hr/fall02/federalism.html; Jack Balkin and Sanford Levinson, Understanding the Constitutional Revolution, 87 Va. L. Rev. 1045 (2001). 66. Linda Greenhouse, ‘‘For a Supreme Court Graybeard,’’ The New York Times (March 16, 2003), A5. 67. Sylvia Law, In the Name of Federalism: The Supreme Court’s Assault on Democracy and Civil Rights, 70 U. Chi. L. Rev. 367, 371 (2002).

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The differing needs and customs of the respective states and even of the respective communities within each state emphasize the principle that familiarity with, and complete understanding of, local characteristics, customs, and standards are foundation stones of successful self-government. Local processes of law are an essential part of any government conducted by the people. No national authority, however benevolent, . . . can be as closely in touch with those who are governed as can the local authorities in the several states and their subdivisions.68 Ironically, the hostility to the Court’s modern federalism revolution is occurring amid a growing cultural frustration with big, centralized government. After half a century of living with a steadily expanding federal bureaucracy, Americans during the Reagan presidency began supporting a shift of power to the states and localities. By the late 1980s, America was experiencing ‘‘considerable dissatisfaction with the performance of the federal government.’’69 This dissatisfaction became so strong that President William Clinton in 1996 acknowledged that the ‘‘era of big government is over.’’70 Indeed, one could well argue that the Rehnquist Court’s federalism revival drew its impetus from a growing public opposition to centralized government and its approaches to social problems. Another paradox surrounding the criticism of the modern Court’s new federalism is that the same political forces condemning the constitutional revival of the federalism doctrine are simultaneously, in separate venues and pertaining to separate issues, enthusiastically embracing the principles of federalism. In 2004, for instance, many political liberals argued that the issue of same-sex marriage should be handled along federalism lines, with each state able to define its own rules, free of any federal dictates such as those 68. Bute v. Illinois, 333 U.S. 640, 650–53 (1948). 69. Cass R. Sunstein, Constitutionalism After the New Deal, 101 Harv. L. Rev. 421–22 (1987) (arguing that the ‘‘post–New Deal increase in presidential power and the creation of a massive bureaucracy concentrated in the executive branch have augmented factional power and self-interested representation, often leading to regulation that fails to serve the interests of the public at large’’). 70. President William Jefferson Clinton, State of the Union Address, January 23, 1996. [Cited April 4, 2007]. Available at http://www.gpoaccess.gov/son/index.html.

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contained in the Federal Marriage Amendment supported by a Republican Congress.71 Similarly, in the Terri Schiavo case, many liberals argued that the guidelines of federalism should be followed: namely, that Congress and the federal courts should not intrude into the judgments made by state courts regarding the maintenance of Ms. Schiavo’s life support.72 And frustrated by a lack of federal action in the area of health care, Massachusetts enacted legislation providing health care for virtually all its citizens, and Florida and Michigan adopted a program requiring drug companies doing business in their states to offer discounts on drugs. Federalism is such a bedrock of the American system that it can hardly be denied or ignored. It is a structural feature of the constitutional scheme that reflects the political organization of American democracy. Nonetheless, federalism continues to inspire a virulent opposition among adherents of certain political or ideological orientations. The reasons for this opposition stem largely from federalism’s negative association with certain unpopular historical forces and events.

The Inaccurate Association of Federalism with Unpopular Politics The States’ Rights Arguments Preceding the Civil War Even though federalism provides a foundational pillar of the Constitution, it is often confused with a doctrine or movement known as ‘‘states’ rights.’’ The states’ rights doctrine became prominent during the Civil War period, when it distorted the concept of state sovereignty into a constitutional defense of slavery. The Taney Court (1835–63) is often associated with a defense of state rights. In contrast to the nationalism of the Marshall Court, the Taney Court emphasized the principles of dual federalism, viewing the states and their reserved powers as constitutional limitations on federal au71. H. J. Res. 56, 108th Cong. (1st Sess); S. J. Res. 40, 108th Cong. (2004). 72. The ‘‘Palm Sunday Compromise’’ or the ‘‘Act for the Relief of the Parents of Theresa Marie Schiavo’’ is the colloquial name for a congressional law passed on March 21, 2005. See Pub. L. 109–3, 119 Stat. 15.

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thority.73 Under this system of dual sovereignty, certain subjects lay exclusively within state jurisdiction, outside the reach of the national government. This notion of state sovereignty was seized by the South in an attempt to seal off the institution of slavery from federal regulation. As articulated by John C. Calhoun, the states’ rights theory ‘‘sought to increase state sovereignty and power at the expense of the federal government.’’74 In the political arguments leading up to the Civil War, certain constitutional provisions relating to federalism (e.g., the Ninth and Tenth Amendments) were used to support a state’s right to secede from the Union.75 Thus, because of its connection with the preservation of state autonomy, federalism became associated with the defense of slavery. In Anderson v. Poindexter, for instance, the Chief Justice of the Ohio Supreme Court stated that the Ninth Amendment guarded a state’s right to maintain slavery.76 During the Civil War era, states’ rights advocates conducted a vehement debate about fundamental constitutional principles. The debate centered on the question of whether sovereignty resided in the people of the United States as a whole or in the people of each state.77 To states’ rights advocates, the Constitution ‘‘was a compact among sovereign states, each with the right to interpose or nullify an act of Congress, and each with the ultimate right to secede legally from the Union.’’78 But under the nationalist view, sovereignty rested in the people of the United States as a whole.

The Rise of Nationalism During the Progressive Era Whereas the states’ rights doctrine was linked with the institution of slavery during the nineteenth century, it later was used to oppose 73. Walker, The Rebirth of Federalism, 69. The Marshall Court gave expansive interpretations of national power in cases like McCullough v. Maryland, 17 U.S. 316 (1819), and Gibbons v. Ogden, 22 U.S. 1 (1824). But the Taney Court restricted this power with its decisions in Charles River Bridge, 36 U.S. 420 (1837), and Luther v. Borden, 48 U.S. 1 (1849). 74. William H. Pryor, Jr., Madison’s Double Security: In Defense of Federalism, the Separation of Powers, and the Rehnquist Court, 53 Ala. L. Rev. 1167, 1169 (2002). 75. Kurt T. Lash, The Lost Jurisprudence of the Ninth Amendment, 83 Tex. L. Rev. 597, 648 (2005). And this notion of states’ rights became linked with the notion of federalism. Id. at 649. 76. 6 Ohio St. 622, 631, 686 (1856) (Bartley, C. J., concurring). 77. Akhil Reed Amar, Of Sovereignty and Federalism, 1425, 1429 (1987). 78. Walker, The Rebirth of Federalism, 76.

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certain social reforms during the Progressive era of the early twentieth century. To combat the expansive exercise of national power being exerted for the first time by Congress, federalism challenges were brought against congressional attempts to regulate prostitution, drugs, unfair trade practices, and bribery.79 States also used the Ninth and Tenth Amendments to prevent the federal preemption of state law and to ensure that areas traditionally regulated by the states continued to be so.80 Contrary to the traditional federalism of dual sovereignty, the Progressives favored an increased centralization of national governmental power. To this end, Congress expanded its use of the Commerce Clause, addressing areas that had formerly been the exclusive province of state governments, including the regulation of such public morals issues as lottery tickets.81 In fact, the establishment of the Interstate Commerce Commission in 1887 was a prelude to the modern administrative state that exploded during the New Deal. The Sixteenth and Seventeenth Amendments, enacted as part of the Progressive agenda, also contributed to the rise of nationalism.82 The Sixteenth Amendment, authorizing the income tax, made the growth of centralized government possible by supplying the funding for it. Meanwhile, the Seventeenth Amendment eroded state political power by removing the election of U.S. senators from the hands of state legislators. The Progressive movement further undercut state autonomy by attacking political patronage practices used by local party organizations. 79. See, e.g., United States v. Ferger, 256 F. 388, 390–91 (S. d. Ohio 1918) (stating that the ‘‘states have not surrendered, and therefore retain, their power to enact laws to prevent and punish such acts as these defendants are charged with, and have not delegated to the Congress the power to pass laws to prevent and punish acts, however immoral, which have no relation whatever to the subjects-matter included within any of the powers delegated’’). See also Hoke v. United States, 227 U.S. 308, 319–20 (1913); United States v. Charter, 227 F. 331, 332 (N. D. Ohio 1915); T .C. Hurst & Son v. FTC, 268 F. 874, 875–86 (E. D. Va. 1920). 80. See, e.g., In re Estate of Hansen, 155 Misc. 712 (N.Y. Sup. Ct. 1935) (stating that federal treaties should be construed in conformance with the Ninth and Tenth Amendments so as to preserve state authority to appoint legal representatives for the minor children of foreign nationals). 81. Robert Pushaw, Jr., Bridging the Enforcement Gap in Constitutional Law: A Critique of the Supreme Court’s Theory That Self-Restraint Promotes Federalism, 46 Wm. & Mary L. Rev. 1289, 1325 (2004). 82. Steven Calabresi, The Libertarian-Lite Constitutional Order and the Rehnquist Court, 93 Geo. L. J. 1023, 1035 (2005).

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Although the federalism doctrine resisted the shift of power from the states to the federal government during the Progressive era, this resistance was often cast as an opposition to popular political reforms—an opposition that would, in turn, be used to undermine the cause of federalism. During the New Deal, this association of federalism with antireform would intensify. A federalist support of state autonomy and authority would be characterized not as a defense of constitutional principles, but as a kneejerk reaction to the same kind of social reforms attempted during the Progressive era.

The Portrayal of Federalism as Antirelief and Antireform The New Deal produced a massive shift in the relationship between the states and the national government. Coinciding with this shift was a change in attitude about the values of federalism. Reformers no longer trusted the states to solve social and economic problems. Competition among states was seen as producing paralysis rather than experimentation. But even if experimentation did occur, it was not valued, since what was desired was a uniform national policy. Thus, the idea of vertical checks and balances among competing local and federal spheres seemed ‘‘inconsistent with the need for active governmental intervention to counteract the Depression.’’83 Given these perceived shortcomings of state governments, a dramatic expansion in federal activity and regulation seemed both necessary and natural. New Deal reformers ‘‘willingly abandoned the belief in self-determination through local government and looked instead to national institutions, and in particular to regulatory agencies and to the presidency, to fulfill democratic aspirations.’’84 The advocates of federalism—for example, the pre-1937 Court— were seen as indifferent to the human suffering of the Great Depression and were disparaged as hostile reactionaries to any federal relief or regulation. In the wake of the New Deal, there remained no consistent constitutional doctrine that could be used by the courts to limit the 83. Cass Sunstein, ‘‘Constitutionalism After the New Deal,’’ 421, 504–5 (1987). 84. Id. at 504.

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scope of the federal government. Under the new judicial interpretation of the Commerce Clause, the national government was now empowered to regulate activities that were often neither interstate nor commerce. Moreover, during the half century following the 1930s, the courts repeatedly overturned state laws that infringed on the powers of the federal government. However, as the courts continued to support the increasing nationalization of government authority, critics slowly started becoming concerned that the ‘‘pendulum of dual sovereignty had swung too far toward concentration of power at the national level.’’85

States Rights and the Desegregation Movement Opposition to the civil rights movement of the 1960s and to President Lyndon B. Johnson’s Great Society programs further reinforced the negative states’ rights image of federalism that had taken root during the 1930s. Like President Franklin Roosevelt’s New Deal agenda, President Johnson’s Great Society programs turned to the national government to solve the kind of economic and societal problems that had traditionally been the province of the states. The Great Society, like the New Deal, pursued social and political reform through the central government, rather than relying on each state to come up with its own solutions. Consequently, under the increasingly centralized regulatory era of the 1960s, states became the objects of federal regulations, rather than independent partners in a system of dual sovereignty. Coinciding with the expansion of congressional authority, the judiciary during the 1960s was also consolidating its power at the national level. Under the Warren Court, national judicial power was exercised in unprecedented ways. In its crusade against racial discrimination, for instance, the Court often ended up ordering state and local governments to take certain affirmative actions, rather than simply overturning a law or practice held to be unconstitutional. During the Warren era, the Court ‘‘embraced virtually 85. Robert R. Gasaway, The Problem of Tort Reform: Federalism and the Regulation of Lawyers, 25 Harv. J. L. & Pub. Pol’y 953, 955 (2002).

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unlimited federal power’’ and ‘‘expanded judicial review to dizzying heights.’’86 In general, the Warren Court readily dismissed the doctrine of federalism in any case in which individual rights were at issue. Opposition to the Court’s jurisprudence came from basically two different camps. The first involved those who opposed the Court’s rejection of the federalism doctrine as a structural constraint on Congress, while the second involved those who disagreed with the Court’s rulings on particular substantive issues like racial discrimination. However, because such substantive issues attracted intense and wide-ranging public attention, the states’ rights theories put forth by southern segregationists not only drowned out the federalism arguments, but effectively lumped together the federalism camp with the segregationist camp. According to one observer, the Southern segregationists’ ‘‘devotion to states’ rights’’ and their ‘‘rearguard action against civil rights tarred federalism so thoroughly that it can be difficult for us today to think of states as agents of, rather than obstacles to, realizing political equality and fairness.’’87 During the 1960s, the southern politicians opposing civil rights and desegregation were naturally linked with the states’ rights legacy of John C. Calhoun. This legacy had resurfaced in the wake of Brown v. Board of Education, when southern segregationists used the states’ rights argument to oppose federal integration orders.88 But Calhoun’s states’ rights theory, contrary to popular impression, did not at all reflect the nature of federalism, since it basically contradicted the Supremacy Clause as well as the very notion of dual sovereignty.89 Similarly, to portray the Rehnquist Court’s revival of federalism as a mere resurrection of the states’ rights view is to distort dramatically the nature of each.90 86. Pushaw, Bridging the Enforcement Gap in Constitutional Law, 1326. 87. Aaron Saiger, Constitutional Partnership and the States, 73 Fordham L. Rev. 1439, 1445 (2005). 88. 347 U.S. 483 (1954). 89. Jack Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (New York: Knopf, 1996), 171–77. 90. William H. Pryor, Jr., Madison’s Double Security: In Defense of Federalism, the Separation of Powers, and the Rehnquist Court, 53 Ala. L. Rev. 1167, 1172 (2002).

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The Modern Federalism Doctrine The modern Court’s federalism doctrine differs sharply from the states’ rights views of the nineteenth century. Even though critics often depict the federalism decisions of the Rehnquist Court as a manifestation of states’ rights, such depictions are a distortion of those decisions. For instance, the states’ rights advocates of the nineteenth century did not recognize the authority of the Supremacy Clause or the legitimacy of judicial review, both of which have been strongly upheld by the Rehnquist Court.91 In addition, while the Rehnquist Court’s federalism revival has focused on protecting states from federal domination, it has not significantly restricted the power of the federal government. Moreover, the Rehnquist Court has continually upheld findings of civil rights violations by state governments.92 The Court has repeatedly ruled against state laws restricting the freedom of religion,93 the freedoms of speech and association,94 and voting rights.95 The Court has also strengthened the ‘‘right to travel,’’ which, despite curtailing state power, obviously supports the cause of federalism by preventing state governments from restricting the ability of their residents to leave the state.96 Contrary to the states’ rights theory, federalism is not simply a way of shifting all power to the states. Indeed, the Constitution imposes significant limitations on state power: states are forbidden to pass bills of attainder or ex post facto laws; states cannot coin money or emit bills of credit; states are prohibited from denying the privileges and immunities of out-of-staters; and states cannot impair the obligation of contract. Federalism is not a system wherein the states hold all the power, just as it is not one where the federal government holds all the power. 91. Id. at 1171–72. 92. Pryor, Madison’s Double Security, 1176. 93. See Rosenberger v. Rector, 515 U.S. 819 (1995); Good News Club v. Milford Cent. Sch., 533 U.S. 98 (2001). 94. See Boy Scouts of America v. Dale, 530 U.S. 640 (2000). 95. See Miller v. Johnson, 515 U.S. 900 (1995); Buckley v. Am. Constl. Law Found. Inc., 525 U.S. 182 (1999). 96. See Saenz v. Roe, 526 U.S. 489 (1999) (overturning time-based state restrictions on welfare payments to new residents).

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Under the U.S. Constitution, as Professor Akhil Amar notes, the ultimate sovereignty resides in the people; by creating a limited government, the Constitution passes power to the federal government, not sovereignty.97 Under a federalist scheme, according to Amar, governmental power in general is parceled out to several different types of governmental agents: national agents representing the whole nation (the federal government), and local agents representing parts of the whole (state governments). The Tenth Amendment expresses the theory of sovereignty contained within the Constitution and reflects the different relationships between the people and their state and national governmental agents. According to the Tenth Amendment, the national government cannot assert powers not delegated to it, while the states cannot exercise those powers prohibited by the Constitution or delegated to the Congress. Critics of the modern Court’s federalism doctrines often mischaracterize the meaning of sovereignty, just as states’ rights advocates did during the Civil War. These critics rely on the New Deal for support, but, as Amar argues, the nationalism of the New Deal and the 1960s’ civil rights movement mistakenly focused on the supremacy of the national government, rather than on the sovereignty of the American people. Similarly, this nationalist perspective, which criticizes the Rehnquist Court’s ‘‘New Federalism,’’ overlooks the many ways in which states are empowered by the Constitution to check the federal government.98

The Political Turnaround on States’ Rights The most frequent critics of the Rehnquist Court’s federalism revival were political liberals. By equating federalism with the states’ rights views of segregationists like Governor George Wallace, these critics have been able to disparage the value and legitimacy of federalism. At a 2003 American Bar Association convention, one speaker 97. Akhil Reed Amar, Of Sovereignty and Federalism, 1425, 1435, 1437 (1987). 98. Id. at 1492–93 (arguing that the limited sovereignty of state and federal government promotes the ultimate sovereignty of the people).

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warned about the Court’s embrace of federalism, arguing that ‘‘states’ rights’’ has a ‘‘disreputable past and a dangerous future.’’99 However, a states’ rights theory not only misrepresents the nature of federalism; it ignores the present realities underlying the American political system. As demonstrated by the 2004 presidential election, there are substantial contrasts between the different states and regions of the nation. The differences between the so-called red and blue states have been well documented, particularly with respect to their attitudes toward the public role of religion, environmental policies, and immigration laws. Consequently, the more autonomy each state possesses, the more it can respond to the diverse needs and interests of its residents. Recognizing this reality, many political liberals, though steeped in the nationalism of the New Deal and Great Society, have begun pursuing a federalism strategy with respect to a number of policy and legal issues. In 2006, a liberal-sponsored bill was passed in California that would make it the first state to impose limits on the emissions of greenhouse gases. Several other states, including California, have instituted their own stem cell research programs. Indeed, with the White House and Congress controlled by Republicans, liberals have discovered federalism to be a powerful tool in opposing federal laws with which they disagree. The opposition to President Bush’s No Child Left Behind education bill has focused in large part on federalism concerns,100 as has liberal opposition to federal attempts to prohibit states from permitting assisted suicide or the medical use of marijuana.101 The traditionally more liberal members of the Court also waved the flag of federalism in their objection to the decision in Bush v. Gore.102 But 99. Jacob Sullum, ‘‘Will the Supreme Court Save Federalism from the Conservatives?’’ [cited April 4, 2007]. Available at http://www.reason.com/news/snow/ 135968.html (arguing that ‘‘tying federalism to racism is a familiar tactic of the left’’). 100. See Sam Dillon, ‘‘President’s Initiative to Shake Up Education Is Facing Protests in Many State Capitols,’’ The New York Times (March 8, 2004), p. 12 (stating that much Democratic criticism of the Act focuses on its alleged interference with state authority on the subject of education). 101. See Nelson Lund, ‘‘Why Ashcroft Is Wrong on Assisted Suicide,’’ Commentary 50 (2002): 113. 102. 531 U.S. 98 (2000).

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perhaps the most dramatic liberal embrace of federalism principles has occurred in connection with the political battle over the legal recognition of same-sex marriage.103 Unable to pass any national legislation supporting their cause, gay-rights organizations have turned to the states. They obtained a ruling from the Massachusetts Supreme Judicial Court declaring a state constitutional right to same-sex marriage, and in San Francisco the mayor ordered city officials to perform gay weddings.104 In addition, gay-rights activists convinced the Vermont legislature to enact a civil-unions law.105 On the other side of the issue, however, on November 2, 2004, eleven states passed constitutional referendums banning same-sex marriage. But as one liberal gay-rights activist argued, ‘‘the best chance of averting a culture war is to localize the issue by leaving it to the states, letting them go their own way at their own speed.’’106 According to one supporter of gay marriage, the ‘‘whole point of federalism is that different states can have different policies on matters of burning controversy—and that this is OK.’’107 Thus, despite their general criticism of the Court’s federalism revival, liberals support state autonomy when it involves issues on which they cannot prevail at the national level. Another instance of liberal embrace of federalism principles occurred in connection with the Terri Schiavo controversy. While the Republican congressional leadership sought to obtain federal judicial or congressional reversal of a state court’s order that Ms. Schiavo’s feeding tube be removed, many liberal Democrats argued that 103. See Steve Chapman, ‘‘Losing Their Faith in Federalism: As the Gay Marriage Debate Shows, Conservatives Are No Longer Champions of Federalism,’’ Newark Star-Ledger (July 26, 2004), p. 15. 104. Goodridge v. Department of Public Health, 798 N. E. 2d 941 (Mass. 2003). In February 2004, San Francisco Mayor Gavin Newsom directed the county clerk to issue marriage licenses to same-sex couples. Joanna Grossman, ‘‘San Francisco Takes Center Stage by Permitting Gay Couples to Marry’’ (February 24, 2004) [cited April 4, 2007]. Available at http://writ.news.findlaw.com/scripts/printer_friendly.pl?page⳱/ grossman/20 040224.html. 105. An Act Relating to Civil Unions, 15 VSA §1201 et seq. (approved April 26, 2000). In addition, California law recognizes domestic partnerships between same-sex couples. Cal. Fam. Code §297–297.5. 106. Jonathan Rauch, ‘‘Saying No to I Do’’ The Wall Street Journal (December 27, 2004). 107. Franklin Foer, ‘‘The Joy of Federalism,’’ The New York Times Book Review (March 6, 2005), p. 12.

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the matter was one of state jurisdiction and that the federal government should not intervene. And when Congress passed legislation requiring the federal courts to take a fresh look at the case, many liberals cried a violation of federalism. But political liberals are not the only ones who show an inconsistency on the issue of federalism. In Gonzales v. Raich, despite the dissent of Justice Sandra Day O’Connor, which argued for the need to protect historic spheres of state sovereignty from federal encroachment, the Supreme Court reversed the Ninth Circuit’s ruling that Congress’s commerce powers did not extend to regulating the medical use of marijuana in states that allow it.108 Thus, the Court sustained the power of the federal government to regulate marijuana grown at an individual’s home for medical use. This ruling was in line with the war-on-drugs position taken by the Bush administration, which sought to override state authority on the issue of legalizing the medical use of marijuana, but it also contradicted President George W. Bush’s frequent advocacy of federalism. Thus, in Gonzales, the administration sacrificed federalism principles for a specific political issue (its antidrug campaign) and in doing so favored national over state regulation. In a reflection of inconsistency by the Supreme Court itself, the Raich opinion was followed in 2006 by an opposite result in Gonzales v. Oregon, which upheld Oregon’s assisted-suicide law against a contrary federal regulation. The case involved the federal government’s attempt to use the Controlled Substances Act to invalidate an Oregon law that has allowed state residents to kill themselves with a physician-assisted barbiturate cocktail. This was the same federal law that was broad enough to overrule the state law in Raich. Noting the inconsistency in the Court’s treatment of the two cases, Justice Clarence Thomas in dissent suggested that the Court was practicing a results-oriented jurisprudence, rather than applying a consistent federalism doctrine. Federalism is a structural feature of the Constitution; it does not dictate the outcomes of substantive issues. Consequently, an adherence to federalism does not necessarily produce ‘‘liberal’’ or ‘‘conservative’’ outcomes on certain issues. It simply empowers 108. 125 S. Ct. 2195 (2005).

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states to respond effectively to their residents’ needs and desires, whatever those may be. Thus, federalism is neutral with respect to specific substantive issues. As criticism of the Court’s recent federalism decisions shows, federalism can evoke some rather heated opposition—an opposition that seems to defy both history and constitutional theory. Throughout the nineteenth century, for instance, the states were the primary arena for dealing with a host of policy issues, including education, criminal justice, and the regulation of public utilities. States and localities provided political cohesion, with state and local parties supplying the foundation of the nation’s party system. Yet after the New Deal, the degree of state policy and regulatory authority was significantly narrowed. State governments during the mid- to later part of the twentieth century came to be treated as little more than ‘‘convenient districts for the administration of the federal government’s policies, much like the German model.’’109 Beginning in the 1990s, the Court embarked upon a campaign to revive the constitutional doctrine of federalism, to try to correct the federal-state imbalance that had been intensifying since the New Deal. The degree to which the Court has succeeded in this attempt is perhaps evidenced by the wealth of scholarly and journalistic commentary on this federalism revolution. Indeed, it seems unquestioned that the Court has in fact been able to put state authority and autonomy on a higher footing, commanding a higher level of respect. But this success—the shifting of power back to the states—reflects only one aspect of federalism. The other aspect— the notion of federalism as a structural protection of liberty—has been essentially ignored. Although a complete revival of federalism should also reverberate in the area of individual liberty, the modern Court’s federalism revolution has failed as of yet to do so. Nor has this revolution been extended to the judiciary; it has remained confined to Congress.

109. Pryor, Madison’s Double Security, 1172–73.

5 a one-sided federalism revolution: ignoring the liberty side of federalism

Just as a frustration with the ineffectual response of the states to the Great Depression caused regulators and constitutional lawyers to favor a dramatic expansion of the national government during the 1930s, a frustration with centralized government and its rigid bureaucracies inspired the recent federalism revival and its strengthening of state and local governments. But in addition to this size-of-government concern, there is another side of federalism—the individual liberty side. In the view of the constitutional framers, a vibrant federalism would help ensure individual liberty by limiting and monitoring the power of the federal government to infringe on the liberties of its citizens. Coinciding with the decline of federalism throughout much of the later part of the twentieth century was an intensified judicial review of individual-rights cases, as if the Court was making up for its nonenforcement of the Constitution’s structural provisions designed to protect individual liberty. These structural provisions were intended by the framers to provide a more all-encompassing protection of individual liberty than did the Bill of Rights. However, because of the constitutional compromise of the 1930s, the Court abandoned these structural protections and instead focused its liberty-preserving sights on selected substantive individual rights. History indicates that the Court elevated its scrutiny of individual rights, as well as its creation of new rights, only after it downgraded its scrutiny of structural issues like federalism. Whether this is a causal relationship or simply a coincidental one is perhaps impossible to prove. But the fact that the increased judicial scrutiny of individual rights came on the heels of the Court’s surrender on

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structural provisions is a fact beyond dispute. Therefore, it is logical to expect that the reverse should happen: that after heightening its review of federalism doctrines, the Court should diminish its scrutiny of substantive individual rights. By taking such an approach, the Court could reconnect its jurisprudence with the structural ways in which the Constitution protects liberty as a whole. In effect, this would form the second half of a federalism revolution—a stepping back from substantive individual rights as the only protection of individual liberty. However, this has not yet occurred. Although the Court has strengthened the constitutional role and authority of the states, it has not carried the revolution over into the area of individual liberty. Instead of increasing its reliance on the structural provisions of the Constitution to protect liberty, the Court is still concentrating almost exclusively on the judicial enforcement of substantive individual rights.

The Constitutional Compromise As a result of the Court’s acceptance of the New Deal, a constitutional compromise or settlement was reached. In order to sustain New Deal legislation that gave sweeping powers to the federal government, judicial review of federalism and separation of powers issues more or less ended. Congress was given great deference to enact the kind of legislation that would have previously been judged unconstitutional. However, this deference to Congress and the abandonment of the Constitution’s structural provisions, besides allowing the New Deal legislation to pass, also undercut a fundamental requisite of individual liberty. To compensate for this abandonment, the Court either made or acquiesced in a compromise: although it would retreat from reviewing federalism issues, it would intensify its review of individual-rights issues. Larry Kramer calls this the New Deal ‘‘settlement,’’ in which the Court set about to enforce rigorously a selective set of substantive individual rights while deferring to Congress in structural matters, such as federalism and separation of powers.1 Judicial passivity in one area would 1. Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (New York: Oxford University Press, 2004), 219–20.

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be offset by activism in another.2 Thus, a deferential posture in connection with federalism and separation of powers coincided with a new judicial assertiveness in civil liberties cases. As early as 1937, the Court articulated a ‘‘preferred-freedoms’’ approach calling for heightened constitutional protection of individual rights ‘‘so rooted in the traditions and conscience of our people as to be ranked as fundamental.’’3 A year later, in footnote 4 to his opinion in United States v. Carolene Products Co., Justice Harlan Fiske Stone argued that the Court should protect the personal rights outlined in the Bill of Rights more zealously than it protected property or economic rights.4 This approach, creating a higher protection of individual rights than of any other constitutional provisions, laid the groundwork for the later construction of the right to privacy. This heightened protection of individual rights effectively provided a substitute for judicial review of structural issues and led to a gradual incorporation of the Bill of Rights guarantees into the due process and equal protection clauses of the Fourteenth Amendment, thereby generating a new version of substantive due process in the civil liberties area.5 The preferred status given to individual rights over structural matters, however, is not accorded to individual property rights. The courts seem concerned with individual rights only when they arise within the context of an alleged discrimination toward some physical human trait—for example, race—or some type of personal or intimate activity—for instance, sexual activity. As a result, courts have declined to restrain governmental attempts to freeze or eliminate private property rights through the process of eminent domain. Immigration and naturalization cases illustrate the preferred position given to the review of individual-rights issues. Normally, the Court grants deference to Congress on immigration and naturaliza2. David B. Walker, The Rebirth of Federalism (Chatham, N.J.: Chatham House, 1995), 97. 3. Palko v. Connecticut, 302 U.S. 319 (1937). 4. United States v. Carolene Products Co., 304 U.S. 144, 152–53 n.4 (1938) (rejecting a due process challenge to federal regulations of interstate shipments of skimmed milk). 5. Walker, The Rebirth of Federalism, 96.

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tion matters, which often fall within the field of foreign affairs, but an exception is made in cases involving individuals asserting various types of due process challenges to Immigration and Naturalization Services orders.6 In such cases, the courts tend to ignore separation of powers issues and rule in favor of specific individual rights. The rights revolution waged by the Warren Court solidified the constitutional transformation in the way courts protect liberty: from a reliance on the structural provisions of the Constitution to the judicial enforcement of substantive individual rights. But this transformation essentially turned majority rule and individual liberty into antagonists. It essentially made the protection of individual rights the most important goal of constitutional law. Lost was the belief that a limited government of checks and balances could provide a lasting and supportive environment for individual liberty; lost was the framers’ belief that the Constitution’s power-granting structural provisions were at least as important as its rights-bearing provisions in safeguarding individual liberty.7 Instead, the Court focused almost exclusively on protecting specific, substantive rights, carving them out of and immunizing them from the political process. In the legal culture of the late twentieth century, judicial review by an undemocratic court came to be seen as the only way to protect civil liberties.8 An expansive interpretation of the Bill of Rights is particularly evident in the legal academy. Indeed, substantive individual rights appear to be the only place where the legal academy favors limitations on government.9 But it was only after the New Deal and the judicial activism of the Warren Court that America came to rely so heavily on the judiciary for the protection of individual rights.10 Only then did the protection of liberty come to be 6. See generally Melissa A. Flynn, Separation of Powers: Permissive Judicial Review or Invasion of Congressional Power? 54 Fla. L. Rev. 989 (2002). 7. Bradford Clark, Unitary Judicial Review, 72 Geo. Wash. L. Rev. 319, 347 (2003). 8. Daniel J. Hulsebosch, Bringing the People Back In, 80 N.Y.U. L. Rev. 653, 658 (2005). 9. Saikrishna B. Prakash, Branches Behaving Badly: The Predictable and Often Desirable Consequences of the Separation of Powers, 12 Cornell J. L. & Pub. Pol’y 543, 546 (2003). 10. Hulsebosch, Bringing the People Back In, at 660.

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seen as requiring judicial supremacy and exclusivity: ‘‘Only during the past two generations have lawyers and judges succeeded in placing judicial review at the center’’ of the protection of individual liberty.11 Consequently, the Court’s primary function became the defense of individual rights. Of course, during the 1960s and 1970s, there was some validity to the belief that only a strong and activist judiciary could now protect individual liberty. After all, the scope of the federal government’s authority had grown to the point that there were relatively few constraints on its power. This was particularly evident during the McCarthy era of the 1950s. After Senator Joseph McCarthy had accused hundreds of government employees of being Communists, after the Congress had passed the McCarran Act and the Communist Control Act of 1954, and after the House Un-American Activities Committee had used its investigative powers to ruin the lives of suspected Communists, the Court finally interceded on behalf of individual liberty. In the late 1950s, it issued two important decisions limiting federal infringement on individual freedoms. In Yates v. United States, the Court imposed standards that made Smith Act convictions of Communists more difficult to obtain.12 And in Watkins v. United States, the Court, in reversing a contempt conviction resulting from a hearing before the House Un-American Activities Committee, held that the investigatory powers of Congress were not unlimited.13 But if congressional power had not reached the point of being nearly ‘‘unlimited,’’ individual liberty would not have been as threatened as it was during the McCarthy era, and the Court would not have been the only institution willing or able to defend liberty. It has not just been in the national security area that the post– New Deal government has come to exercise broad powers, necessitating judicial intervention to protect individual rights. The courts have crafted comprehensive Fourth Amendment doctrines to respond to an increased number of government agencies capable of conducting suspicionless searches.14 Such doctrines were unneces11. Id. at 662. 12. 354 U.S. 298. 13. 354 U.S. 178. 14. See Fabio Accila, Jr., Special Needs and Special Deference, 56 Admin. L. Rev. 1223, 1240 (2004).

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sary in the pre–New Deal era, when the Court enforced substantive limits on governmental regulatory power, in part because there were fewer regulatory agencies in existence then.15 For instance, when the Interstate Commerce Commission was established as an exercise of expanded federal powers, it was the first federal regulatory agency given broad authority to police the detailed operations of a significant sector of the American economy.16 This new agency, in turn, increased the occasions on which an agent of the federal government could search private premises. The bifurcated pattern of judicial review that resulted from the New Deal ‘‘settlement’’ was revealed in a 1978 study conducted by Professor Arthur Hellman.17 Hellman found that, during the six terms from 1971 through 1976, 43 percent of the Supreme Court’s cases involved the principal issue of individual rights.18 Compared with the 383 decisions involving individual rights during this period, the Court handed down only 8 decisions in which the principal issue was either a question of federalism or of whether Congress had exceeded its constitutionally delegated powers.19 As Mary Ann Glendon argues, prior to the 1950s the principal focus of constitutional law was not on personal liberty, but on the division of authority between the states and the federal government and the allocation of powers among the branches of the national government.20 A half century ago, the Court saw far fewer cases involving individual-rights claims; today, however, those kinds of cases make up the bulk of the Court’s constitutional workload.21 This skewed focus that greatly favors individual-rights cases over federalism or separation of powers cases is further reflected in the Court’s handling of deportation orders. Even though Congress has 15. Special Needs and Special Deference, 1241. 16. Id. 17. Arthur Hellman, The Business of the Supreme Court Under the Judiciary Act of 1925: The Plenary Docket in the 1970s, 91 Harv. L. Rev. 1711 (1978). 18. Id. at 1741. The number of individual-rights cases was nearly double the number the Court had heard during the 1959–64 period. Id. at 1750. 19. Id. at 1761. 20. Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse (New York: Free Press, 1991), 4 (arguing that the traditional theory was that individual freedom was protected mainly through these structural features of our political regime). 21. Id., 5, 163.

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exclusive power to legislate in the area of immigration and naturalization,22 the Court has intervened in immigration matters that affect or involve issues of individual rights. Rather than showing deference to Congress and to separation of powers concerns, the Court has actively reviewed and scrutinized congressional laws dealing with the Immigration and Naturalization Service’s detention of deportable aliens.23 Indeed, when an issue of individual rights is involved, the Court even intrudes upon the inner workings of Congress. In Powell v. McCormack, the Supreme Court ruled that legislative bodies were not free to exclude members for reprehensible conduct.24 The judicial preference for substantive individual rights over structural matters can also be seen in cases involving the due process rights of alleged enemy combatants. In Rasul v. Bush, the Court addressed the issue of whether habeas corpus should be available to foreign nationals detained abroad in connection with the U.S. war on terror.25 This inquiry, however, triggered the larger issues of what due process rights are possessed by those accused of being enemy combatants, and whether the detention of enemy combatants falls under the sole authority of the president and Congress and hence outside the scope of judicial review. Even though the great weight of constitutional precedent indicated that military detainees did not possess due process rights, the Court in Rasul held that U.S. courts do have jurisdiction to hear habeas corpus petitions.26 This directly contradicted Justice Robert Jackson’s pronouncement in Johnson v. Eisentrager that ‘‘executive power over enemy aliens, undelayed and unhampered by litigation, has been deemed, throughout our history, essential to wartime security.’’27 22. U.S. Const. art 1, §8, cl. 4. 23. See Zadvydas v. Davis, 533 U.S. 678 (2001). 24. 395 U.S. 486 (1969). 25. 124 S. Ct. 2686 (2004). 26. See, e.g., Ex parte Quirin, 317 U.S. 1, 48 (1942) (denying leave to file petitions for habeas corpus when several suspected saboteurs (including one U.S. citizen) sought review of their detentions); Johnson v. Eisentrager, 339 U.S. 763 (1950) (holding that the U.S. civil courts have no jurisdiction over noncitizen enemy fighters captured and held in foreign territory); U.S. v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936) (holding that the President should have broad latitude in the context of foreign policy). 27. 339 U.S. 763, 774 (1950).

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Rasul thus provides an embodiment of the post-1937 judicial trend: rigorously reviewing matters of substantive individual rights, while largely ignoring structural issues. In essence, the conflict in Rasul was a separation of powers dispute between the executive’s authority in military affairs and the judiciary’s interest in protecting substantive individual rights, with the Court elevating the latter over the former. In Hamdi v. Rumsfeld, the Court likewise held that a U.S. citizen detained as an enemy combatant (captured in Afghanistan while fighting with a Taliban military unit) could not only challenge the circumstances of his detention before a court, but could present arguments against his detention.28 In dissent, Justice Clarence Thomas argued that the constitutional authority of the President to wage war and to protect the security interests of America took priority over the perceived authority of the courts.29 According to Justice Thomas, decisions regarding detained enemy combatants are decisions given exclusively by the Constitution to Congress and the President; nowhere does the Constitution give the courts authority over war-related matters.30 Justice Antonin Scalia similarly argued that the Hamdi ruling took the Court out of the limited role it held in a democratic society.31

Judicial Balancing of Structure and Individual Rights Within the constitutional scheme, there has emerged an inverse relationship between the enforcement of substantive individual rights and that of structural provisions such as federalism and separation of powers. As the courts have abandoned enforcing these 28. 124 S. Ct. 2633, 2635 (2004) (holding that due process demands that ‘‘an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker’’). 29. Id. at 2674 (Thomas, J., dissenting) (stating that the subject ‘‘detention falls squarely within the Federal Government’s war powers, and we lack the expertise and capacity to second-guess that decision. As such, petitioners’ habeas challenge should fail’’). 30. Id. 31. 124 S. Ct. at 2673 (Scalia, J., dissenting).

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structural provisions, they have (either intentionally or by necessity) had to intensify their enforcement of individual rights. In the words of one commentator, ‘‘the decline of federalism and the rise of judicial supremacy, in short, are the opposite sides of a single coin.’’32 When the Court ceases to protect the kind of governmental structure designed to guard individual liberty, then only the judiciary is left to act as the guardian of liberty—and it does so by carving out and rigidly enforcing a collection of individual substantive rights. This practice of strict review of individual-rights cases and lenient review of structural cases reached its peak during the 1960s and 1970s,33 when the Warren and Burger Courts embarked upon a course of judicial activism covering a wide array of individual rights, including criminal justice,34 race,35 the First Amendment,36 abortion,37 the rights of women,38 the death penalty,39 and procedural due process.40 Contrary to this modern judicial activism in individual rights, the framers viewed the primary safeguard of liberty as the Constitution’s structural features, such as federalism. Contrary to the claim that only individual rights should be strictly enforced by the courts, 32. Michael Uhlmann, ‘‘Wretched Judicial Excess,’’ First Things (November 2002): 49. 33. Michael B. Rappaport, It’s the O’Connor Court: A Brief Discussion of Some Critiques of the Rehnquist Court and Their Implications for Administrative Law, 99 Nw. U. L. Rev. 369, 375 (2004) (arguing that ‘‘the two-tiered approach of vigorous judicial review concerning individual rights, but deferential review of structural matters, is of relatively recent vintage’’). 34. Miranda v. Arizona, 384 U.S. 436 (1966) (creating new procedural safeguards for criminal defendants subjected to custodial interrogation). 35. Loving v. Virginia, 388 U.S. 1 (1967) (striking down Virginia’s ban on interracial marriage). 36. New York Times v. Sullivan, 376 U.S. 254 (1964) (limiting the liability of defendants in a defamation action). 37. Roe v. Wade, 410 U.S. 113 (1973) (recognizing a constitutional right to abortion). 38. Craig v. Boren, 429 U.S. 190 (1976) (striking down gender-based discrimination). 39. Furman v. Georgia, 408 U.S. 238 (1972) (ruling that the death penalty is unconstitutional). 40. Goldberg v. Kelly, 397 U.S. 254 (1970) (holding that a termination of welfare benefits requires a due process hearing).

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the framers intended that structural provisions should receive the highest degree of judicial review.41 During the constitutional period, the protection of individual liberty through judicial review of substantive individual rights was rarely mentioned, primarily because the framers relied more on the structural provisions of the Constitution to check government abuses than on judicially created rights that serve as trump cards on the democratic process.42 As Justice Salmon Chase suggested in Calder v. Bull, liberty rests not on affirmative rights but on the absence or control of power.43 As originally framed, the Constitution protected liberty through a government of structurally restrained powers, not through reliance on the courts to enforce a judicially defined set of insular individual rights. The framers, committed to the notion that rights preceded government, drafted a Constitution that sought not to lay out specific individual rights but to devise institutional mechanisms that would protect individual liberty in all its various forms.44 Theirs was a focus on the larger structure of governmental organization and power, like federalism and separation of powers, rather than on a fixed list of specific individual rights.45 Indeed, the way in which federalism acts as a guardian of individual rights was illustrated by Jonah Goldberg, using the analogy of college dormitories:: Imagine you’ve got ten dorms on a campus and a student population divided up into the usual coalitions: stoners, partiers, jocks, and so forth on one side, and study geeks, exchange students . . . on the other. A purely democratic system where all students get to decide dorm policy could result in the tyranny of 51 percent of the students over 49 percent of the students. The party-hardy crowd could pass a policy permitting loud music and keg parties at all hours of the night. Or if the more academically rigorous coali41. Saikrishna B. Prakash and John C. Yoo, The Origins of Judicial Review, 70 U. Chi. L. Rev. 887, 927–81 (2003). 42. Larry Kramer, Putting the Politics Back into the Political Safeguards of Federalism, 100 Colum. L. Rev. 215, 266 (2000). 43. 3 U.S. (3 Dall) 386 (1798). 44. See Randy E. Barnett, A Reply to Trevor Morrison, 90 Cornell L. Rev. 873, 879 (2005). 45. Id. at 882.

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tion won, they could ban fun of any kind, ever. Similarly, if the administration imposed its own policy from above, you could have a system that makes no one happy. But, if you allowed each individual dorm to vote for its own policies, you could have a system where some dorms operate like scholarly monasteries and other dorms are more fun than a pool party at James Caan’s house. Theoretically, 100 percent of the students could live the way they want.46 Despite the framers’ faith in the scheme or structure of the Constitution to limit the scope of federal authority in ways that would protect individual liberty, the Supreme Court has nonetheless ‘‘emerged in the public’s understanding as the preeminent enforcer of limitations on the national government.’’47 Moreover, the present situation, in which the courts are focused primarily on satisfying specific individual claims, calls to mind Alexis de Tocqueville’s warning about a society made up of disconnected individuals ‘‘endeavoring to procure the . . . pleasures with which they glut their lives’’ under the protection of the centralized power of the judiciary.48

The Consequences of Choosing Rights over Structure A Disconnect Between Individuals and the Democratic Process The framers favored a structural protection for individual liberty because they did not, and could not, envision the kind of activist judiciary needed to ensure liberty through the enforcement of a specified set of substantive individual rights. Yet aside from this distaste for an activist judiciary, the framers also hinged the protection of liberty on the structural design of the Constitution because 46. Jonah Goldberg, ‘‘Jesusland for Thee But Not for Me,’’ Townhall.com (December 2004) [cited April 4, 2007]. Available at www.townhall.com/columnists/Jonah Goldberg/2004/12/01/jesusland_for_thee,_but_not_for_me. 47. Robert Nagel, The Implosion of American Federalism (New York: Oxford University Press, 2001), 54. 48. Alexis de Tocqueville, Democracy in America, trans. Henry Reeve, ed. Phillip Bradley (New York: Knopf, 1945), 1:318.

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they saw the democratic process, with its checks and balances, as sufficiently supportive of individual liberty. With federalism and separation of powers providing an internal, structural check on the kind of government abuses that could erode basic freedoms, a harmony was seen between individual liberty and the workings of the larger democratic society. However, as the belief in this connection eroded over the course of the late twentieth century, individual rights became an isolated end in themselves, disconnected from the structural workings of the constitutional process. Consequently, modern notions of individual rights tend to be divorced from the larger society. Rights are characterized ‘‘by an exaggerated absoluteness, hyperindividualism, insularity, and a silence toward civic and collective responsibilities.’’49 As Professor Mary Ann Glendon argues, equating liberty solely with the judicial enforcement of an array of specified personal freedoms effectively elevates the lone individual to star status in the American political and constitutional scheme. Not only are democratic values downgraded in this process, but the individual is placed in constant conflict with the larger society. In turn, this conflict weakens the foundations of self-government. Individual-rights activists base their constitutional theories on an imaginary ideal of human beings in a ‘‘state of nature.’’ But this is not the way the Constitution sees individuals, especially individuals who are members of a democratic society. The framers did not view people as solitary beings having no relationship to civil society. As William Blackstone once wrote, the freedoms existing in a state of nature are exchanged for a different set of freedoms under civil society.50 Indeed, by joining democratic society, the individual is no longer in a state of nature; thus, laws should not be crafted as if individuals lived separate from society, disconnected from its democratic process. However, the current individual-rights mentality seems to presume that individual freedom cannot truly exist within majoritarian rule, as if majoritarian rule is inherently oppressive. 49. Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse, x, xi, 67. 50. William Blackstone, Commentaries on the Laws of England (Chicago: University of Chicago Press, 1979), 1:121–22.

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(And indeed, without structural provisions like federalism and separation of powers, it would be.) The Constitution envisions democracy like a family: there must be processes within the family structure that give each individual some freedom and yet also bind each member to the family as a whole. An exclusive focus on the individual simply separates that individual from the larger family, with no concern for what unites the family. That is why a structural framework is so important: to organize the larger unit to provide both social cohesion and individual freedom in a balanced dynamic. Similarly, the Constitution is primarily concerned with the workings of the democratic community, not with trying to return individuals to some imaginary state of nature. Structural provisions not only protect individual liberty, but create a framework in which duties and responsibilities can be developed and fulfilled. Within the constitutional scheme, that framework is the democratic process, which in turn occurs within the structural confines of federalism and separation of powers. Because these structures allow individuals to integrate themselves into the larger democratic process, they facilitate both individual rights and responsibilities. A reliance on judicial enforcement of substantive rights, as the sole means of safeguarding liberty, can foster the illusion that particular individual rights are more securely protected than they really are. Consider, for instance, the history of property rights in constitutional law. To the framers, a primary purpose behind the new Constitution was the protection of private property, which was considered the single right most vulnerable to government infringement.51 But as it turned out, property rights were one of the first casualties of the New Deal constitutional revolution; they were transformed from a fundamental freedom into merely a social interest. The same kind of judicial scrutiny once given to property rights is now being given to certain personal freedoms such as the right of privacy. But contrary to the Court’s current approach to this issue, privacy rights are actually better suited to being protected by 51. Glendon, Rights Talk, 24–25.

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the Constitution’s structural scheme. Structural protections allow for a flexible and dynamic protection, shaping individual freedoms according to the democratic desires and interests of the people possessing those freedoms. In the framers’ view, privacy was not protected through judicial enforcement of an individual right; it was protected through the limited scope of governmental powers. However, this limited powers notion is largely ignored in the modern judicial treatment of constitutional privacy.52 Contrary to the Constitution’s structural scheme, the existing right to privacy reflects a rigid judicial mandate on a matter in which every citizen has an interest and that continually changes as society and social relationships change. Moreover, the development of a right to privacy reflects the New Deal constitutional settlement, in which courts acquiesced in the shift from a limited to an activist government. Underlying that shift was the theory that the only way to have an activist central government and individual freedom was to have the latter imposed by the courts, through the individualrights provisions of the Constitution.

A Freedom Better Left to Structural Protections Judicial Development of Privacy Rights The Court’s recognition of a constitutional right of privacy began in Griswold v. Connecticut, where the Court struck down a Connecticut law prohibiting the use of contraceptives, even by married couples.53 The Court ruled that the statute violated ‘‘a zone of privacy’’ created by the ‘‘penumbras’’ that gave ‘‘life and substance’’ to the specific guarantees in the Bill of Rights.54 In outlining this zone of privacy, the Court stated that even though some rights are not specifically mentioned in the Constitution, they are nonetheless related to various freedoms in the Bill of Rights. Although Griswold may have initially appeared to confine the 52. Mark Rahdert, In Search of a Conservative Vision of Constitutional Privacy, 51 Vill. L. Rev. 859, 882 (2006). 53. 381 U.S. 479 (1965) (holding that a right of privacy exists). 54. Id. at 484, 485.

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constitutional protection of sexual activity to married couples, Eisenstadt v. Baird removed any such limitation.55 In Eisenstadt, the Court ruled that if the distribution of contraceptives to married persons cannot be prohibited, a ban on distribution to unmarried persons would be equally impermissible. This decision marked a shift in the conception of privacy from the freedom from surveillance or intrusion into intimate affairs to the freedom to engage in certain activities without any legal interference.56 The Court in Carey v. Population Services International reiterated that the reasoning of Griswold could not be confined to the protection of rights of married adults.57 In overturning a statute that banned the distribution of contraceptives to minors as part of a state policy against teen pregnancy, Carey extended the right of privacy to minors engaging in consensual sexual behavior. The Carey Court stated that the right of privacy, residing in the Due Process Clause of the Fourteenth Amendment, included ‘‘the interest in independence in making certain kinds of important decisions.’’58 In Roe v. Wade, the Court held that the right of privacy recognized in the previous contraception cases was broad enough to cover the abortion decision.59 Not only was a woman’s right to have an abortion now included within the zone of privacy created in Griswold, but to create this zone the Court had to rule that an unborn fetus was not a ‘‘person’’ under the Fourteenth Amendment.60 Later, in reaffirming Roe, Justice Anthony Kennedy elaborated on the right to privacy: ‘‘These matters, involving the most intimate and personal choices a person may make in a lifetime, choices cen55. 405 U.S. 438 (1972) (holding that a law banning the distribution of contraceptives to unmarried persons violates the right of privacy, and hence extending the ruling in Griswold to nonmarried individuals). 56. See Michael J. Sandel, Moral Argument and Liberal Toleration, 77 Cal. L. Rev. 521, 527–28 (1989). 57. 431 U.S. 678 (1977) (overturning state law banning the distribution of contraceptives to minors under 16 years of age). 58. Id. at 684. 59. 410 U.S. 113, 155 (1973). 60. Roe was reaffirmed in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 846–47 (1992) (stating that a woman’s right to choose an abortion is grounded in the concept of liberty protected by the Due Process Clause of the Fourteenth Amendment).

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tral to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.’’61 Thus, the right to an abortion, as with the right to other kinds of intimate choices, was an offshoot of the ‘‘emanations from penumbras’’ that had given rise to the right to privacy. A further development in the expansion of privacy rights to cover the abortion decision occurred in Stenberg v. Carhart, where the Supreme Court struck down a Nebraska law prohibiting partial-birth abortion.62 This expansion occurred even though the Court had already conceded that the constitutional basis for Roe was weak,63 and even though a number of researchers have found that the Court’s opinion in Roe relied on an incomplete and inaccurate history of abortion.64 In Lawrence v. Texas, the Court held that a Texas statute prohibiting people of the same sex from engaging in certain sexual conduct violated the Due Process Clause.65 Justice Kennedy’s opinion argued that the Court’s earlier decisions on sexual privacy and freedom should extend to all adults, regardless of gender and marital or sexual-preference status, thus holding that the Constitution confers a fundamental liberty in the area of sexual intimacy. Broadly interpreted, Lawrence prohibits legislative bodies from imposing any moral judgment on sexual activities occurring in private places. The Lawrence Court specifically recognized a right of sexual intimacy, which it had previously been unwilling to do.66 Even though the Court seventeen years earlier in Bowers v. Hardwick had found that there was not a fundamental right of homosexuals to engage in sodomy, based upon a lack of history or tradition in protecting such a practice, the Lawrence Court found just the opposite type of 61. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. at 851 (1992). 62. Stenberg v. Carhart, 530 U.S. 914 (2000). 63. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). 64. See Joseph Dellapenna, Dispelling the Myths of Abortion History (Durham: Carolina Academic Press, 2006); Robert Destro, Abortion and the Constitution, 63 Cal. L. Rev. 1250 (1975). 65. 539 U.S. 558, 567 (2003). 66. Donald H. J. Hermann, Pulling the Fig Leaf off the Right of Privacy, 54 DePaul L. Rev. 909, 928, 930 (2005).

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history and tradition.67 Consequently, in the wake of Lawrence, there is no longer any question as to whether a right to sexual privacy or liberty exists; the only question is what specific aspects of sexual privacy can or cannot be regulated.68 In his dissent, for instance, Justice Scalia predicted that the next logical step after Lawrence would be the legalization of same-sex marriage.69

A Liberty That Could Have Been As the Court has been developing a right to privacy, it has continued to downplay or ignore property rights, which for a century and a half were a primary focus of constitutional law, and which were once seen as constitutionally vital to a free and independent life.70 In fact, only after the Court ceased treating property rights as fundamental rights under a substantive due process analysis, did it begin to adopt such an analysis for issues involving sexual freedom.71 But the unanswered question resulting from this legacy is whether sexual privacy rights are actually more important to individuals than are property or economic rights. This question was particularly evident in the public outrage over the Court’s decision in Kelo v. City of New London, Conn., which held that a city’s exercise of its eminent domain power in furtherance of an economic development plan, even if used to transfer property from one private party to another, satisfies the constitutional ‘‘public use’’ requirement.72 The question of which rights should be considered fundamental to a free and independent life would not go unanswered if the Court chose to pursue a structural path to individual liberty, 67. 478 U.S. 186 (1986). 68. An emerging issue, for instance, is presented by a case addressing the constitutionality of an Alabama statute regulating the distribution of sexual devices, including the specific issue of whether the right to sexual privacy includes the right to use sexual devices. See Williams v. Attorney General of Alabama, 378 F. 3d 1232, 1233 (11th Cir. 2004). 69. 539 U.S. at 604. 70. See Lochner v. New York, 198 U.S. 45 (1905). 71. See nlrb v. Jones L. Laughlin Steel Corp., 301 U.S. 1, 41 (1937), where the Court refused to scrutinize, using a substantive due process analysis, legislation regulating labor relations. 72. 125 S. Ct. 2655 (2005).

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through the workings of the democratic process. Privacy, for instance, is not the kind of minority-rights issue on which the courts should possess sole authority. Unlike the equal protection rights of political minorities, privacy does not involve an underrepresented interest—it involves an interest that every human being possesses and must balance with his or her need to participate in a strong, self-sustaining society. Everyone, regardless of race or religion or income status, is interested in privacy; it is not a special concern only of a certain specified minority. Indeed, if one is to believe the Court, everyone sees sexual conduct as being essential to selfdefinition; thus, everyone has an interest in, for example, the issue of contraception availability. Consequently, privacy can be best protected through the Constitution’s structural provisions governing the democratic process. The first case in which the Court recognized a constitutional right to privacy, Griswold v. Connecticut, involved state regulation of the sale and distribution of contraceptives. This regulatory scheme did not impinge on an insular minority; it affected the vast majority of adults, regardless of ethnic, racial, or gender identity. As such, any harm it caused amounted to a generalized grievance. And with respect to generalized grievances, the political process is the fair and proper venue for resolution. What distinguishes a generalized grievance from a fundamental individual right is that the latter serves to protect ‘‘an identifiable racial, religious, or political minority that might be subject to majoritarian abuse.’’73 Privacy, however, is different: it is not a right limited to an ‘‘identifiable racial, religious, or political minority.’’ Privacy, according to Professor Jesse Choper, is the kind of ‘‘right that belongs to the majority (rather than an endangered, constitutionally guarded minority).’’ Therefore, the political process can be trusted to protect this right or interest, since any law that unduly infringes on it can be repealed whenever democratic society desires a heightened protection of privacy interests. Privacy is not an individual right subject to majority infringement in the same way that religious exercise by minority religions 73. Jesse H. Choper, The Political Question Doctrine, 54 Duke L. J. 1457, 1473 (2005).

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or equal protection of racial minorities is. With privacy, an interest equally possessed by all genders, races, and ethnic groups, ‘‘there is no structural barrier to the electorate’s repealing previously enacted [laws] if they no longer command the majority’s support.’’74 Thus, the ordinary political process can provide a sufficient protection. In a way, privacy rights are like education rights. They are rights—or more accurately, interests—that each member of society shares; neither privacy nor education is a right or interest confined to any discreet social minority. All people want privacy, as they do an education; but these privacy and education interests must also be balanced against other social interests—for example, the cost of education, and how this cost will be paid. The question of privacy is a question about how society is going to balance social values with individual ones, just as the question of how society funds education is one involving the basic vision of a society, as well as a balancing of the interests of individual opportunity and social progress.75 In litigation challenging disparities in education funding, petitioners have asked the courts to create a specific constitutional standard of education. These cases, however, inject the courts into an improper policymaking role. Traditionally, issues relating to education finance have been the province of legislative bodies, which are far more capable of determining education finance criteria and formulae.76 Likewise, legislative bodies are better able to make the kind of cultural and policy decisions that need to be made when determining the boundaries of individual privacy. Perhaps privacy should be treated as religious exercise rights are treated. Under the rule of Employment Division v. Smith,77 courts do not upset legislative infringements on religious exercise rights unless certain religious practitioners are singled out and treated differently than are the majority religions. Smith allows the state to 74. Id. at 1475–76. 75. Avidan Y. Cover, Is Adequacy a More Political Question Than Equality? The Effect of Standards-Based Education on Judicial Standards for Education Finance, 11 Cornell J. L. & Pub. Pol’y 403, 403 (2002). 76. See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 38–53, 58–59 (1973) (upholding a state education finance system that resulted in unequal levels of spending among local school districts caused by unequal distributions of taxable wealth). 77. 494 U.S. 872 (1990)

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regulate religious exercise with neutral, generally applicable laws that govern all of society equally. Likewise, privacy is inherently a neutral right, possessed in equal degree by all members of society. Consequently, only if a legislature singles out the privacy rights of easily isolated and socially institutionalized minorities should the courts intervene. The Court’s current approach to privacy prevents the public from putting the issue into a broader perspective, encompassing a larger set of individual interests. Take, for instance, the matter of security from terrorism. Only the political process can adequately balance the public’s desire for individual privacy with the need for individual security. A judicially created right of privacy serves to isolate people within society and from society; whereas a reliance on structural provisions to protect privacy helps keep the individual connected to the larger society. To create a right of privacy, and then to apply that right to abortion, the Court has had to make a series of decisions, including the one that an unborn child is not a person. Consequently, the right to privacy has become a ‘‘super-right,’’ which trumps even the interest in protecting potential life.78 In addition, because of the way privacy has evolved as a court-created right, there is an arbitrariness to the current constitutional doctrines. Why, for instance, did the Court pick sexual activity as the area covered by privacy rights? And what if there are many people who define themselves not through their sexual activities but through some other activity? Indeed, evidence that the framers did not recognize or even contemplate any kind of right to sexual privacy can be seen in the plethora of eighteenth- and nineteenth-century laws punishing adultery.79 Indeed, given the fact that a history of abortion regulation existed from the colonial period right up to January 1973, Roe marked a dramatic break from American tradition. The irony of the privacy right created by the courts is that it exists in a society where every aspect of personal privacy other than 78. See Tom Campbell, Separation of Powers (Stanford: Stanford University Press, 2004), 20, 147, 145. 79. See generally Carolyn B. Ramsey, Sex and Social Order: The Selective Enforcement of Colonial American Adultery Laws in the English Context, 10 Yale J. L. & Human. 191, 208–13 (1998).

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sexual conduct is being eroded. Sexual privacy is constitutionally protected, even though identity privacy and informational privacy are under increasing assault from new technologies.80 Professor Clifford Fishman has outlined a host of ways in which technology is invading individual privacy.81 He describes the ubiquity of surveillance technology, the ease with which the Internet can disseminate private information, and the ways in which personal data can be acquired through the use of credit cards, email, and even supermarket discount cards. And even more ironically, especially when one considers the constitutional efforts the judiciary has made to create a right of privacy, the Supreme Court has greatly aided the invasion of privacy by ruling that the media may publish or broadcast the contents of intercepted communications known to have been unlawfully intercepted, so long as the media did not participate in the unlawful interception.82 Moreover, while protecting a right of privacy in sexual matters, the Court has denied various privacy rights in the management of private businesses and clubs. Without any objection by the courts, the executive branch of government often participates in the erosion of personal privacy. For instance, nearly every state employs a date encryption method on its drivers’ licenses.83 However, when a license is swiped through a digital scanner for age verification purposes, the private data stored on the card’s magnetic strip are susceptible to theft. Currently, more than seven million Americans are victimized by iden80. See Robert O’Harrow, No Place to Hide (New York: Free Press, 2005) (outlining all the ways in which personal data can be acquired and how people’s movements and activities can be followed or recorded). See also Clay Calvert, Voyeur Nation: Media Privacy and Peering in Modern Culture, 3 Journal of High Tech Law 1 (2004) (discussing various types of voyeurism made possible by new technologies, as well as how the media use their judicially granted constitutional rights to invade individual privacy). 81. Clifford S. Fishman, Technology and the Internet: The Impending Destruction of Privacy by Betrayers, Grudgers, Snoops, Spammers, Corporations, and the Media, 72 Geo. Wash. L. Rev. 1503 (2004). 82. Bartnicki v. Vopper, 532 U.S. 514, 525, 527 (2001) (ruling that the media are immune from civil damages suits brought under the Wiretap Act, and holding that ‘‘if a newspaper lawfully obtains truthful information about a matter of public significance, then state officials may not constitutionally punish publication of the information’’). 83. See John Cross, Age Verification in the Twenty-first Century, 23 J. Marshall J. Computer & Info. L. 363, 372 (2005).

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tity theft, and a driver’s license is a frequent means by which this theft occurs.84

An Alternative Way of Protecting Liberty One way in which federalism could protect a broader, more democratically determined kind of liberty than that protected through the enforcement of judicially created rights such as the right to privacy is through a freedom inherent within the federalist scheme—the freedom to travel. Though not expressly stated in the Constitution, a right to travel has nonetheless been recognized by the Supreme Court as a fundamental right.85 This right was first acknowledged in Crandall v. Nevada, which held that a state could not tax citizens moving out of that state.86 In Edwards v. California, the Court further solidified Crandall’s free movement principle when it struck down a state law prohibiting anyone from knowingly bringing an indigent nonresident into the state.87 In Shapiro v. Thompson, the Court applied the freedom of interstate travel to durational residency requirements.88 At issue in Shapiro was a state law requiring one year of continuous residency before becoming eligible for welfare payments. In striking down this residency requirement, the Court declared that the right to travel was a fundamental right firmly established in American jurisprudence. A similar ruling occurred in Memorial Hospital v. Maricopa County, where the Court held that restrictions on the right to travel are subject to strict scrutiny.89 84. Id. at 394. 85. See Saenz v. Roe, 526 U.S. 489, 498 (1999); U.S. v. Guest, 383 U.S. 745, 757–59 (1966) (reaffirming the right to travel as an unenumerated right enjoyed by citizens of all states). 86. 73 U.S. 35, 49 (1867) (striking down a state statute imposing a tax upon any person leaving the state by railroad or stagecoach); see also Dunn v. Blumstein, 405 U.S. 330, 338 (1972) (holding that the right to travel protects the freedom to move into and reside in any state). 87. 314 U.S. 160, 165–66 (1944). 88. 394 U.S. 618 (1969). 89. 415 U.S. 250, 258, 269 (1974) (striking down a residency requirement enabling the resident to receive free medical care, ruling that it amounted to a penalty on migration).

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In its decisions, the Court has recognized various aspects to the right to travel. The first is the right to move from state to state.90 A second involves the right to equal privileges and immunities among all residents of a state, including newcomers to that state.91 In this respect, the right to travel encompasses the right of a newcomer to enjoy the same privileges and immunities enjoyed by existing citizens of that state. In Shapiro, even though the invalidated law denying welfare benefits during the first year of state residency did not actually prevent individuals from migrating to the state, it was unconstitutional merely because it discouraged such migration.92 Taking Shapiro one step further, the Court in Saenz v. Roe overturned a California statute limiting the amount of welfare benefits received by residents who had lived in the state less than one year to the amount they would have received in their former state of residence. Reflecting the power of the right to travel, the Court struck down residency requirements that did not cut off benefits entirely for new residents, unlike Shapiro, but merely limited those benefits to those the individuals would have received in the states of their previous residency. In so ruling, the Court held that the right of travel was composed of at least three different components. These three components include: the right of a citizen of one state to enter and leave another state; the right to be treated as a welcome visitor when temporarily present in the second state; and, for those who end up becoming permanent residents of the second state, the right to be treated the same as all other citizens of that state. At issue in Saenz was the third component, which has sometimes been called the right to migrate—a right, according to the Court, expressly grounded in the text of the Fourteenth Amendment Privileges or Immunities Clause.93 Thus, even though the Saenz Court reaf90. See Edwards v. California, 314 U.S. 160, 163 (1941) (striking down a California statue making it illegal to bring into the state a nonresident known to be indigent). 91. See Saenz v. Roe, 526 U.S. 489, 500 (1999). 92. Id. at 638. The Court has extended the approach in Shapiro to include deterrents to settling in a new state, even though no travel had actually taken place. Attorney General v. Soto-Lopez, 476 U.S. 898, 903 (1986). 93. For the first time in 64 years, the Court struck down a state law using a constitutional clause that had generally gone unused since the Slaughter-House Cases decision in 1872. See 83 U.S. 36 (1872).

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firmed the Shapiro doctrine on residency requirements, it applied a different constitutional source than the Equal Protection Clause.94 In some ways, the Court’s right-to-travel jurisprudence mirrors its substantive due process jurisprudence. Even though the Court has repeatedly stated that the ‘‘right finds no explicit mention in the Constitution,’’ this textual omission has not affected constitutional protections given to the right.95 Indeed, courts and scholars have asserted numerous sources for the right.96 Furthermore, notwithstanding the Constitution’s silence, the Court has held that the right to travel is a fundamental right. This in turn means that any restrictions on the right are subject to strict scrutiny, just as are restrictions on those fundamental rights—for example, the right of privacy—identified through a substantive due process approach. As with substantive due process, the right to travel seeks to give protection to unenumerated freedoms perceived as vital to the constitutional scheme. But while substantive due process seeks to protect liberty through judicial creation of certain selected ‘‘substantive’’ rights, the right to travel simply seeks to support and facilitate the liberty-preserving features of federalism envisioned by the framers. Rather than relying on judges to fashion new substantive rights out of the Due Process Clause, the right to travel facilitates a flexible and democratic notion of liberty that allows people to determine their own climate of individual liberty. Thus, the right to travel, much more so than substantive due process, coincides with the framers’ beliefs of how the Constitution would preserve liberty. Moreover, a reliance on the right to travel, which in turn reflects the workings of federalism, would give states a greater leeway to balance various social values with their own constituency’s 94. Shapiro found the constitutional basis of the right to travel in the Equal Protection Clause, 394 U.S. at 638 (finding that ‘‘the waiting-period requirement clearly violates the Equal Protection Clause’’). But the Saenz Court abandoned the Equal Protection Clause and replaced it with the Privileges or Immunities Clause. However, it did not abandon the fundamental rights analysis of previous right to travel cases, nor did it depart from the strict scrutiny approach to right to travel cases. 95. Shapiro, 394 U.S. at 630. 96. Christopher S. Maynard, Nine-Headed Caesar: The Supreme Court’s ThumbsUp Approach to the Right to Travel, 51 Case W. Res. L. Rev. 297, 322 (2000) (stating that, at various times, the right to travel has been protected by ‘‘the Citizenship Clause, the Privileges or Immunities Clause, the Equal Protection Clause, and the Due Process Clause of the Fourteenth Amendment’’).

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particularized view of individual rights; the substantive due process approach, on the other hand, involves a centralized Court dictating to the entire nation a uniform view and application of individual rights. Even though the Court has never settled on its precise constitutional source, the right to travel might be able to replace substantive due process as the catchall individual liberty protection. First, the right to travel would provide a method of protecting liberty that is more in line with the framers’ notions of how the Constitution would guard individual liberty. Second, the right to travel gives to individuals, rather than to judges, the ultimate power to determine the particular legal environment conducive to or essential for a life of human autonomy and dignity. Third, a reliance on the right to travel would lessen the temptation for judicial activism and lawmaking that exists with the substantive due process approach, and would therefore diminish the points of tension and conflict between judicial review and democratic policymaking. Through the substantive due process approach, the Court has often suffocated any flexibility or diversity in state policies, precluding states from reaching their own consensus or accommodation on individual rights. Nearly seven decades have elapsed since the Court made its great constitutional compromise of 1937, abandoning the structural protections of the Constitution and choosing to protect individual liberty through the judicial enforcement of substantive individual rights. And over the last four decades, the Court has been increasingly willing to protect select individual rights under a substantive due process doctrine, which in turn requires the courts to decide precisely which rights merit ‘‘fundamental’’ status. One way to return to a reliance on structural provisions like federalism, to let liberty thrive through the organic workings of the Constitution’s structural provisions, may be to focus more on the right to travel. Federalism enhances liberty by providing an avenue of escape from local repression. As Kathleen Sullivan postulates, the answer to local prejudice is exit: ‘‘a gay person inhibited by pre-Lawrence v. Texas Wyoming laws and social norms in a rural locale has the freedom to move to more welcoming urban environments. Federalism provides an opportunity for socially fluid self-definition ac-

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cording to each locality’s different legislative and cultural environment. Such local norms provide an opportunity for selfdefinition and redefinition until a national consensus forms to extend any one local norm more universally.’’97 The ‘‘nationalization’’ of individual rights, as accomplished by the substantive due process approach, has not always been the preferred judicial strategy. As one court recognized nearly a century ago about the Constitution’s scheme for protecting liberty, the right of each American citizen, who is necessarily a resident of a state, ‘‘depends wholly upon laws of the state, and that as to a great number of matters he must still look to the states to protect him in the enjoyment of life, liberty, property, and the pursuit of happiness.’’98 More recently, in Employment Division v. Smith, the Court’s ruling that it would no longer enforce the Free Exercise Clause as strictly as it once had suggested that responsibility for protecting religious freedoms would be shifted to the states.99 Thus, each state would decide for itself whether certain religious observances should be exempt from laws of general applicability.100 However, this general decentralization of rights, as suggested by Smith, has not occurred; instead, through the use of substantive due process, the Court has centralized the whole area of individual liberty, despite the Constitution’s original conception of how such liberty would be safeguarded, and despite the fact that structural provisions like federalism offer a constitutional path for a greater reliance on the democratic process to protect liberty in an increasingly diverse nation.

An Unfinished Revolution Given the benefit of hindsight, the sacrifice needed for the sake of upholding the constitutionality of the New Deal legislation can now be seen. Many scholars claim that this compromise has actually 97. Kathleen M. Sullivan, From States’ Rights Blues to Blue States’ Rights, 75 Fordham L. Rev. 799, 812 (2006). 98. United States v. Moore, 129 F. 630, 632 (C. C. N. D. Ala. 1904). 99. 494 U.S. 872 (1990). 100. See Eugene Volokh, A Common-Law Model for Religious Exemptions, 46 UCLA L. Rev. 1415, 1468 (1999).

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contributed to the erosion of individual liberty in America. In the view of Randy Barnett, it is the broad use of Commerce Clause powers ‘‘that has most often been used by Congress to restrict the liberties of the people.’’101 For this reason, Barnett suggests returning to a pre–New Deal understanding, in which the Constitution’s structural provisions were enforced as strictly as its individualrights protections are enforced now.102 Indeed, even though it was a calamitous event, the Great Depression should not continue to haunt constitutional law more than seven decades later. Many of the same jurists and scholars who advocate judicial deference on structural matters support the notion of a living Constitution capable of adapting its principles and doctrines to meet the changing needs of contemporary society. To advocates of a living Constitution, it is not possible to ‘‘lock in’’ the Constitution’s enduring principles. However, this is just what the courts do when protecting individual liberty through ‘‘locking in’’ their interpretations of substantive individual rights, instead of letting liberty thrive through the organic workings of the Constitution’s structural provisions. On the issue of abortion, for instance, the states for almost 200 years preceding Roe had each formed their own laws and policies. Under the constitutional scheme of federalism, American democracy had left the regulation of abortion to the states, some of which had lessened or eliminated their restrictions prior to 1973, others of which had retained their prohibitions.103 Thus, for two centuries, the American experience had rejected the imposition of a rigid, uniform abortion rule for the entire country. Judicially created rights not only impose an undemocratic uniformity on a diverse nation, but by their very nature acquire an almost irrational rigidity. When the courts fashion new rights out of the Constitution, those rights become cemented into law, even after their constitutional foundation has been discredited. This rigidity can be seen in the Court’s willingness to uphold even those 101. Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty (Princeton: Princeton University Press, 2004), 277. 102. Id., 278. 103. Clarke Forsythe and Stephen Presser, Restoring Self-Government on Abortion, 10 Tex. Rev. L. & Pol. 301, 325–26 (2006).

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prior decisions that it now considers wrongly decided. In Webster v. Reproductive Health Services, for instance, a plurality of the Court, although sustaining Roe, acknowledged that Roe had proved ‘‘unsound in principle and unworkable in practice.’’104 A similar refusal to overturn a judicial ruling on individual rights occurred in connection with Miranda v. Arizona, which conferred a constitutional right to certain police warnings before any self-incriminating statements obtained in custodial interrogations could be used.105 Despite questioning the constitutional basis for Miranda, a long line of decisions has nonetheless upheld the ruling. In New York v. Quarles, the Court recognized that Miranda warnings were not ‘‘themselves rights protected by the Constitution.’’106 Later, in Dickerson v. United States, the Court again refused to overrule Miranda, even though three of the Justices in the majority had previously written or joined in opinions stating that Miranda was not constitutionally sound.107 Thus, a conclusion can be drawn that when an individual right previously created is at issue, the Court will mount a rigid defense of that right, as it has done with its reluctance to overrule Roe and Miranda. However, when the defense of a judicially created individual right is not at stake, the Court is much more willing to overturn precedence, as it did in Lawrence v. Texas when it overruled Bowers v. Hardwick, which had sustained an antisodomy statute. A criticism often made is that the Constitution does not represent the consent of the governed; indeed, how can present-day society be governed by provisions drafted by a small group of delegates more than 200 years ago? The answer lies in the structural aspects of the Constitution, which lay out the ground rules and processes for a democratic society to keep continually reaching consent on the laws that govern it. But such social consent cannot be established through the judicial enforcement of selected rights that do not even appear in the Constitution and that have never been agreed to by a democratic community. 104. 492 U.S. 490, 518 (1989). 105. 384 U.S. 436 (1966). 106. 467 U.S. 649, 654 (1984). 107. Dickerson, 530 U.S. at 445 (Scalia, J., dissenting) (referencing previous opinions of Justices Rehnquist, Kennedy, and O’Connor that questioned the constitutional basis of Miranda rights).

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After Carolene Products and certainly after Griswold, the Court has been willing to protect select individual rights under a substantive due process doctrine. Perhaps this is because the Court virtually abandoned, until the 1990s, any enforcement of structural provisions that had long been the Constitution’s most effective way of protecting liberty. But now that those structural provisions are being revived in the Court’s ‘‘New Federalism,’’ the Court should consider lessening its activism in the individual-rights area. This retreat will also relieve the courts of having to decide which rights merit ‘‘fundamental’’ status, as they currently do under the substantive due process doctrine—for instance, with privacy. Moreover, a rights federalism ‘‘ensures that different conceptions of [different rights] can prevail in different jurisdictions’’; it accommodates the coexistence of different views of private rights.108 A federalist system protects liberty by giving all persons a fair shot at prevailing in the subnational political process, writing their preferred vision of liberty into the subnational laws. The ‘‘liberty’’ being protected is not the laws that such jurisdictions enact, but rather the liberty of collective self-government in the definition of rights, free from the gratuitous suppression of one side of the disagreement that is required by uniform national legislation. The political processes of federalism, in other words, do not protect liberty as some object distinct from those processes themselves: those subnational processes are themselves constitutive of liberty, where ‘‘liberty’’ stands for the equal right of all affected by a definition of ‘‘rights’’ to have a say in rights’ definition.109 So far, however, the Court has not adjusted its individual-rights approach to coincide with its federalism approach. As one scholar has noted, ‘‘the Rehnquist Court may well be the most pro–First Amendment Court that has ever sat.’’110 It has protected the right 108. Roderick M. Hills, ‘‘Federalism as Westphalian Liberalism, 75 Fordham L. Rev. 769, 788, 793 (2006). 109. Id. at 797. 110. Steven Calebresi, The Libertarian-Lite Constitutional Order and the Rehnquist Court, 93 Geo. L. J. 1023, 1048 (2005).

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to burn the American flag.111 It has struck down congressional attempts to regulate Internet pornography.112 It has articulated new kinds of substantive individual rights, such as the Lawrence right to intimate same-sex activity. It has overturned regulations on tobacco advertising near schools.113 It has upheld the Miranda rule.114 It has struck down an amendment to the Colorado Constitution that prohibited state law from granting to homosexuals a protected legal status, even though this ruling contradicted the thrust of the Court’s federalism revolution.115 And in Hamdi and Rasul, it has ruled against the government and in favor of individual enemy combatants in the U.S. war on terror. The Court’s ruling in Hamdi has been called a ‘‘strikingly libertarian response for the Court to take during wartime.’’116 And yet, Hamdi was ‘‘nothing compared to the extreme libertarianism the Court displayed in Rasul v. Bush.’’117 Contemporary courts, in their intense focus on individual rights, have also expanded the types of individual interests that qualify for procedural due process protections. In Hamby v. Neel, the court held that an individual held a property interest in coverage under Tennessee’s Medicaid Demonstration Project and hence could not be denied coverage without procedural due process.118 Similarly, the Second Circuit ruled that individuals had a protected property interest in receiving benefits under New York’s Home Energy Assistance Program.119 In Youakim v. McDonald,120 the Seventh Circuit held that foster parents had a protected property interest in foster care benefits. Also, in Marcinas v. Lewis,121 the court found that an illegal stowaway seeking asylum was entitled to the same procedural 111. Texas v. Johnson, 491 U.S. 397 (1989); U.S. v. Eichman, 496 U.S. 310 (1990). 112. Reno v. ACLU, 521 U.S. 844 (1997); Ashcroft v. ACLU, 124 S. Ct. 2783 (2004). 113. Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001). 114. Dickerson v. U.S., 530 U.S. 428 (2000). 115. See Romer v. Evans, 517 U.S. 620 (1996). 116. Calebresi, The Libertarian-Lite Constitutional Order and the Rehnquist Court, at 1055. 117. Id. at 1056, 1059 (further arguing that the Rehnquist Court has ‘‘turned out to be strikingly libertarian in a whole host of issues’’). 118. 368 F. 3d 549 (6th Cir. 2004). 119. Kapps v. Wing, 404 F. 3d 105 (2d Cir. 2005). 120. 71 F. 3d 1274 (7th Cir. 1997). 121. 92 F. 3d 195.

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due process as other asylum applicants. In Greene v. Barrett, an officer with the Laramie County Sheriff’s Department was found to have a protected property interest in his rank and therefore could not be demoted without receiving due process.122 And in Hoang v. Comfort,123 the court held that the Immigration and Nationality Act, which mandated detention of criminal aliens awaiting removal proceedings, violated their due process rights. This case law derives in large part from the Supreme Court’s ruling in Plyler v. Doe, striking down Texas’s policy of excluding illegal aliens from its public schools.124 To date, the Court’s federalism revival has gone only halfway in several aspects. Not only has it failed to revive federalism as a structural protection of liberty, but it has focused its federalism revolution on only one branch of government—Congress. The ‘‘New Federalism’’ instigated by the Rehnquist Court has addressed the relative powers of Congress vis-a`-vis the states, but it has not looked to the larger theme of decentralizing government authority in American society as a whole. To address this larger theme, the constitutional revolution would have to confront the role and power of the Court itself, especially the ways in which it has continued to centralize and expand its power throughout the years of the so-called New Federalism. Indeed, one of the most frequent concerns voiced during the ratification debates on the Constitution was that an unaccountable judiciary could undercut democratic selfgovernment.125

122. 174 F. 3d 1136 (10th Cir. 1999). 123. 282 F. 3d 1247. 124. 457 U.S. 202 (1982) (stating that ‘‘person’’ within the meaning of the Fourteenth Amendment includes illegal aliens). 125. Brutus XV, N.Y.J., March 20, 1788, reprinted in The Complete Anti-Federalist, ed. Herbert J. Storing (Chicago: University of Chicago Press, 1981), 2:437.

6 contradicting the federalism revolution: the court’s nationalizing rights-jurisprudence

Despite the modern Court’s dramatic move toward political federalism, it has not made a corresponding move in the area of individual rights. Rather than encouraging a decentralized rightsfederalism, giving states leeway to balance social values with their own particularized view of individual rights, the Court has consolidated the matter at the national level, dictating to the entire nation a uniform view and application of individual rights. In this respect, according to Robert Nagel, the Court has proved ‘‘hostile to the basic impulses underlying a robust form of federalism,’’ especially when it comes to decentralizing its own power.1 Contrary to the decentralization that has somewhat occurred with respect to the relationship between Congress and the states, there has been no decentralization regarding the judiciary’s dictates and formulation of individual rights. In fact, the Court’s federalism revolution has coincided with an opposite move regarding individual rights, where an increased centralization has occurred despite the nation’s growing diversity. Consequently, when the judicial and legislative branches are considered together, government authority as a whole has not been decentralized as much as the New Federalism might suggest. In the area of individual rights, the centralizing course on which the Court embarked under Chief Justice Earl Warren has continued up to the present. With issues ranging from what limits should be placed on abortion, to how convicted murderers may be punished, to whether pornographic speech can be kept from minors, to how 1. Robert Nagel, The Implosion of American Federalism (New York: Oxford University Press, 2001), 69.

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public religious symbols may be displayed, the Court has refused to permit much diversity in state policies and has ruled that only it can lay down one, uniform mandate to the entire country. Through this centralization of authority, the Court has precluded states from reaching their own interpretation or accommodation on individual rights. This arrangement, however, contradicts the intent of the framers, who never relied on judicial enforcement of substantive individual rights to protect liberty, particularly not on a nationalized set of uniform mandates handed down by the Supreme Court.

The Court’s Centralization of Rights Dictating Religious Expression in a Diverse Society Through its individual-rights decisions, the Court has centralized its authority over many aspects of America life, including religion, violent and indecent speech through the media, sexual behavior and family relations, and the line between privacy and community values. It has used its rights doctrines to downgrade or overrule the democratic judgments of state and local communities across the nation. In Texas v. Johnson, flag desecration statutes in forty-eight states were struck down.2 In McIntyre v. Ohio Elections Commission, the Court invalidated bans on anonymous campaign literature that had been enacted in forty-nine states.3 In Stenberg v. Carhart, the Court struck down prohibitions on partial-birth abortions that were in effect in thirty states.4 And in City of Chicago v. Morales, the Court undercut vagrancy laws that have prevailed for more than a century.5 Although many legal scholars employ the multicultural model to advocate a greater respect for America’s cultural mix, they simultaneously assert a rigidly nationalistic approach to individual rights. The claim is made that the United States has but one political com2. 3. 4. 5.

491 U.S. 397 (1989). U.S. 334, 371 (Scalia, J., dissenting) (1995). 530 U.S. 914 (2000). 527 U.S. 41 (1999).

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munity, and that all rights must be uniformly applied within this community.6 But such a rights-nationalization goes against the inherent diversity of America. This tension is especially evident in the way the courts have used individual-rights doctrines to stifle the religious life of local communities. The Supreme Court has used the Establishment Clause to strike down many local accommodations of religious exercise, including all kinds of public displays of religious symbols. According to Professor Daniel Conkle, the Supreme Court has used the Establishment Clause ‘‘to enforce a wavering, but relatively strict, separation of church and state at all levels of American government.’’7 As Justice Anthony Kennedy stated in County of Allegheny, the Court has displayed ‘‘an unjustified hostility toward religion’’ and a ‘‘callous indifference toward religious faith.’’8 Carving out a ‘‘dissenter’s right’’ from the Establishment Clause, the Court has given a constitutional trump card to individuals who claim their rights have been violated by a prayer delivered by a rabbi at a high school graduation,9 a cre`che displayed on public grounds,10 a prayer recited by a student prior to the start of a high school football game,11 and most recently, a plaque of the Ten Commandments hanging in a courthouse.12 This dissenter’s right has been uniformly applied throughout the whole nation, regardless of the religious traditions or sensibilities of the local communities in which the religious displays or expressions take place. It is a judicially created right that essentially dictates the public role of religion in every community of every state and is often used to block the religious expressions of the larger community. Through enforcement of this right, the Supreme Court has ‘‘reduced the role of religion in public life, and the scope of religious freedom in pri6. Edward L. Rubin and Malcolm Feeley, Federalism: Some Notes on a National Neurosis, 41 UCLA Law Review 903, 945 (1994). 7. Daniel O. Conkle, Toward a General Theory of the Establishment Clause, 82 NW. U. L. Rev. 1113, 1117 (1988). 8. County of Allegheny v. ACLU, 492 U.S. 573, 655, 664 (1989). 9. Lee v. Weisman, 505 U.S. 577 (1992). 10. County of Allegheny v. ACLU, 492 U.S. 573 (1989). 11. Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000). 12. McCreary County v. ACLU, 125 S. Ct. 2722 (2005).

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vate life, to less than that intended by the framers and ratifiers of the First Amendment’s religion clauses.’’13 The modern Establishment Clause doctrine was formed during the Warren and Burger eras, when the Court assumed exclusive authority to dictate all matters concerning individual rights. At the same time it was deriving its equal protection jurisprudence, focused as it was on the goal of preventing social exclusion, the Court adopted a dissenter’s-rights view of the Establishment Clause. This right reflected the fear that a religious presence in society’s civic life would lead to social strife along religious lines and a fragmentation of the political community.14 Justices John Paul Stevens and Stephen Breyer have articulated this fear, arguing that public aid to religion would foster political discord and tear the social fabric underlying American democracy. Drawing on experiences from the Balkans, Northern Ireland, and the Middle East, Justice Stevens wrote: ‘‘Whenever we remove a brick from the wall that was designed to separate religion and government, we increase the risk of religious strife and weaken the foundation of our democracy.’’15 Justice Breyer likewise noted that ‘‘the Establishment Clause concern for protecting the Nation’s social fabric from religious conflict poses an overriding obstacle’’ to the public accommodation or recognition of religion.16 In a later case involving a public display of the Ten Commandments, Justice Breyer based his decision on the issue of whether the display would ‘‘create the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid.’’17 But these views did not originate with Justice Breyer. Two and a half decades earlier, Chief Justice Warren Burger wrote that ‘‘political division along religious lines was one of the principal evils against which the First Amendment was intended to protect.’’18 13. Brian J. Serr, A Not-So-Neutral ‘‘Neutrality,’’ 51 Baylor L. Rev. 319, 320 (1999) (arguing that the Court’s establishment clause decisions ‘‘mandate a government ‘neutrality’ of hypersensitivity toward even the most limited acknowledgments of religion in public life’’). 14. See, e.g., Zelman v. Simmons-Harris, 536 U.S. 639, 718–29 (2002) (Breyer, J., dissenting). 15. 536 U.S. at 686 (Stevens, J., dissenting). 16. Id. at 717 (Breyer, J., dissenting). 17. Van Orden v. Perry, 125 S. Ct. 2854, 2871 (2005) (Breyer, J., concurring). 18. Lemon v. Kurtzman, 403 U.S. 602, 622 (1971).

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And according to Justice William Brennan, the ‘‘divisive political potential’’ of public accommodations of religion is what violates the Establishment Clause.19 According to these views, religion is a divisive force, and it is the Court’s role to quell any conflicts that might arise from the religious practices of a diverse people, even though such a position runs counter to the notion of free exercise and free speech. As Professor Alan Schwarz once theorized: ‘‘If avoidance of strife were an independent constitutional value, no legislation could be adopted on any subject which aroused strong and divided feelings.’’20 This view of the Court’s role as quelling any divisiveness that might result from religion also contradicts James Madison’s view that the only way to counter social division is to encourage an even greater pluralism.21 As Madison outlined in Federalist Paper No. 10, the threat of majority tyranny can be remedied by a diverse political landscape composed of many competing groups and interests.22 And the same holds true for religion. Madison argued in Federalist Paper No. 12 that the way to guard against the oppression of minority religions is to promote a robust religious pluralism.23 The United States is one of the most religious countries in the world.24 Yet, there is little of the sectarian strife that plagues much of the rest of the world. Rather than serving to undermine civic values, religious institutions, as the weight of evidence indicates, have historically served as a foundation for civic life in America.25 Alan Wolfe has discovered that most Americans prefer to practice a ‘‘quiet faith’’: that is, while Americans are more likely than citizens in other democratic countries to express a belief in God and to attend religious services regularly, they are reluctant to impose 19. Wolman v. Walter, 433 U.S. 229, 256 (1977). 20. Alan Schwarz, No Imposition of Religion, 77 Yale L. J. 692, 711 (1968). 21. See Jack Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (New York: Knopf, 1996), 35–36, 42–56. 22. The Federalist No. 10, 56–55 (James Madison). 23. The Federalist No. 51, 347, 351–52 (James Madison). 24. See Stephen J. Stein, Religion/Religions in the United States: Changing Perspectives and Prospects, 75 Ind. L. J. 37, 41 (2000). 25. See Robert D. Putnam, Bowling Alone: The Collapse and Revival of American Community (New York: Simon & Schuster, 2000), 65–69.

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their religious views on their neighbors and are disinclined to support denominational leaders or groups that would.26 The judicial use of the endorsement test reveals the way in which the Court has created and applied a nationalized Establishment Clause–based dissenter’s right. Under the endorsement test, impermissible government involvement with religion exists when the public perceives that government is endorsing a religion.27 But the endorsement test can easily descend into a judicial speculation about a dissenter’s feelings of exclusion or discomfort. Under such an analysis, a dissenter can stop a public prayer inserted into a high school graduation ceremony, even when that dissenter had no obligation to participate in the prayer.28 Perhaps the only pressure felt by the dissenter was the result of some social discomfort for not participating, but there was no governmental pressure to participate nor any threat of punishment for not participating. Yet the Court used this discomfort by a single dissenter to transform a prayer recitation into a state establishment of religion. With such a rigid and nationalized enforcement of these dissenter’s rights, the Court has assumed a near exclusive role in shaping the religious nature of society, exemplified by its invalidation of statutes authorizing a moment of silence at the beginning of the school day.29 The judicial rulings on displays of the Ten Commandments also illustrate the way in which the Court has centralized within itself all power to dictate the parameters of religious expression in public venues.30 Essentially, the Court has enforced a rule of mandated neutrality, treating every community of the nation the same as every other, despite the history or traditions or sensibilities of that community, despite any contrary interpretations of democratically elected bodies, and despite the possibility that the Ten 322.

26. Alan Wolfe, One Nation, After All (New York: Viking, 1998), 56, 39–87, 275–

27. See Lynch v. Donnelly, 465 U.S. at 690 (O’Connor, J., concurring) (discussing the endorsement test and the importance of determining what message the government communicates in its activities). 28. Lee v. Weisman, 505 U.S. at 580–84, 594–96. 29. Wallace v. Jaffree, 472 U.S. 38 (1985). 30. See Stone v. Graham, 449 U.S. 39 (1980) (holding that the Ten Commandments hanging alone in public school classrooms was unconstitutional, but leaving unanswered the question of whether they would still be unconstitutional if surrounded by other displays).

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Commandments may have become part of a community’s public life. In McCreary County v. ACLU, the Court ruled unconstitutional a display of the Ten Commandments in a county courthouse hallway.31 The Court found that the purpose behind the display was religious rather than secular, even though the county had altered and modified its displays on two different occasions to give them an increasingly secular image. The third display, entitled ‘‘The Foundations of American Law and Government,’’ contained nine framed documents of equal size, including the Declaration of Independence, the Bill of Rights, the Mayflower Compact, the lyrics of the Star Spangled Banner, and the Ten Commandments, all of which were accompanied by an educational statement about the document’s historical and legal significance. But the Court ended up penalizing the county for its attempts to expand and modify the displays, ruling that such attempts merely proved an initial and continuing religious purpose. The Court also ruled that a ‘‘reasonable observer’’ would in fact reach certain specific understandings regarding the county’s intent to endorse the Commandments’ religious message. According to the Court, a reasonable observer would somehow read into all the documents in the third display a religious theme highlighting and supporting the religious message of the Ten Commandments. However, as the dissent pointed out, ‘‘nothing stands behind the Court’s assertion that governmental affirmation of the society’s belief in God is unconstitutional except the Court’s own say-so.’’ The endorsement test, as first articulated by Justice Sandra Day O’Connor, focuses on the perceived meaning of the religious display in the community. According to Justice O’Connor, an impermissible endorsement ‘‘sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.’’32 Consequently, to apply the endorsement test, the Court must undertake an examination of the perceptions of the supposed ‘‘reasonable observer.’’ This examina31. 125 S. Ct. 2722, 2738, 2750 (2005), 32. Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O’Connor, J., concurring).

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tion of various viewers’ impressions of some religious display is bound to wallow in subjectivity, because it calls for judges to make assumptions about the views unknown people may have derived from particular religious symbols. In Freethought Society v. Chester County, the Third Circuit Court of Appeals addressed an array of factual issues relating to whether a ‘‘reasonable observer’’ would view a Ten Commandments display as a governmental endorsement of religion.33 The subject of the lawsuit was a plaque of the Ten Commandments that had been erected in the county courthouse in 1920. Since that time, the county had done nothing to draw attention to or maintain the plaque. Then in 2001, a lawyer for a group of atheists, agnostics, and other freethinkers demanded that it be taken down. In the subsequent suit, commenced to force the county to remove the plaque, the plaintiff stated that although she had been aware of the plaque since 1960 she did not find it offensive until she became an atheist in 1996. To decide the issue of whether the plaque represented an affirmative governmental endorsement of religion, the court investigated not only the initial purpose behind the plaque’s erection in 1920, but also the reasons that the county refused to remove the plaque when so demanded in 2001, as well as whether a reasonable observer would know of the plaque’s long history and whether the age of the plaque was visually apparent. This inquiry then devolved into one about whether a viewer would be aware of the entire context in which the plaque was erected. In applying the endorsement test, courts essentially have to conduct legislative-type fact-finding missions. For instance, in Santa Fe Independent School District v. Doe, to determine whether the purpose of the school district’s policy permitting student-led prayer before high school football games was to endorse religion, the Court believed it should not ‘‘stop at an analysis of the text of the policy’’ but should also examine ‘‘the circumstances surrounding its enactment.’’34 Such an examination would extend to whatever involvement the school district had had in any previous types of religious-related practices or activities in the schools. 33. 334 F. 3d 247, 251, 270 (3d Cir. 2003). 34. 530 U.S. 290, 315 (2000).

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Perception is the key to applying the endorsement test. In the context of holiday displays of religious symbols, for instance, the Court has ruled that even if the government has not purposefully endorsed religion, an onlooker’s perception of endorsement may be enough to have that display removed.35 Public school teachers are prohibited from engaging in religious speech while on the job; because no matter how explicitly they deny any connection between their views and those of the school, the courts presume that students will perceive such a connection, thereby causing an Establishment Clause violation. In Roberts v. Madigan, a teacher at a public elementary school was barred from keeping a Bible on his desk during the school day, from reading his Bible in front of the students during a daily fifteen-minute silent reading period, and from keeping two Christian religious books on his classroom shelves.36 And in Bishop v. Aronov, an exercise physiology professor at a public university was sanctioned for organizing an after-class meeting on religious topics attended by several of his students and for making a series of religious remarks to his class, even though the professor prefaced those remarks by labeling them his ‘‘personal bias,’’ thus denying any implication of governmental endorsement.37 The endorsement test also requires extensive judicial oversight of private religious speech conducted on public property, even when the government is not officially sponsoring or sanctioning that speech, lest the perception mistakenly occur that the government is actually sponsoring that speech. Justice O’Connor has noted that an impermissible message of endorsement can occur even if the governmental actor neither intends nor actively encourages any endorsement.38 Thus, the Establishment Clause can impose on the government an obligation to actually take proactive steps to avoid being perceived as endorsing a private religious message. But the problem is how to determine when private speech becomes sufficiently associated with the government to cause a violation of the endorsement test. 35. See County of Allegheny v. ACLU, 492 U.S. 573, 598–602 (1989). 36. 921 F. 2d 1047, 1059 (10th Cir. 1990). 37. 926 F. 2d 1066, 1068–69 (11th Cir. 1991). 38. Capital Square Review and Advisory Board v. Pinette, 515 U.S. 753, 774 (1995) (O’Connor, J., concurring in part and concurring in the judgment).

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The Court’s creation of a nationalized dissenter’s right under the Establishment Clause allows relatively little freedom or flexibility for state and local governments to accommodate the religious views of their residents. This judicial intrusion into the religious expressions of society is evident in a controversy in San Diego. For more than fifty years, a large cross has stood in a city park atop Mount Soledad. Indeed, there has been a cross at that location since 1913, and the present cross is part of a Korean War veterans memorial. However, the park has been embroiled in litigation since 1989, when a self-described atheist and humanist sued to have the cross removed.39 Yet despite a decade and a half of litigation, the city remains strongly supportive of the cross. In a July 2005 referendum, nearly 75 percent of the voters approved a measure to preserve and maintain the cross on its present location. As the Mount Soledad cross dispute shows, ‘‘the Court’s generally expansive understanding of what it means to establish religion continues to breed litigation, and to hinder legislative and local experiments with creative’’ accommodations of religion.40 The Court’s use of a nationalized dissenter’s right often makes it difficult for state and local governments to accommodate religion. Accommodation is distinct from establishment. With accommodation, the government simply facilitates private and voluntary decisions of the individual or group regarding whether to engage in a religious practice; the government does not induce or direct those decisions through either incentives or compulsion.41 Exemplifying the judicial refusal to accommodate, the Court in Texas Monthly, Inc. v. Bullock struck down a statute exempting religious periodicals from a state sales tax.42 The Court ruled that it could find no concrete need to accommodate religious activity, even though the state legislature had obviously come to exactly the opposite conclusion—for instance, perhaps a state would want to accommodate 39. Randal C. Archibold, ‘‘High on a Hill Above San Diego, a Church-State Fight Plays Out,’’ The New York Times (October 1, 2005), A8. 40. Mary Ann Glendon, Religion in Public Life: Access, Accommodation, and Accountability, 60 Geo. Wash. L. Rev. 672, 679 (1992). 41. Michael McConnell, Accommodation of Religion: An Update and a Response to the Critics, 60 Geo. Wash. L. Rev. 685, 688 (1992). 42. 489 U.S. 1, 21–25 (1989).

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religious organizations in their attempt to convey certain values, which in turn could have a beneficial effect on social ethics. As then-Justice William Rehnquist stated: ‘‘governmental assistance which does not have the effect of inducing religious belief, but instead merely accommodates or implements an independent religious choice does not . . . violate the Establishment Clause.’’43 By using the Establishment Clause to create a nationalized set of dissenter’s rights, the Court has ignored the federalism aspect of the First Amendment. Akhil Amar describes the Establishment Clause as being ‘‘utterly agnostic on the substantive issue of establishment; it simply mandated that the issue be decided state by state and that Congress keep its hands off.’’44 The Establishment Clause was intended by the framers to effect ‘‘a policy of federalism on questions of church and state,’’ according to Professor Daniel Conkle.45 As originally conceived, Conkle argues, the Establishment Clause prohibited the federal government from interfering with the states’ freedom to legislate on matters of religion. This federalism aspect pervaded the debates leading up to the drafting of the First Amendment. Not only did the drafters not intend to apply the Establishment Clause to states and localities, but the historical evidence ‘‘strongly suggests that the fourteenth amendment, as originally understood, did not incorporate the Establishment Clause for application to state government action.’’46 Following the ratification of the Fourteenth Amendment, for instance, Congress rejected a measure that would apply the religion clauses of the First Amendment to the states. Because it was generally agreed that the framers did not intend to apply the clause to the states, very few religion clause cases were decided in the first one hundred and fifty years of the Constitution’s existence.47 Since the 1960s, however, there has been a substantial increase in Establishment Clause litigation. With the 43. Thomas v. Review Bd., 450 U.S. 707, 727 (1981) (Rehnquist, J., dissenting). 44. Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction (New Haven: Yale University Press, 1998), 246. 45. Daniel O. Conkle, Toward a General Theory of the Establishment Clause, 82 Nw. U. L. Rev. 1113, 1134, 1135, 1137 (1988). 46. Conkle, Toward a General Theory of the Establishment Clause, 1136. 47. James J. Knicely, First Principles and the Misplacement of the Wall of Separation, 52 Drake L. Rev. 171, 173 (2004).

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incorporation of the Establishment Clause in Everson v. Board of Education, the Supreme Court began shifting its First Amendment jurisprudence in an increasingly nationalized direction, leaving less and less room for the states to design and implement their own policies.48 But the federalism component of the First Amendment Establishment Clause has recently been resurrected by Justice Clarence Thomas, who, in his concurring opinion in Elk River School District v. Newdow, argues that the ‘‘text and history of the Establishment Clause strongly suggests that it is a federalism provision intended to prevent Congress from interfering with state’’ accommodations of religion.49 In this same vein, Justice Potter Stewart had earlier recognized that ‘‘the establishment clause was primarily an attempt to insure that Congress not only would be powerless to establish a national church but would also be unable to interfere with existing state establishments.’’50 If, as Justice Thomas argues, the incorporation of the Establishment Clause through the Fourteenth Amendment (and hence its applicability to the states) should be rolled back, then the states would certainly have far more latitude to accommodate religion than current doctrine allows. This approach would obviously coincide with the framers’ intent that states should be free to construct their own church-state relations and that states should be able to experiment with those relations to fulfill the needs and desires of their constituencies. As James Madison argued, there ‘‘is not a shadow of right in the federal government to intermeddle with religion.’’51 And James Iredell, later to become a Justice of the Supreme Court, explained that the proposed Establishment Clause left the matter of religion ‘‘to the operation of [each state’s] own principles.’’52 In recent times, the Court has appeared as if it might be about to return religion to the states, to decentralize this area of liberty. 48. 330 U.S. 1 (1947). 49. 124 S. Ct. 2301, 2330 (2004) (Thomas, J., concurring). 50. School District of Abington Township v. Schempp, 374 U.S. 203, 309 (1963) (Stewart, J., dissenting). 51. 3 The Debates in the Several State Conventions on the Adoption of the Federal Constitution 330, ed. Jonathan Elliot (Elliot’s Debates). 2d ed. (1826). 52. 4 Elliot’s Debates, at 194–95.

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In Zelman v. Simmons-Harris, for instance, the Supreme Court upheld the constitutionality of an Ohio school-voucher program, in which 96 percent of the vouchers were used by students enrolling in religious schools.53 The Court based its decision on the grounds that the program facilitated true private choice by giving voucher aid directly to a broad class of citizens without consideration of religion. It also recognized that religious organizations served a vital and unique function, able to achieve certain social goals that the state cannot. Prompting the voucher program were the failures of the Cleveland public school system, where only 10 percent of ninth graders could pass a proficiency test and more than two-thirds of high school students failed to graduate. In Zelman, Justice Thomas observed that ‘‘failing urban public schools disproportionately affect minority children most in need of educational opportunity.’’54 He warned that the ‘‘failure to provide education to poor urban children perpetuates a vicious cycle of poverty, dependence, criminality, and alienation that continues for the remainder of their lives.’’55 He then cited data from Cleveland showing that religious schools are more educationally effective than public schools. Whereas 95 percent of the eighth graders in Catholic schools passed a state reading test, only 57 percent of their public school peers did; similarly, whereas 75 percent of the Catholic school students passed a mathematics proficiency test, their public school peers had only a 22 percent passage rate. Furthermore, the average cost of sending a child to a religious school is considerably less than the cost of public school.56 In the Cleveland program, for example, religious schools received a maximum of $2,250 per student in public funding, whereas public schools were allocated $7,746 per student.57 Studies have revealed that most urban public school students around the nation are failing to perform at even the most basic level of achievement and that minority parents strongly support school choice, with 60 percent saying they would switch their chil53. 54. 55. 56. 57.

536 U.S. 639 (2002). 536 U.S. at 681–82. Id. at 683. Joseph Viteritti, Reading Zelman, 76 S. Cal. L. Rev. 1105, 1163 (2003). Id. at 1164.

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dren from public to private schools if money were not an obstacle.58 An investigation commissioned by the National Center for Education Statistics reveals that religious-affiliated schools produce better cognitive outcomes (even after taking account of the family backgrounds of the students), provide a safer educational environment, and have less racial segregation than do public schools.59 It was also found that minority students who attend Catholic schools do better than their public school peers, and that disadvantaged minority students who attend Catholic high schools are more likely to graduate, go on to college, and earn a degree. Other studies cited by education expert Joseph Viteritti have reinforced this finding that Catholic schools can be an effective vehicle for educating the same minority populations that have not been well served by urban public schools. Whereas Zelman suggested that the Court might be rethinking its Establishment Clause jurisprudence to increase freedom and flexibility at the local level, the decision in Employment Division v. Smith likewise indicated that the Court was reshaping its free exercise doctrines to shift the matter of religion back to the states.60 Prior to Smith, the rule was that any state-imposed burdens on religious exercise presumptively violated the free exercise clause and that government could sustain those burdens only by demonstrating a compelling government interest.61 But Smith replaced this rule with one stating that neutral laws of general applicability are not unconstitutional, even if they do burden religious exercise. Thus, Smith largely leaves regulation of religious practices to the states, as long as they regulate such practices with neutral, generally applicable laws. Smith was followed by City of Boerne v. Flores, in which the Court overruled a congressional attempt to restore the pre-Smith rule through the Religious Freedom Restoration Act (rfra) of 1993.62 Contrary to the more deferential test outlined in Smith, 58. Joseph P. Viteritti, Choosing Equality: School Choice, the Constitution, and Civil Society (Washington, D.C.: Brookings Institution Press, 1999), 7, 84. 59. Id., 80. 60. 494 U.S. 872 (1990). 61. See Sherbert v. Verner, 374 U.S. 398 (1963); Wisconsin v. Yoder, 406 U.S. 205 (1972). 62. 521 U.S. 507 (1997); 42 U.S.C. §2000 bb et seq. (1993).

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rfra required courts to use strict scrutiny in determining whether a governmental regulation violated the free exercise clause. In City of Boerne, a zoning ordinance requiring permission to make structural changes in a designated historical area was enforced by the Boerne city council against a Catholic church wishing to expand its facilities to accommodate a growing congregation. After permission to modify the church building was denied, the church filed suit, claiming that the city could not demonstrate a compelling reason, as mandated by the rfra, for enforcing its zoning ordinances against the church. Striking down the rfra as unconstitutional, the Court ruled that when Congress acts under Section 5 of the Fourteenth Amendment it cannot expand the scope of rights or create new rights. According to the Court, Congress’s power under Section 5 gives it only the authority to remedy violations of constitutional rights, not to create or expand substantive constitutional rights. Because rfra expanded religion clause mandates beyond those outlined by Smith, it exceeded the scope of Congress’s authority.63 Although Boerne seemed to uphold federalism principles by ruling that the rfra exceeded Congress’s enumerated power under Section 5 of the Fourteenth Amendment, the decision may actually have been influenced more by the Court’s desire to combat a congressional challenge to its power of constitutional interpretation. The Court may well have viewed the case through the lens of judicial supremacy and may have felt compelled to put down what it saw as a congressional rebellion.64 As such, the ruling may not reflect a decentralized judicial approach to rights.

A Centralized Free Speech Doctrine in a Time of Divergent, Pervasive Media Only with respect to obscenity has the Court held that First Amendment speech rights should not be defined by uniform, centralized standards. The Miller doctrine looks to local community 63. Id. at 536. 64. Stephen Gardbaum, The Federalism Implications of Flores, 39 Wm. & Mary L. Rev. 665,669 (1998).

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standards to determine what is so offensive as to constitute obscenity.65 Relying on principles of federalism, the Miller Court has stated that ‘‘our nation is simply too big and too diverse for this Court to reasonably expect that such standards could be articulated for all 50 States in a single formulation.’’ Miller recognized that people ‘‘in different States very in their tastes and attitudes, and this diversity is not to be strangled by the absolutism of imposed uniformity.’’ As the Court stated, it is ‘‘neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City.’’ This rejection of national standards was reasserted in Hamling v. United States, where the Court held that the community standards test for federal obscenity prosecutions was local, not national, and that the relevant geographic community could be even smaller than that of an entire state.66 But theory has not translated into practice, particularly in connection with these federalism-type concerns. First, because of the Internet and its nationalizing effect, Miller is losing its effectiveness in allowing communities to regulate obscenity according to their standards of decency. And second, the community standards focus of Miller applies only to hard-core obscenity, not to the vast amount of pornography that currently exists. Indeed, despite the Court’s opinion in Miller, which presumptively expanded the reach of governmental regulation of obscenity to include materials offensive to the moral standards of the local community, pornography ‘‘grew like weeds in a vacant lot.’’67 With the explosion of the Internet as the primary medium for pornography, the Miller community standards test has become increasingly difficult to apply. Moreover, the globalization of information over the Internet makes the enforcement of local 65. Miller v. California, 413 U.S. 15, 24, 30–33 (1973). 66. 418 U.S. 87, 105 (1974). 67. William N. Eskridge, Jr., Some Effects of Identity-Based Social Movements on Constitutional Law in the Twentieth Century, 100 Mich. L. Rev. 2062, 2346 (2002) (stating that eventually obscenity cases stopped coming to the courts, partly because local censorship attempts were ‘‘easily evaded by national channels of communication such as mail service, telephone, and the internet’’).

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community standards almost impossible. In Ashcroft v. aclu, Justice Sandra Day O’Connor rejected the use of community standards for the Internet.68 She argued that only a national standard could be used to regulate Internet obscenity. Justice Stephen Breyer agreed, stating that the relevant standard for the Internet was a national one.69 However, as Justice Clarence Thomas argued, ‘‘if a publisher wishes for its material to be judged only by the standards of particular communities, then it need only take the simple step of utilizing a medium that enables it to target the release of its material into those communities.’’ Aside from the effects of the Internet, developments in privacy law may also be eroding the enforcement of community standards regarding obscenity. In Lawrence v. Texas, the Court dealt a severe blow to any legal expression of community morality.70 Lawrence essentially created a nationalized standard of sexual privacy that trumps any conflicting community morals standards. If, as Lawrence stated, decisions concerning sexual activity, such as sodomy, are at the core of individual autonomy protected by the Due Process Clause, then communications about sexual activities may also have to receive similar constitutional protections, regardless of how offensive or obscene those communications are by community standards. If the Court’s ruling that the Constitution ‘‘gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex’’ is extended to sexual communications, then obscenity regulation could be supported only if injuries other than moral harms are involved.71 Justice Antonin Scalia in fact observed that Lawrence ‘‘effectively decrees the end of all morals legislation.’’72 68. 535 U.S. 564, 587 (2002) (O’Connor, J., concurring). This rejection coincided with Judge Leonard Garth’s ruling in the following case, in which he disavowed the use of contemporary community standards entirely for the Internet: aclu v. Reno, 217 F. 3d 162, 166. 69. Id. at 590 (Breyer, J., concurring). 70. 539 U.S. 558 (2003). 71. Lawrence v. Texas, 539 U.S. 558, 572 (2003). Justice Kennedy further wrote that because ‘‘the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.’’ Id. at 577. 72. Id. at 599, 590 (Scalia, J., dissenting) (arguing that state laws against obscenity are called into question by Lawrence).

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The Court’s centralized approach to individual rights can be seen in its treatment of legislative attempts to regulate Internet indecency. No matter how pornographic the material, as long as it falls just short of obscenity, the Court has struck down attempts to regulate it for the sake of child protection, using the single nationalized standard of whether those regulations in any way restrict adult access to the material. The Internet is capable of conveying an almost unlimited amount of hateful, pornographic, and violent speech. Almost 70 percent of the current traffic on the Internet is adult-oriented material, and approximately 200 new pornographic Web sites are created each day.73 This is a particularly worrisome problem, since ‘‘ninety percent of children between the ages of five and seventeen now use computers.’’74 Moreover, studies have shown that most adult-oriented commercial Web sites do not use age verification measures, and that about a quarter of them employ practices like mouse trapping, which keep users from exiting the site.75 Approximately three quarters of them displayed adult content on the first page, which was accessible to everyone. In addressing the problem of Internet pornography, Congress has tried on several occasions to construct barriers that might seal off sexually explicit material from children. In 1996, it passed the Communications Decency Act, which prohibited the transmission over the Internet of indecent material to anyone under the age of 18. This prohibition, however, was ruled unconstitutional in Reno v. ACLU.76 Even though acknowledging a compelling interest in protecting the psychological well-being of minors by shielding them from indecent messages, the Court downgraded this interest when it conflicted with the rights of adults to access, burden-free, such messages.77 73. Elizabeth M. Shea, The Children’s Internet Protection Act of 1999: Is Internet Filtering Software the Answer? 24 Seton Hall Legis. J. 167, 174 (1999). 74. Mitchell P. Goldstein, Congress and the Courts Battle over the First Amendment: Can the Law Really Protect Children from Pornography on the Internet? 21 J. Marshall J. Computer & Info. L. 141,143 (2003). 75. Id. at 144. 76. 521 U.S. 844, 874–85 (1997) (holding that the Act’s provisions were unconstitutionally vague and burdensome to the First Amendment rights of adults). 77. v. ACLU, 521 U.S. 844, 869 (1997).

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Next, Congress passed the Child Online Protection Act (copa), which tried to address the concerns articulated in Reno by forcing commercial vendors of pornographic Internet material to require credit cards for access to their sites. This statute forbade any person from using the Internet to communicate for commercial purposes any material that is harmful to minors. But the Court struck down this law in Ashcroft v. ACLU, on the grounds that copa could also restrict adult access to such material.78 Later, with the Child Pornography and Prevention Act, Congress tried to expand the federal prohibition on child pornography to include computer-generated images of minors engaging in sexually explicit conduct. But again, this law was overturned in Ashcroft v. Free Speech Coalition.79 In overturning efforts to regulate indecent speech accessible to children, courts cite the rule that in seeking to protect youth the government cannot ‘‘reduce the adult population to reading only what is fit for children.’’80 But this principle ignores reality: that so much of the violent and sexually graphic speech today is aimed not at adults but at children. There has been a steadfast refusal by the Court to allow for any decentralization regarding the individual-rights doctrines governing indecency and pornography. This refusal stifles any flexible or innovative response by a democratic community to whatever unique problems it may be encountering with respect to the effect of such speech on the community and its children. Current doctrines do not take into account society’s desire to regulate certain moral or cultural harms. For instance, some pornography could be considered morally bad because it encourages sexual promiscuity or narcissistic personality characteristics, or causes the reader to regard other people as mere objects of sexual interest, whose feelings do not matter.81 Moreover, for many parents, a desire to shape their children’s characters through the avoidance of pornography is itself an important aspect of human liberty that deserves respect.82 78. 535 U.S. at 586. 79. 535 U.S. 234 (2002). 80. v. Michigan, 352 U.S. 380, 383 (1957). 81. See, e.g., Andrew Koppelman, Does Obscenity Cause Moral Harm? 105 Colum. L. Rev. 1635, 1672, 1666–67 (2005) (stating that ‘‘moral harm exists’’). 82. Id. at 1673.

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In Denver Area Educational Telecommunications Consortium, Inc. v. FCC, the Court addressed the constitutionality of regulations in the Cable Act of 1992 requiring cable operators to place indecent programs on a separate, blocked channel that could be unblocked only after receiving a subscriber’s written request for access.83 In holding these regulations unconstitutional, the Supreme Court focused on the inconveniences to would-be viewers of indecent programming, including, for instance, the viewer who might want a single show, as opposed to the entire channel, or the viewer who might want to choose a channel without any advance planning (the ‘‘surfer’’), or the one who worries about the danger to his reputation that might result if he makes a written request to subscribe to the channel. However, none of these burdens presented insurmountable obstacles. Each of these types of viewers could get access to the desired programming by simply following the established procedures. Furthermore, even though the Court recognized that the purpose of the regulations was to protect minors, that it was a compelling purpose, and that the regulations applied only to sexual material (and not the kind of vitally important political information present, for instance, in the Pentagon Papers case),84 the Court still struck them down as being too burdensome on adults wishing to view such programming. Similar to the one-sided focus of Denver Area, the Court in United States v. Playboy Entertainment Group refused to accommodate the needs of audiences confronted with unwanted offensive speech.85 Playboy involved a challenge to a provision in the Telecommunications Act of 1996 that required cable television operators providing channels primarily dedicated to sexually oriented programming either to fully scramble or otherwise fully block those channels or to limit their transmission to the hours between 10 p.m. and 6 p.m., when children are unlikely to be among the viewing audience. Even before the enactment of this provision, cable operators used signal scrambling to limit access to these ‘‘premium’’ programs to paying customers. But this scrambling was imprecise and 83. U.S. 727 (1996). 84. New York Times v. U.S., 403 U.S. 713 (1971). 85. United States v. Playboy Entertainment Group, Inc., 529 U.S. 803 (2000).

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often led to signal bleed; thus, the time-channeling regulation was intended to shield children from hearing or seeing images resulting from such signal bleed. Yet even though the Court recognized the strong state interest in shielding young viewers from such programming, it still struck down the law, holding that it constituted too great a burden on adult viewers. In his Playboy dissent, Justice Stephen Breyer focused on the issue of relative burdens and on the Court’s rigid application of an individual-rights doctrine that squelched any community attempt to deal with a serious problem. First, he noted that the law in question placed a burden on adult programmers, not a ban.86 Second, he observed that the law applied only to channels that broadcast virtually 100 percent sexually explicit material. And third, he recognized that, because of signal bleed, approximately 29 million children were potentially exposed each year to sexually explicit programming. To Justice Breyer, where tens of millions of children have no parents at home after school, and where children may spend afternoons and evenings watching television outside the home with friends, the time-channeling law offered an independent protection for a large number of families. As he argued, the First Amendment was not intended to leave millions of parents helpless in the face of media technologies that bring unwanted speech into their children’s lives. The courts have gone to great length to carve out special constitutional protections for children.87 Because of the importance of the child-rearing process, the constitutional demands of free speech must be ‘‘applied with sensitivity . . . to the special needs of parents and children.’’88 The Supreme Court has specifically ruled that government has an interest in facilitating parental control over what their children see and hear.89 As the Supreme Court has stated, a democratic government requires ‘‘the healthy, well-rounded 86. According to Justice Breyer, ‘‘[a]dults may continue to watch adult channels, though less conveniently, by watching at night, recording programs with a VCR, or by subscribing to digital cable with better blocking systems.’’ Id. at 845. 87. See New York v. Ferber, 485 U.S. 747, 757 (1982); Ginsberg v. New York, 390 U.S. 629, 642 (1968) (upholding requirements that restricted the distribution even of printed matter to children). 88. Bellotti v. Baird, 443 U.S. 622, 634 (1979). 89. Pacifica, 438 U.S. at 749–50.

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growth of young people into full maturity as citizens, with all that implies.’’90 Consequently, where children are involved, freedoms of speech may have to be ‘‘balanced against society’s countervailing interest in teaching the boundaries of socially appropriate behavior.’’91 This balancing, however, requires flexibility at the local level.92 But the Court’s strictly nationalized First Amendment doctrine prevents such flexibility. Moreover, the doctrine basically casts aside all social interests in child protection whenever those interests come in conflict with the access rights of adults. Few measures shielding minors from indecent speech are upheld if they have any restraining effect on the ability of adults to access such speech.

Enforcing a Nationalized View of Individual Autonomy Privacy has been a particularly prominent area in which the Court has used centralized mandates concerning individual rights to dictate policy choices and social values to every community in the nation. In its privacy decisions, the Court has struck down a host of state regulations and in doing so has pronounced the meaning of personal dignity and autonomy for all Americans. Moreover, it has decided that constitutional privacy is to be defined almost exclusively in terms of sexual activity freedoms. Consequently, under the Court’s privacy rulings, a judicially articulated national value on sexual privacy can trump all other community values. The Court defines privacy as involving those individual choices vital to personal dignity and autonomy. The types of choices that qualify as those vital to human development, according to the 90. Prince v. Massachusetts, 321 U.S. 158, 168 (1944). 91. Bethel School District No. 408 v. Fraser, 478 U.S. 675 (1986). 92. Such flexibility is sorely lacking, however, as illustrated by the continual yet unsuccessful efforts of states and localities to regulate the distribution of violent and sexually explicit video games to children. Despite federal court after federal court striking down such attempted regulations, state after state and locality after locality keep trying to regulate, because of their beliefs in the harms caused by such games. See Patrick M. Garry, Defining Speech in an Entertainment Age: The Case of First Amendment Protection for Video Games, 57 SMU L. Rev. 139 (2004); John M. Broder, ‘‘Bill Is Signed to Restrict Video Games in California,’’ The New York Times (October 8, 2005), A8 (describing legislation outlawing ‘‘the sale to teenagers of electronic games featuring reckless mayhem and explicit sexuality’’).

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Court, are the choice to engage in sexual conduct and the choice to have an abortion. Even though human privacy is being assaulted every day by technologies allowing nearly unlimited opportunities to collect and disseminate personal information, the Court has not extended its privacy concerns to those conditions or concerns. Indeed, individual claims against media or technological invasion of privacy have not been well received by the Court. In fact, through its First Amendment rulings, the Court has often protected those very actors and conditions that contribute most to this erosion of personal privacy. Another paradox of the Court’s privacy rulings is that they presume that judges have the ability and duty to determine those personal choices that define human life and personal dignity. Privacy law also presumes that the courts can adequately draw the fine lines between individual privacy, democratic values, and social policies. And finally, the constitutional doctrines on privacy presume that a centralized judicial body can better determine the parameters of individual autonomy than can any democratically elected legislature. The latest significant pronouncement from the Supreme Court relating to the Court’s privacy jurisprudence came in Lawrence v. Texas,93 which overruled Bowers v. Hardwick94 and held that a state statute criminalizing same-sex sodomy violated the Fourteenth Amendment’s Due Process Clause. Lawrence built upon the foundation initially laid in Griswold v. Connecticut, which announced a right of privacy belonging to married couples wishing to use contraceptives.95 In Roe v. Wade and Carey v. Population Services International, the Court applied the right of privacy to a woman’s decision to abort her unborn fetus and to a minor’s freedom to use contraceptives.96 And in Planned Parenthood of Central Missouri v. Danforth, the Court overturned statutory restrictions on a minor’s right to obtain an abortion, ruling that ‘‘the right to privacy in 93. Lawrence v. Texas, 539 U.S. 558 (2003). 94. Bowers v. Hardwick, 478 U.S. 186 (1986). 95. 381 U.S. 479 (1965). 96. 410 U.S. 113 (1973) (holding that women have a constitutional right to choose an abortion); 431 U.S. 678 (1997) (overturning a state statue forbidding the distribution of contraceptives to persons under 16 years of age).

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connection with decisions affecting procreation extends to minors as well as to adults.’’97 Later, in upholding Roe, the Court in Planned Parenthood v. Casey equated the abortion decision with ‘‘the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.’’98 In Carey v. Population Services International, which overturned a statute that banned the distribution of contraceptives to minors as part of a state policy against teen pregnancy, the Court saw the right of privacy to include ‘‘the interest in independence in making certain kinds of important decisions.’’99 There is a significant debate among constitutional scholars as to whether Lawrence involved a right of privacy or a liberty interest, both of which are based on the Due Process Clause. As the Court framed it, the question was ‘‘whether petitioners’ criminal convictions for adult consensual sexual intimacy in the home violates their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment.’’100 Some scholars categorize Lawrence as a privacy case: ‘‘Now that Lawrence has overruled Bowers, the question is no longer whether there is a right to sexual privacy, but rather, what specific aspects of sexual privacy cannot be burdened by state regulation.’’101 But others see it as a case involving liberty.102 In his Lawrence dissent, for instance, Justice Antonin Scalia noted that the majority did not describe the right to sexual intimacy as a fundamental right, but only described petitioners’ conduct as ‘‘an exercise of their liberty.’’103 However, casting Lawrence as a liberty case calls its reasoning into question. As Randy Barnett argues, since the Court did not identify the lib97. 428 U.S. 52, 74 (1976). 98. 505 U.S. 833, 851 (1992). 99. 431 U.S. 678, 684 (1977) (overturning a state law banning the distribution of contraceptives to minors under 16 years of age). 100. 539 U.S. at 564. 101. Hermann, Pulling the Fig Leaf off the Right of Privacy, at 956; see also Dale Carpenter, Is Lawrence Libertarian? 88 Minn. L. Rev. 1140 (2004) (seeing Lawrence as a privacy case). 102. Randy E. Barnett, Justice Kennedy’s Libertarian Revolution, in Cato Supreme Court Review: 2002–2003, at 33 (James L. Swanson, ed., 2003). 103. Lawrence, 539 U.S. at 586.

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erty involved as a fundamental right, it should have given the lowest level of scrutiny under the rational basis test.104 Yet despite the grounds on which it relied, whether privacy or liberty, the Lawrence Court ended up giving explicit recognition to a right of sexual intimacy, which it had been unwilling to make in previous cases.105 Furthermore, even though the Court did not specifically declare homosexual sodomy a fundamental right, it nonetheless seemed to apply the same kind of scrutiny that is usually given to fundamental rights. As Justice Scalia argued in dissent: ‘‘Though there is discussion of fundamental propositions and fundamental decisions, nowhere does the Court’s opinion declare that homosexual sodomy is a fundamental right under the Due Process Clause.’’106 In addition, even though the Court did not specifically state that it was using the strict scrutiny test, it did nonetheless strike down the state law in question—a result that under the substantive due process approach almost never happens for any test or standard other than strict scrutiny. For this reason, many scholars such as Professor Laurence Tribe have described Lawrence as essentially a strict scrutiny case.107 As recognized in Bowers, a fundamental right is one ‘‘deeply rooted in this Nation’s history and tradition.’’108 Recognizing that it borders on illegitimacy whenever dealing with constitutional rights or powers having little or no cognizable grounding in the text of the Constitution, the Bowers Court refused to find new fundamental rights embedded in the Due Process Clause. According to Bowers, fundamental rights arise not from judges but from the historic and traditional values of a democratic community. Consequently, after examining whether American history and tradition had created a fundamental right to engage in sodomy, the Bowers Court found that prohibitions against such conduct had ancient 104. Randy Barnett, Grading Justice Kennedy, 89 Minn. L. Rev. 1582, 1583 (2005). 105. Hermann, Pulling the Fig Leaf off the Right of Privacy, 54 DePaul L. Rev. 909, 928, 930 (2005). 106. Lawrence, 539 U.S. at 586. 107. Laurence H. Tribe, Lawrence v. Texas: The Fundamental Right That Dare Not Speak Its Name, 117 Harv. L. Rev. 1893, 1917 (2004). 108. 478 U.S. at 191–92.

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roots and that sodomy had been criminalized by many states since the colonial era.109 Based on this finding, the Court detected no constitutional basis for a fundamental right to engage in homosexual sodomy. Seventeen years later, however, the Court reversed itself. In Lawrence, Justice Anthony Kennedy conducted the same kind of historical examination conducted in Bowers, but this time found no national history or tradition of condemning homosexual sodomy. As Justice Kennedy wrote, history and traditions ‘‘show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.’’110 But this vague assertion does not even begin to define what ‘‘matters pertaining to sex’’ are to receive such ‘‘substantial protection.’’ Furthermore, Justice Scalia’s dissent argued that ‘‘an emerging awareness does not establish a fundamental right.’’ Scalia also noted that, contrary to the majority’s ruling that the Texas antisodomy law had no rational basis, countless judicial decisions and legislative enactments have relied on the ancient proposition that a democratic majority’s belief that certain sexual behavior is immoral does constitute a rational basis for regulation. He called the decision an example of judicial activism that seeks to declare homosexuality a fundamental right, even though ‘‘the Court does not have the boldness’’ to say so. Perhaps the most far-reaching consequence of Lawrence involves its future effect on morals laws of any kind. In Lawrence, the Court adopted a variation of the substantive due process doctrine asserted by Justice Stevens in his Bowers dissent. This variation, which the Court had previously avoided, held that just because a democratic majority has historically viewed a particular practice as immoral is not a sufficient reason for regulating that practice. Justice Scalia argued that Lawrence has put into jeopardy all morals laws—for example, those against bigamy, same-sex marriage, adult incest, and obscenity. Constitutional scholar Steven Calabresi agrees: ‘‘Lawrence could foreshadow the end of all morals laws.’’111 But if 109. Bowers, 478 U.S. at 190. 110. Lawrence, 539 U.S. at 571–72. 111. Steven Calabresi, The Libertarian-Lite Constitutional Order and the Rehnquist Court, 93 Geo. L. J. 1023, 1044 (2005) (arguing that Lawrence is ‘‘one of the most strikingly libertarian opinions the Court has ever issued’’).

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this is the result of Lawrence, it is one that contradicts historical precedent. Courts have long supported the ability of states to pass morals laws. Justice John Marshall Harlan argued that ‘‘society is not limited in its objects only to the physical well-being of the community, but has traditionally concerned itself with the moral soundness of its people as well.’’112 Indeed, there is significant judicial precedent supporting the power of legislatures to regulate aspects of social morality. The Bowers Court, for instance, acknowledged the validity of laws based on notions of social morality and indicated that social morality constitutes a legitimate state interest. As the Court warned, ‘‘If all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed.’’113 Even subsequent to Lawrence, courts have expressed doubt about Lawrence’s condemnation of morals laws, noting that the Supreme Court has frequently stated that ‘‘laws can be based on moral judgments.’’114 As the Eleventh Circuit observed: ‘‘One would expect the Supreme Court to be manifestly more specific and articulate than it was in Lawrence if now such a traditional and significant jurisprudential principle has been jettisoned wholesale.’’115 Another court concluded that if Lawrence was viewed as banning considerations of social morality from public lawmaking, ‘‘virtually our entire criminal code would be invalidated, because it is based on social conceptions of ‘right’ and ‘wrong’ behavior.’’116 Contrary to the Court’s pronouncements in Casey and Lawrence, personal autonomy could depend as much on the definition of self in relationship to the community as on the definition of self as a lone individual. Laws based on social morality are a necessary complement or counterweight to an individualistic legal culture. As Francis Fukuyama argues, a community is weakened if it can only 112. Poe v. Ullman, 367 U.S. 497, 546 (1961) (Harlan, J., dissenting) (observing that laws relating to morality ‘‘form a pattern so deeply pressed into the substance of our social life that any Constitutional doctrine in this area must build upon that basis’’). 113. Bowers, 478 U.S. at 196 (stating that the law is ‘‘based on notions of morality’’). 114. Williams v. Attorney General of Alabama, 378 F. 3d 1232, 1237 (11th Cir. 2004). 115. Id. 116. Williams v. King, 420 F. Supp. 2d 1224, 1248 (N. D. Ala. 2006).

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protect rights and not express any collective moral judgments defining the duties owed by individuals to society.117 Fukuyama claims that the decline of community life in America, precipitated by an obsessively individualistic orientation, creates a society of self-absorbed individuals involved in the pursuit of private comforts and devoid of any public spiritedness. Plato made the same argument centuries earlier, observing that the public must have the right ‘‘to declare what standards are to be observed as virtuous.’’118 Aristotle likewise recognized that the law should serve to direct people toward the community’s view of virtue.119 A problem with the Court’s individual-autonomy-trumps-community-morals approach in Lawrence is that it has no logical boundary. The Court downgrades morals laws, but only in connection with those laws pertaining to sexual activity. Other kinds of moral values seem to present no problem. For instance, there seems to be no legal problem with a law based on the public’s moral objection to people engaging in sadistic acts of cruelty toward animals in the privacy of their own homes. Nor is there a problem with sexual harassment laws that reflect a majoritarian morality. The Court’s privacy doctrine also promotes the illusion that individuals are completely independent entities, entitled to exercise their fullest personal liberties without concern for others.120 This illusion views the individual as completely separate from society, 117. See Francis Fukuyama, The End of History and the Last Man (New York: Free Press, 1992), 323. 118. Patrick Devlin, The Enforcement of Morals (New York: Oxford University Press, 1965), 89. 119. Thomas Pangle, The Ennobling of Democracy: The Challenge of the Postmodern Age (Baltimore: Johns Hopkins University Press, 1992), 114. On a more contemporary level, Professor Christopher Wolfe argues that the absence of morals laws ‘‘may make certain practices more widespread, and thereby contribute to people’s sense that such conduct is normal or at least unobjectionable, and it may help shape people’s ideas about whether certain conduct is legitimate, since society withholds any negative public judgment about that conduct.’’ (Christopher Wolfe, Public Morality and the Modern Supreme Court, 45 Am. J. Juris. 65, 68.) Indeed, Professor Wolfe’s insights are further bolstered by the fact that the judicial assault on public morals laws is only 40 years old, and in that relatively short span of time the media have become awash with violent and sexually explicit programming, families are breaking up at an alarming rate, and drug use has exploded, as have out-of-wedlock pregnancies. 120. Robert Nagel, The Implosion of American Federalism (New York: Oxford University Press, 2001), 149.

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owing no duties to society and not dependent on society for his or her personal security and liberty.

Judicial Supremacy and Substantive Due Process The modern Court’s use of substantive due process calls into question the proper balance between legislative and judicial power. In 1824, Chief Justice John Marshall expressed the prevailing view of the Court’s role: ‘‘Judicial power is never exercised for the purpose of giving effect to the will of the judge; always for the purpose of giving effect . . . to the will of the legislature.’’121 Marshall also suggested that, on doubtful questions of constitutionality, the judgments of the political branches ‘‘ought to receive a considerable impression.’’122 Since Griswold, the Due Process Clause has served as the Court’s ‘‘chosen vessel’’ for the protection of unenumerated rights.123 Under its substantive due process approach, the Court recognizes a right as fundamental when it finds that right supported by tradition. But tradition can be a vague concept. John Hart Ely, for instance, argued that ‘‘people have come to understand that tradition can be invoked in support of almost any cause.’’124 For this reason, the substantive due process approach has been criticized as allowing judges to impose their own personal views at the expense of the democratic process. As Justice William Rehnquist wrote, judges can use substantive due process to effectively prevent the legislatures from considering important issues of self-governance.125 With substantive due process, judges must first decide whether a certain right is fundamental. Yet despite the Court’s use of history and tradition to make this determination, the definition of funda121. Charles L. Black Jr., The People and the Court (New York: Macmillan, 1960), 159–69. 122. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 401 (1819). 123. Isaac Adams, Growing Pains: The Scope of Substantive Due Process Rights of Parents of Adult Children, 57 Vand. L. Rev. 1883, 1889 (2004). 124. John Hart Ely, The Supreme Court, 1977 Term—Forward: On Discovering Fundamental Values, 92 Harv. L. Rev. 5, 39 (1978) (noting that the problems arising from relying on tradition involve those of cultural geography, time, competing tradition, and levels of generality). 125. See Furman v. Georgia, 408 U.S. 238, 470 (Rehnquist, J., dissenting).

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mental right seems to be a matter of judicial picking-and-choosing. There seems to be little logic in the Court’s previous determinations of what qualifies as a fundamental freedom, unless one simply concludes that anything connected with sexual activity has a much greater chance of receiving fundamental rights status than does any other human act or decision. In Washington v. Glucksberg, the Court declined to declare physician-assisted suicide a fundamental liberty right.126 In doing so, the Court emphasized the need to resist expanding the scope of substantive due process. This was an echo of Justice Harlan, who in a pre-Griswold case involving state restrictions on contraceptives rejected the kind of expansive jurisprudence needed to arrive at a constitutional right of privacy.127 Heeding Justice Harlan’s advice, the Court in Glucksberg upheld the state of Washington’s ban on assisted suicide, despite Justice Scalia’s admission in an earlier case that there was little difference between refusing medical treatment and physician-assisted suicide.128 Thus, in Glucksberg the Court found no substantive due process right to physician-assisted suicide, even though the Court in Cruzan had earlier stated that the ‘‘choice between life and death is a deeply personal decision’’ in which the ‘‘Due Process Clause protects an interest in life as well as an interest in refusing life-sustaining medical treatment.’’129 By recognizing the dangers that substantive due process posed, the Glucksberg Court refused to transfer an important issue from the political process to the judiciary. The Court noted that throughout the nation, ‘‘Americans are engaged in an earnest and profound debate about the morality, legality, and practicality of physicianassisted suicide [and o]ur holding permits this debate to continue, as it should in a democratic society.’’130 And as Chief Justice Rehnquist suggested, a silencing of this political debate through a premature judicial finding of a constitutional right to assisted suicide 126. 521 U.S. 702, 735 (1997) (rejecting due process challenges to Washington’s law banning assisted suicide). 127. Poe v. Ullman, 367 U.S. 497, 545–46 (1961) (Harlan, J., dissenting). 128. See Cruzan v. Director, Mo. Dept. of Health, 497 U.S. 261, 293–94 (1990) (Scalia, J., concurring in the holding that a competent person has a constitutional right to refuse lifesaving measures). 129. 497 U.S. at 281. 130. Glucksberg, 521 U.S. at 735.

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would prove damaging to democracy.131 According to the Chief Justice’s reasoning, the only lasting and workable solution to modern society’s questions about end-of-life matters can occur if public debate is allowed to develop into legislative action.132 Substantive due process cases require the courts not just to judge the specifics of individual cases but to lay down a general rule that governs a whole society. The question is where the lines should be drawn between privacy and social morality or community values. This question—the matter of balancing interests to arrive at social policy—is best addressed by the legislative branch.133 The judiciary ‘‘is at a disadvantage in trying to ascertain facts not of the kind presented as evidence in trials.’’134 As the Court in Glucksberg warned, the substantive due process approach carries the danger of being used as a means to remove certain issues from the political process, thereby effectuating the policy preferences of individual justices.135 The Glucksberg Court distinguished its ruling from the holding in the abortion rights case of Planned Parenthood v. Casey by stating that a fundamental right involved only ‘‘those personal activities and decisions that this Court has identified as so deeply rooted in our history and traditions, or so fundamental to our concept of constitutionally ordered liberty, that they are protected by the Fourteenth Amendment.’’136 The Court also admitted that just because many of the rights and liberties protected by the Due Process Clause relate to personal autonomy does not warrant the sweeping conclusion that any and all important, intimate, and personal decisions are so protected. But the underlying question remains: How is assisted suicide so much less of a fundamental right than assisted fetal termination? Why is sodomy protected, but not prostitution? Why doesn’t the right of privacy extend to polygamy or the use of recreational drugs? 131. Id. at 716–19. 132. Mark Rahdert, In Search of a Conservative Vision of Constitutional Privacy, 51 Vill. L. Rev. 859, 869 (2006). 133. Tom Campbell, Separation of Powers in Practice (Stanford: Stanford University Press, 2004), 22. 134. Id., 23. 135. Glucksberg, 521 U.S. at 720. 136. Glucksberg, 521 U.S. at 727.

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A comparison of Glucksberg with Casey and Lawrence suggests that substantive due process permits and perhaps requires a continually fluid approach to constitutional interpretations, in which each generation weaves its own cultural values into the Constitution. A comparison of the cases also indicates the heightened status given to sex by substantive due process. According to the courts, a person’s destiny and understanding of the meaning of life are uniquely tied to his or her sexual orientation and activities. Sexual activity thus becomes the key component of personal dignity, which under the Lawrence analysis seems to be more important in determining fundamental rights status than is either history or tradition. Aside from this judicial subjectivity, or perhaps because of it, substantive due process has proved to be historically unreliable. The first era of substantive due process took place from the latter part of the nineteenth century to the 1930s. During this era, defined by the Court’s decision in Lochner v. New York, property and economic rights were protected under a substantive due process approach.137 In Lochner, the Court struck down a limitation imposed by the New York state legislature on the maximum hours per week that bakers could work, explaining that the Due Process Clause gave heightened protection to one specific aspect of liberty, economic liberty (or the right of contract), because it was fundamental to the Constitution’s understanding of a free life.138 Lochner’s assertion that liberty of contract was a fundamental right protected by the Due Process Clause flowed from an earlier decision in Allgeyer v. Louisiana, in which the Due Process Clause was interpreted as protecting ‘‘the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation.’’139 Allgeyer thus linked the right of individuals to pursue ordinary trades—a right that had been developing throughout the nineteenth century—with an expansive interpretation of liberty of contract, which 137. Lochner v. New York, 198 U.S. 45, 61 (1905) (ruling that labor regulations ‘‘are meddlesome interferences with the rights of individuals’’). 138. 198 U.S. at 64–65. 139. 165 U.S. 578, 589–90 (1897).

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also had deep roots in American legal culture.140 Likewise, to the Lochner Court, liberty of contract was seen as central to a free life, a value of the highest order to be zealously protected by the Fourteenth Amendment. Economic and property rights occupied a prominent and longestablished role in constitutional history. The Constitution mentions ‘‘property’’ four times; the Fifth and Fourteenth Amendments prohibit both the federal government and the states from nullifying private property rights without providing constitutionally adequate procedures and just compensation. According to John Locke, property took precedence over all the other natural rights, for it was property that created and sustained civilization.141 A leading nineteenth-century treatise writer viewed liberty of contract as ‘‘the basis of human society.’’142 As Roscoe Pound argued, liberty of contract was not only a natural right, it guaranteed to each person an equal freedom to participate in society’s economic system.143 Indeed, the ‘‘triumph of contract represented a step away from a fixed hierarchical system in which one’s place was determined by birth and status, toward a society that allowed a person to fashion his or her own position in society.’’144 Throughout the eighteenth and nineteenth centuries, the right of contract was seen as an essential component, or expression, of individual autonomy.145 Courts not only defined liberty primarily in economic terms, but considered property as among the most important of individual rights.146 Indeed, economic rights have been closely linked with personal liberty throughout much of American history.147 The rights most identified by early nineteenth140. James W. Ely, Jr., To Pursue Any Lawful Trade or Avocation, 8 U. Pa. J. Const. L. 917, 947–48 (2006). 141. See generally John Locke, Second Treatise of Government, ed. Peter Laslett. (New York: Cambridge University Press, 1988). 142. 1 Theophilus Parsons, The Law of Contracts 3 (5th ed., 1866). 143. See Roscoe Pound, Liberty of Contract, 18 Yale L. J. 454 (1909). 144. James W. Ely, Jr., The Protection of Contractual Rights: A Tale of Two Constitutional Provisions, 1 New York University Journal of Law & Liberty 370, 372 (2005). 145. See Mark Warren Bailey, Guardians of the Moral Order: The Legal Philosophy of the Supreme Court (De Kalb: Northern Illinois University Press, 2004), 159–65. 146. Ely, To Pursue Any Lawful Trade, 950. 147. See Wayne McCormack, Lochner, Liberty, Property, and Human Rights, 1 New York University Journal of Law & Liberty 432, 473 (2005).

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century courts were largely economic in nature and reflected a widespread commitment to economic liberty and equality of opportunity.148 As the nineteenth century progressed, the right to pursue an economic occupation ‘‘steadily gained judicial solicitude at the state level.’’149 In 1894, the Supreme Court of Arkansas declared that ‘‘of all the rights of persons,’’ the right to contract was ‘‘the most essential to human happiness.’’150 And as late as 1972, the U.S. Supreme Court downplayed any ‘‘preferred position’’ that First Amendment rights would have with respect to property rights: ‘‘The dichotomy between personal liberties and property rights is a false one. . . . In fact, a fundamental interdependence exists between the personal right to liberty and the personal right to property. Neither could have meaning without the other.’’151 This heightened view of property and economic rights was particularly evident in the U.S. Supreme Court’s decision in Buchanan v. Warley, which involved a residential segregation ordinance that prevented blacks from residing in predominately white neighborhoods.152 Even though this case arose when segregation policies were prevalent in society, the Court held that the ordinance amounted to an unconstitutional deprivation of property without due process of law. In so ruling, the Court broadly defined property: ‘‘Property is more than the mere thing which a person owns. It is elementary that it includes the right to acquire, use, and dispose of it. The Constitution protects these essential attributes of property.’’153 During the Lochner era, the Court struck down nearly 200 state laws for violating the liberty of contract that was deemed to be inherent in the Due Process Clause.154 But even though liberty of 148. Ely, To Pursue Any Lawful Trade, 929, 931. 149. Id. at 944. 150. Leep v. St. Louis, Iron Mountain, and Southern Railway Co., 25 S. W. 75, 77 (Ark. 1894). 151. Lynch v. Household Finance Corp., 405 U.S. 538, 552 (1972). 152. 245 U.S. 60 (1917). 153. Id. at 74. 154. See Jeffrey Shaman, On the 100th Anniversary of Lochner v. New York, 72 Tenn. L. Rev. 455, 496–97 (2005) (arguing that ‘‘the Court made active and frequent use of the Due Process Clause to strike down laws that the Court perceived as interfering with its favorite fundamental right’’).

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contract was considered a fundamental right, protected under a substantive due process approach, this liberty was not absolute. In Adkins v. Children’s Hospital, the Court stated that there was ‘‘no such thing as absolute freedom of contract’’ and that this right ‘‘must frequently yield to the common good.’’155 Consequently, throughout the Lochner period, the Court rejected more substantive due process claims than it accepted.156 Yet even this limited application of the liberty-of-contract doctrine under the Due Process Clause of the Fourteenth Amendment was brought to an end by the constitutional revolution of the New Deal. Under pressure from President Franklin D. Roosevelt’s courtpacking plan, the Court ceased using substantive due process to strike down New Deal economic legislation.157 In West Coast Hotel v. Parrish, the Court put an abrupt end to the recognition of the liberty of contract as a right protected under the Due Process Clause.158 Writing for the Court, Chief Justice Charles Evans Hughes acknowledged that legislatures could restrict this freedom for the sake of community welfare.159 This view became so accepted that the Court never again used liberty of contract to strike down any legislation. Indeed, the Court so abandoned any constitutional protection of property rights that in Federal Power Commission v. Hope Natural Gas Company it upheld a government-imposed rate system that not only denied a company a fair return on its investment but that in fact ended up being confiscatory.160 Critics have condemned Lochner as the result of individual Justices reading their own political views into the Constitution and suppressing the judgments of democratically elected legislatures.161 It has been called the most discredited decision in Supreme Court 155. 261 U.S. 525, 546, 561 (1923). 156. McCormack, Lochner, Liberty, Property, and Human Rights, 463. 157. Shaman, On the 100th Anniversary of Lochner v. New York, 457. 158. 300 U.S. 379 (1937). 159. Id. at 392. 160. 320 U.S. 584 (1944). 161. Shaman, On the 100th Anniversary of Lochner v. New York, 457, 492. As Justice Holmes warned in his Lochner dissent, the Constitution was not intended ‘‘to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the state or of laissez faire.’’ See 198 U.S. at 75.

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history162 and ‘‘a paradigmatic example of judicial failure.’’163 Other critics have argued that the Due Process Clause should address only procedural and not substantive matters.164 Indeed, many historical examinations of the meaning of ‘‘due process’’ yield the conclusion that in 1791 the phrase ‘‘was generally understood to refer only to procedural matters.’’165 Thus, pursuant to this understanding, the Due Process Clause was not intended to create substantive rights that individuals could exert against democratically enacted laws. Instead, the early due process jurisprudence was more concerned with setting boundaries to police power than with discovering the fundamentality of certain asserted rights.166 Despite all this criticism of substantive due process as a means to protect the liberty of contract during the pre–New Deal period, it has more recently been embraced as a source of protection for another judicially created fundamental right—the right of privacy. This second stage in the history of substantive due process began in 1965 with Griswold v. Connecticut.167 As later set forth in Planned Parenthood v. Casey, in language reminiscent of the Lochner era, the Court ruled that substantive due process protects those matters and choices ‘‘central to personal dignity and autonomy.’’168 And yet, the Casey Court admitted that Lochner had been wrongly decided and had rested on ‘‘fundamentally false factual assumptions’’ about human needs.169 Even when Lochner was overruled in 1937, the 162. William M. Wiecek, Liberty Under Law: The Supreme Court in American Life (Baltimore: Johns Hopkins University Press, 1988), 123. 163. Robert C. Post, Defending the Lifeworld: Substantive Due Process in the Taft Court Era, 78 B. U. L. Rev. 1489, 1494 (1998). 164. Shaman, On the 100th Anniversary of Lochner v. New York, 476. 165. Shaman, On the 100th Anniversary of Lochner v. New York, 476. 166. Kermit Roosevelt, Forget the Fundamentals, 8 U. Pa. J. Const. L. 987, 993 (2006). 167. 381 U.S. 479 (1965). The application of the Lochner substantive due process approach to noneconomic individual rights started with Meyer v. Nebraska, 262 U.S. 390 (1923). In Meyer, the Court struck down a law prohibiting the teaching of German in private schools. According to the Court, the Due Process Clause protects not only the right of contract but also the freedom ‘‘to acquire useful knowledge, to marry, establish a home and bring up children, and to worship God according to the dictates of his own conscience,’’ as well as other ‘‘privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.’’ 168. 505 U.S. 833, 851 (1992). 169. Id. at 861–62.

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Court questioned the use of substantive due process to define liberty of contract as a fundamental right: ‘‘What is this freedom? The Constitution does not speak of freedom of contract. . . . There is not absolute freedom to do as one wills or to contract as one chooses. The guaranty of liberty does not withdraw from legislative supervision that wide department of activity which consists in the making of contracts. . . . Liberty implies the absence of arbitrary restraint, not immunity from reasonable regulations and prohibitions imposed in the interests of the community.’’170 The fate of Lochner creates real doubt as to the constitutional basis of the right of privacy. If economic rights, seen as fundamental during the early twentieth century, could be suddenly downgraded because of the changing political environment of the New Deal, then isn’t it just as likely that privacy rights, now seen as fundamental, might also suffer the same fate if political sensibilities change? Economic rights were once considered the pillar of human dignity and independence, just as noneconomic rights now seem to be. And yet, in Hawaii Housing Authority v. Midkiff, the Court acquiesced in a drastic expansion of governmental eminent domain powers when it upheld condemnation proceedings designed to combat concentration of land ownership.171 Indeed, the Court has become so indifferent to property rights that in Kelo v. City of New London it ruled that the government could take by eminent domain a group of working-class homes from their owners and turn the property over to private parties for the purpose of economic development.172 In Kelo, the homes were marked for eminent domain not because they were blighted, but because they were needed to ensure an economic development that would increase the city’s tax base. The Court’s justification for its decision rested on a very broad reading of the term ‘‘public use’’ in the Fifth Amendment’s provision that private property could be taken for public use if just compensation was paid. Writing for the Court, Justice Stevens ruled that courts should be highly deferential to government decisions to 170. West Coast Hotel Co. v. Parrish, 300 U.S. 379, 391–92 (1937). 171. 467 U.S. 229, 241–42 (1984). 172. Kelo v. New London, 125 S. Ct. 2655 (2005).

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displace one private property owner in favor of another private party in the name of economic development. But even if economic compensation is given, the first owner is not compensated for any subjective losses incurred as a result of not wanting to be forced out of a home in which he or she has many emotional attachments.173 Perhaps this was why the Kelo decision set off a storm of protest. In Connecticut, where the case originated, the governor likened the public outrage to ‘‘the Boston Tea Party.’’174 A law was enacted in South Dakota, with a unanimous vote in the state senate, that prohibited the state from using its power of eminent domain to take private property for private economic development. In November 2006, eleven states had anti-Kelo property rights initiatives on the ballot. Earlier, Louisiana voters had approved a constitutional amendment limiting government’s ability to take private property for the purpose of economic development. This reaction suggests that, contrary to the Court’s current substantive due process rulings, property rights might be even more vital to a person’s sense of autonomy than are sexual rights. Ironically, many of the Justices of the Griswold Court, which used the substantive due process approach to find a constitutional right of privacy, agreed with the demise of the Lochner type of substantive due process. Justice William Douglas specifically rejected using Lochner as a guide: ‘‘We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions.’’175 Yet that was just what the Court ended up doing. In Roe v. Wade, for instance, the Court used its notion of substantive due process to essentially legislate the complex issue of abortion.176 Just as the Lochner Court did with liberty of contract, the Griswold Court used the notion of fundamental rights to give heightened constitutional protection under a substantive due process analysis to the unenu173. Id. at 2686 (Thomas, J., dissenting). 174. See Timothy Egan, ‘‘Ruling Sets Off Tug of War over Private Property,’’ The New York Times (July 30, 2005), A1(stating that the decision ‘‘set off a storm of legislative action and protest, as states have moved to protect homes and businesses from the expanded reach of eminent domain’’). 175. Griswold, 381 U.S. at 481–82. 176. 410 U.S. 113 (1973).

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merated right of privacy. Critics of this new use of substantive due process charged the Warren and Burger Courts with ‘‘Lochnerian judicial activism,’’ putting cases such as Griswold and Roe in the same fundamental rights tradition as the much maligned Lochner.177 Under this view, substantive due process, whether used to protect liberty rights or privacy rights, employs judicially manufactured rights ‘‘not inferable from the language of the Constitution’’ to strike down popularly enacted legislation.178 Thus, according to its critics, Lochnerism is associated with the criticism that courts have ‘‘inappropriately substituted their own views for the views of the legislature as to the merit, wisdom, efficacy, and worthiness of public policy.’’179 Justice Holmes’s dissent in Lochner criticized the Court in a way that is highly relevant to the modern Court’s right to privacy cases. Holmes accused the Court of forcing a particular economic theory upon an unwilling democratic polity and of engaging in judicial activism regarding matters that have been left to the democratic process to decide.180 This activism reasserted itself in the abortion cases, where the Court could not simply declare a right to an abortion; it had to take the unprecedented step of declaring an unborn child to be a non-person. But such a declaration in a democracy should not be made by an undemocratic court of nine individuals, just as a declaration of liberty of contract should not have been used by the Court to strike down economic legislation in the early twentieth century. Moreover, by sealing off the democratic process from addressing the matter, as shown in the abortion decisions, the use of substantive due process only intensifies and prolongs the political and legal anguish over the issue. The Lochner Court’s finding that liberty of contract was necessary for individual autonomy actually had more textual support than does the more recent holding that sexual privacy is a fundamental right. The Civil Rights Act of 1866, for instance, specifically 177. David E. Bernstein, Lochner v. New York: A Centennial Retrospective, 83 Wash. U. L. Q. 1469, 1518 (2005). 178. John Hart Ely, The Wages of Crying Wolf, 82 Yale L. J. 920, 935 (1973). 179. Howard M. Wasserman, Bartnicki as Lochner, 33 N. Ky. L. Rev. 421, 429 (2006). 180. 198 U.S. at 74–76 (Holmes, J., dissenting).

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guaranteed to freedpersons the right ‘‘to make and enforce contracts’’ and to acquire property. In establishing the constitutionality of this Act, the Fourteenth Amendment secured the economic rights of the former slaves.181 As the Court concluded in the Slaughter-House Cases, the purpose of the Fourteenth Amendment was to protect the rights of newly freed slaves, not to enlarge the protections given to whites or other groups.182 Thus, a conclusion can easily be drawn that the Fourteenth Amendment was intended to protect economic rights.183 And yet, in Lochner the Court was seen as twisting the Constitution so as to arrive at a new constitutional right.184 Critics charged that the Court had usurped legislative power ‘‘in order to turn a controversial political philosophy into fundamental law of the land, that it had turned issues of social policy into issues of individual rights, and in so doing had turned the Supreme Court into the supreme policymaker overseeing social and political policy.’’185 In recent decades, many of the most notorious rulings of unconstitutionality have been based on the two simple words—due process. But clearly these two simple but vague words do not themselves give direction to the courts when deciding controversial issues of social policy. Consequently, the Due Process Clause has become a way of shifting policymaking power from legislatures to the courts—a shift that seems to reflect the assumption that legislatures are not to be trusted with highly important issues.186 However, as studies have shown, courts have proved to be disappointing venues for achieving lasting social action or reform.187 Furthermore, there is an arbitrary nature to the way in which this policymaking power is exercised. For instance, while the right to an abortion is protected as a fundamental right necessary to individual dignity and self181. James Ely, Jr., The Protection of Contractual Rights, 1 New York University Journal of Law & Liberty 370, 384 (2005). 182. Ely, To Pursue Any Lawful Trade or Avocation, 934. 183. See Herbert Hovenkamp, The Political Economy of Substantive Due Process, 40 Stan. L. Rev. 379, 394–98 (1988). 184. Paul Kens, Tradition or Change in Constitutional Law? 1 New York University Journal of Law and Liberty 404, 404 (2005). 185. Id. at 420. 186. Kermit Roosevelt, Forget the Fundamentals, 1001. 187. Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change (Chicago: University of Chicago Press, 1991), 3.

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definition, the Court has ruled that education is not a fundamental right, even though the argument could be made that education is the most important determinant to individual prosperity and autonomy.188 As one commentator has noted, ‘‘no consistent rational’’ has emerged for how and why a court can discern the existence and scope of fundamental rights under a substantive due process approach.189 A constitutional republic cannot guarantee personal happiness; it can only provide for what the framers called public happiness, by creating a constitutional structure guaranteeing every person an equal right to participate in the democratic process, free from the tyranny of government.190 The weakness of substantive due process is that it tries to achieve personal happiness at the expense of public happiness. It places within the courts issues that should be addressed in the democratic arena. According to John Hart Ely, an overactive judiciary exerts a suffocating influence on the democratic process.191 As Justice Kennedy stated, ‘‘society has to recognize that it has to confront hard decisions in neutral, rational, dispassionate debate . . . and not just leave it to the courts. . . . That’s a weak society that leaves it to courts.’’192

The Demise of the Political Question Doctrine Aside from centralizing trends in individual right jurisprudence, the increasing role and power of the Court, as well as its post–New Deal indifference to structural provisions in the Constitution, can be seen in the demise of the political question doctrine. The political question doctrine limits the Court’s jurisdiction by defining those constitutional questions that fall outside the proper 188. See San Antonio Ind. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973). 189. Brian Hawkins, The Glucksberg Renaissance, 105 Mich. L. Rev. 409, 413 (2006). 190. See Harvey C. Mansfield, ‘‘Separation of Powers in the American Constitution,’’ in Separation of Powers and Good Government, ed. Bradford Wilson and Peter Schramm (Chicago: Rowman & Littlefield, 1994), 85. 191. John Hart Ely, Democracy and Distrust (Cambridge: Harvard University Press, 1980), 86–87. 192. Jeffrey Rosen, ‘‘The Agonizer,’’ The New Yorker (November 11, 1996), 90.

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scope of judicial decisionmaking.193 It removes from the courts’ domain certain subjects that do not lend themselves to judicial resolution.194 These subjects, because they are inherently political, are more suitable for the political branches and hence are not the kind of issues that the judiciary is equipped to resolve. The doctrine reflects the realization that the legislative or executive branches may be better able to address certain fact or policy issues—issues on which courts can be poor fact finders and policymakers. Under the political question doctrine, the Court has stayed away from issues generally involving foreign policy, treaties with foreign government, presidential use of war powers, challenges to the impeachment process, and questions pertaining to the structure of politics, including various aspects of political parties.195 The roots of the doctrine reach back to Marbury v. Madison, where Chief Justice John Marshall recognized the existence of political questions that by their nature can never be resolved by the courts.’’196 In Marbury, Marshall argued that the Court’s judicial power did not extend to matters falling under the political question doctrine.197 He also provided several guideposts for determining when to invoke the doctrine: Will the fact finding required to resolve the issue be of the type normally suited to the expertise of the political branches? Are there established legal standards that can be used to decide the issue? Does the issue involve a general question of political judgment and discretion?198 This view of the political question doctrine coincided with the framers’ limited notion of judicial review. Alexander Hamilton, for instance, believed that the judiciary could nullify legislative acts 193. United States Dept. of Commerce v. Montana, 503 U.S. 442, 458 (1992) (stating that the doctrine recognizes ‘‘that a constitutional provision may not be judicially enforceable’’). 194. See Baker v. Carr, 369 U.S. 186, 217 (1962) (stating that particular issues are nonjusticiable because they fall outside the courts’ domain). 195. See Commercial Trust Co. v. Miller, 262 U.S. 51, 57 (1923); Terlinden v. Ames, 184 U.S. 270, 288 (1902); Nixon v. United States, 506 U.S. 224 (1993); O’Brien v. Brown, 409 U.S. 1 (1972); Erwin Chemerinski, Federal Jurisdiction 157–58 (3d ed., 1999) (examining judicial refusals to hear challenges to U.S. foreign policy in Vietnam, El Salvador, and the Persian Gulf). 196. 5 U.S. (1 Cranch) 137, 170 (1803). 197. 5 U.S. (1 Cranch) at 170. 198. See Marbury, 5 U.S. at 166.

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only when an ‘‘irreconcilable variance’’ existed between the Constitution and the statute.199 Justice Salmon P. Chase argued that the Court could declare a law unconstitutional only ‘‘in a very clear case.’’200 Likewise, Justice William Paterson argued that courts could strike down only those laws that presented ‘‘a clear and unequivocal breach of the constitution, not a doubtful and argumentative application.’’201 Furthermore, in the early national period, it was ‘‘anticipated and clearly foreseen’’ that many constitutional issues would never be decided by the judiciary.202 Among those issues that were outside judicial review and within the exclusive authority of the political branches were political questions. The framers’ view that political questions were outside the scope of judicial review prevailed well into the nineteenth century. As Mark Graber notes in his study of judicial review in Jacksonian America, political questions were rarely translated into judicial questions.203 Indeed, there were many constitutional debates or issues that never appeared on the judicial docket. For instance, the Court decided none of the ethnocultural controversies that arose during the pre–Civil War period, even when those controversies involved individual liberty. The federal courts never decided a case involving the rights of Masons; the courts never addressed whether the Mormons settling in Utah were free to adopt laws that conflicted with federal law; the judiciary never got involved in the call for a ‘‘united front’’ against Catholic schools and Catholic officeholders; nor did it address the nascent women’s movement.204 According to Professor Graber, the ‘‘most significant differences between judicial agendas in 1835 and in 2004 reflect differences in the extent to which constitutional questions are resolved into judicial questions.’’ In addition to the classical version of the political question doc199. The Federalist No. 78, at 467 (Alexander Hamilton) (Clinton Rossiter, ed., 1961). 200. Hylton v. United States, 3 U.S. (3 Dall.) 171, 175 (1796). 201. Cooper v. Telfair, 4 U.S. (4 Dall.) 14, 19 (1800). 202. James B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv. L. Rev. 129, 136 (1893). 203. Mark A. Graber, Resolving Political Questions into Judicial Questions: Tocqueville’s Thesis Revisited, 21 Constitutional Commentary 485, 529 (2005). 204. Id. at 515–16.

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trine, based on the text and structure of the Constitution, a prudential version of the doctrine has evolved.205 Unlike the classical version, the prudential version is not rooted in the Constitution itself, but is a judicially created doctrine used to avoid conflict with the other branches of government. As Professor Rachel Barkow notes, the political question doctrine ‘‘reflects not only the structure and text of the Constitution, but a very pragmatic determination that some questions should be decided by the political branches because of their accountability and institutional competence.’’206 This prudential version of the doctrine enables courts to avoid ‘‘rampant activism’’ by avoiding certain controversial and unprecedented matters that might in turn threaten their legitimacy and authority.207 The political question doctrine was most significantly defined and altered in Baker v. Carr, where the Court articulated a test for defining a political question from which the courts should abstain.208 According to this test, the doctrine applied to cases involving one or more of the following six criteria: (1) a textually demonstrable constitutional commitment of the issue to a coordinate political department; or (2) a lack of judicially discoverable and manageable standards for resolving it; or (3) the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or (4) the impossibility of a court’s undertaking independent resolution without expressing a lack of the respect due coordinate branches of government; or (5) an unusual need for unquestioning adherence to a political decision already made; or (6) the potentiality of embar205. Rachel Barkow, More Supreme Than Court? 102 Colum. L. Rev. 237, 253 (2002). 206. Id. at 329–30. 207. Alexander Bickel, The Supreme Court, 1960 Term—Forward: The Passive Virtues, 75 Harv. L. Rev. 40, 47 (1961). 208. In Baker, the Court was presented with the issue of whether Tennessee’s apportionment statute, which had not been amended in 60 years to account for a significant shift of population from rural to urban areas, violated the Equal Protection Clause by diluting the urban vote and disproportionately emphasizing the rural vote. See 369 U.S. at 187–95. Opponents to this challenge argued that the Tennessee law, a state law governing the electoral process, raised a nonjusticiable political question.

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rassment from multifarious pronouncements by various departments on one question.209 In a later case, the Supreme Court tried to simplify the subject by indicating that the political question doctrine encompasses three inquiries: (1) Does the issue involve resolution of questions committed by the text of the Constitution to a coordinate branch of government? (2) Would resolution of the question demand that a court move beyond areas of judicial expertise? (3) Do prudential considerations counsel against judicial intervention?210 Despite the detailed set of criteria laid out in Baker, however, the doctrine has fallen into relative dormancy. Since Baker, the doctrine has ‘‘rarely served as a meaningful restraint on the Supreme Court’s authority.’’211 One reason given for the decline of the political question doctrine is that Justice William Brennan’s decision in Baker, transforming the doctrine into a discretionary case-by-case test, focused exclusively on separation of powers concerns, abandoning the emphasis on federalism that had traditionally been a part of the doctrine.212 Another reason for the decline, according to Professor Robert Pushaw, is that the doctrine was ‘‘in such intellectual disarray by 1962 that it was fairly easy for the Warren Court to cherrypick material in various cases to support its result.’’ Consequently, as Pushaw notes, the Baker analysis depends ‘‘almost entirely on the discretion of the majority of the Justices, untethered to any legal principles rooted in the Constitution’s structure.’’ Subsequent to Baker, on only two occasions has the Supreme Court invoked the political question doctrine to refrain from deciding a case. In Gilligan v. Morgan, the Court ruled that the issue of 209. 369 U.S. 186, 217 (1962). 210. Goldwater v. Carter, 444 U.S. 996, 998 (1979). 211. Jesse H. Choper, The Political Question Doctrine: Suggested Criteria, 54 Duke L. J. 1457, 1459 (2005) (stating that ‘‘scholars have concluded that political questions are in serious decline, if not fully expired, because they are clearly at odds with the notion of judicial supremacy adopted by the Court in recent years’’); see also Barkow, More Supreme Than Court? 240 (arguing that the ‘‘demise of the political question doctrine is of recent vintage, and it correlates with the ascendancy of a novel theory of judicial supremacy’’). 212. See Robert J. Pushaw, Judicial Review and the Political Question Doctrine: Reviving the Federalist Rebuttable Presumption Analysis, 80 N. C. L. Rev. 1165, 1166 (2002).

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whether the elected branches had been negligent in military training and procedures was a political question outside the Court’s scope of review.213 Then, in Nixon v. United States, the Court held that the impeachment of a federal judge presented a nonjusticiable political question.214 Some commentators have theorized that the decline of the political question doctrine results from the rise of judicial supremacy. Professor Mark Tushnet argues that notions of judicial supremacy, along with ‘‘skepticism about the ability of the political branches to behave in a constitutionally responsible manner,’’ have undermined the enforcement of the political question doctrine.215 Professor Rachel Barkow similarly argues that the erosion of the political question doctrine has coincided with the Court’s assertion of judicial supremacy, most notably during the Warren era.216 According to Barkow, a strong view of judicial supremacy by necessity shoves the political question doctrine into the recesses of constitutional relevance. Therefore, because the political question doctrine conflicts with the notion of judicial supremacy over all constitutional questions, the modern Court has eliminated that tension by essentially abandoning the former. The modern Court’s view of judicial supremacy, regardless of the constitutional provision at issue or the policy judgments needed to resolve the issue, has eroded the deference due to legislative decisions under the political question doctrine.217 As Barkow argues, the Court ‘‘has become increasingly blind’’ to its policymaking limitations as an institution: thus, under the influence of judicial supremacy, the ‘‘unmistakable trend is toward a view that all constitutional questions are matters for independent judicial interpretation and that Congress has no special institutional advantage in answering aspects of particular questions.’’ 213. 413 U.S. 1, 5–12 (1973). 214. 506 U.S. 224, 226–38 (1993). 215. See Mark Tushnet, Law and Prudence in the Law of Justiciability: The Transformation and Disappearance of the Political Question Doctrine, 80 N. C. L. Rev. 1203, 1208 (2002). 216. Barkow, More Supreme Than Court? 237 (arguing that ‘‘the fall of the political question doctrine is part of a larger trend in which the Supreme Court has embraced the view that it alone among the three branches of government has the power and competency to provide the full substantive meaning of all constitutional provisions’’). 217. Id. at 319.

conclusion: a stifling of the democratic process

The story of the Court’s escalating activism regarding individual rights often begins with the New Deal opinion in Unites States v. Carolene Products, in which the infamous footnote 4 suggested that the Court should give its closest scrutiny to cases involving individual rights, because that was an area the judiciary was inherently well-suited to handle. The implication was that only the courts, through judicial enforcement of selected individual rights, could provide an adequate safeguard to liberty. By the time of the Warren era, the Carolene Products suggestion had so ingrained itself into the American legal mentality that it was generally accepted that indeed the Constitution had envisioned the judiciary as being the primary protector of individual rights (even though the actual holding in Carolene Products reflected a presumption of legislative authority and a warning against judicial interference with that authority).1 But the implications and lessons of Carolene Products were not entirely as they later came to be interpreted. In fact, the prevailing view of Carolene Products is a somewhat distorted view; it is a view that tells only half the story. And this half was true only because the Court’s earlier New Deal opinions had essentially forced it to be true. The message of Carolene Products was not that the Constitution relies mainly on the judiciary to protect individual liberty, or that the courts are the only means by which to protect liberty. Indeed, the framers had envisioned that the structural provisions of the Constitution—for example, federalism and separation of powers— would serve as the primary safeguard of liberty. However, once the 1. 304 U.S. 144, 152 (1938).

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Court had rendered those structural provisions virtually unenforceable, the only remaining protection of liberty lay with the judiciary. Thus, Carolene Products provided the first constitutional justification for what would be the Warren Court’s intensified activism on individual rights. But this justification did not arise from a constitutional model based on the original meaning of the Constitution; instead, it was basically a rationalization necessitated by the Court’s retreat from the doctrines of federalism and separation of powers. As a result of the New Deal constitutional compromise, solidified during the Warren era, any case or issue involving any aspect of individual rights gets swept up by the judiciary. Furthermore, in resolving these cases, the Court has enforced uniform, nationalized individual-rights doctrines. But as Justice John M. Harlan suggested in Roth v. United States, the First Amendment, for instance, should not be seen as imposing a rigid, nationalized uniformity on all state and local communities across the United States.2 With respect to the Establishment Clause, because the framers did not share a uniform notion of the proper relationship between church and state, they drafted a clause that did not constitutionalize one particular permissible relationship but rather reaffirmed the historical federalism arrangement concerning church-state matters.3 Thus, with the Establishment Clause the framers sought to leave the question of church-state relations to the states, and for this reason they chose not to constitutionalize a nationalized individual right of ‘‘nonestablishment.’’4 The way in which the post–New Deal Court has centralized and monopolized individual-rights issues calls into question the proper balance between legislative and judicial power. In 1824, Justice John Marshall expressed the prevailing view of the Court’s role: ‘‘Judicial power is never exercised for the purpose of giving effect to the will of the judge, always for the purpose of giving effect to the will of the legislature.’’5 Marshall also suggested that, on doubtful questions of 2. 354 U.S. 476, 506 (Harlan, J., dissenting). 3. Vincent Phillip Munoz, The Original Meaning of the Establishment Clause and the Impossibility of its Incorporation, 8 U. Pa. J. Const. L. 585, 604 (2006). 4. Id. at 630. 5. Charles L. Black, Jr., The People and the Court (New York: Macmillan, 1960), 159–69.

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constitutionality, the judgments of the political branches ought to prevail.6 Substantive due process cases require the courts not just to judge the specifics of individual cases, but to lay down a general rule that governs a whole society. The question is where the lines should be drawn between privacy and social morality or community values, and this question of balancing various interests to arrive at social policy is best addressed by the legislative branch.7 The judiciary, on the other hand, ‘‘is at a disadvantage in trying to ascertain facts not of the kind presented as evidence in trials.’’8 With contentious issues that stir the nation, the Court’s imposition of a nationally uniform rule prevents the democratic process from flushing out all the viewpoints, educating the polity, and reaching a compromise consensus.9 In Roe v. Wade, for instance, the Court prematurely removed from the political process one of the most wrenching and controversial issues in American history. However, because state legislatures all over the country in the early 1970s were beginning to rethink their abortion laws, the Court should have denied review in Roe so that the issue could ripen.10 Furthermore, abortion does not represent a minority right that only the courts can protect. Since women constitute a voting majority, according to John Hart Ely, there is no procedural reason why the political process should not take account of their interests.11 The centralizing tendency of the Supreme Court, and its corrosive effect on democratic processes, can be seen in the Court’s recent capital punishment decisions. In Roper v. Simmons, the Court struck down a state’s death penalty for convicted murderers under the age of 18.12 At issue in Roper was the fate of 17-year-old Christo6. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 401 (1819). 7. Tom Campbell, Separation of Powers in Practice (Stanford: Stanford University Press, 2004), 22. 8. Id., 23. 9. William Eskridge, Jr., Pluralism and Distrust: How Courts Can Support Democracy by Lowering the Stakes of Politics, 114 Yale L. J. 1279, 1283 (2005). 10. Id. at 1312–13. 11. John Hart Ely, Democracy and Distrust (Cambridge: Harvard University Press, 1980), 164–69. 12. 125 S. Ct. 1183 (2005).

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pher Simmons, who had been sentenced to death for the murder of Shirley Crook. The evidence showed that Simmons had plotted the murder by assuring friends that they could get away with it because they were minors. They broke into the home of Ms. Crook, kidnapped her, drove her to a railroad bridge, tied her hands and feet with electrical wire, and threw her off. Afterward, Simmons boasted that he had killed Ms. Crook ‘‘because the bitch seen my face.’’ In recommending the death penalty, the jury rejected Simmons’s claim that his age should mitigate the vileness of the murder. Justice Anthony Kennedy, writing for the Court, held that the death penalty for people under the age of 18 violated the ‘‘evolving standards of decency that mark the progress of a maturing society.’’ According to Justice Kennedy, American society had reached a ‘‘national consensus’’ against capital punishment for juveniles, even though seventeen states still permitted such punishment, and even though the terms ‘‘evolving standards of decency’’ and ‘‘national consensus’’ obviously carry subjective meanings. Undoubtedly, the question of capital punishment for 17-yearolds is a wrenching moral question; and indeed, of the thirty-eight states that permit the death penalty, eighteen forbid the execution of convicted murderers under the age of 18. But the issue is how should this moral question be decided in a democracy: by the expressed view of state democratic legislatures, or by a national mandate from a nine-Justice Supreme Court? Aside from its assumption of a legislative role, the Court in Roper also violated basic federalism principles. No matter how one may feel about the death penalty, it is part of the criminal justice structure administered by state governments.13 This federalism scheme of criminal justice gives to the states sole control over all aspects of criminal law—including the defining of crimes and the levying of punishment.14 Consequently, federal courts should be 13. See Medina v. California, 505 U.S. 437, 445 (1992) (noting that crime prevention and punishment are functions of the states rather than the federal government). 14. See Payne v. Tennessee, 501 U.S. 808, 824 (1991); Addington v. Texas, 441 U.S. 418, 431 (1979) (stating that ‘‘the essence of federalism is that states must be free to develop a variety of solutions to problems and not be forced into a common, uniform mold’’).

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hesitant to intrude upon a state’s moral or policy priorities in its sentencing laws.15 But as demonstrated in Roper, the Supreme Court has ignored this federalism aspect to criminal punishment. In Roper, the Court explained that its decision was necessitated by an apparent national consensus on certain standards of decency. But this argument directly contradicts the very essence of federalism. Uniform, national approaches are contrary to the spirit of federalism, which encourages each state to be independent from other states. Thus, just as due process is not violated every time a state finds itself in the minority, the Eighth Amendment is ‘‘not violated every time a State reaches a conclusion different from a majority of its sisters over how best to administer its criminal laws.’’16 A similar contradiction of the basic principles of federalism occurred in U.S. Term Limits, Inc. v. Thornton,17 where the Court struck down a state law imposing term limits for congressional representatives of that state. Reflecting a nationalistic viewpoint, the Court dismissed the dual sovereignty aspect of federalism, as if citizens could have only one type of loyalty, either to a state or the nation, but not both. As Robert Nagel observes, ‘‘If the Term Limits majority is committed to the idea that local interests and divided loyalties are undesirable just because they can reflect different values and interests than those that prevail at the national level, its opinion is powerful confirmation that the Justices are instinctively opposed to federalism.’’18 Not only does the Court intrude on federalism principles when it decides matters traditionally left to state authority, as it did in Roper, but by doing so it engages in the type of policymaking that is the province of the legislative branch. In striking down the death penalty for mentally retarded defendants, the Court in Atkins v. Virginia came to a conclusion about the deterrent value of the death penalty, reasoning that someone whose intellectual abilities are impaired cannot fully understand the meaning of the death penalty and hence cannot be deterred by it.19 Though this might be 15. See Harris v. Alabama, 513 U.S. 504, 510 (1995). 16. Spaziano v. Florida, 468 U.S. 447, 464 (1984). 17. 514 U.S. 779 (1995). 18. Robert Nagel, The Implosion of American Federalism (New York: Oxford University Press, 2001), 76. 19. Atkins, 536 U.S. at 321.

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a reasonable assumption, it is nonetheless an empirical conclusion or policy judgment that should be made by state legislators, since deterrence is a matter of policy best suited to the fact-finding process employed by legislative bodies. The exclusionary rule is another example of how the Court engages in legislative-type policymaking to uphold a centralized mandate on individual rights. In Dickerson v. United States,20 the Court reaffirmed the holding in Miranda v. Arizona that essentially created the exclusionary rule.21 Indeed, just as the Court ruled in Atkins that the threat of a death penalty would not deter the mentally retarded from committing heinous criminal acts, the Court in Miranda had made a policy judgment that the exclusionary rule—the rule precluding the government from using evidence obtained in violation of the Fourth or Fifth Amendment—would in fact deter the police from committing such violations. Thus, even though it initially set out to rule only on an individual-rights issue, Miranda ended up producing a nation-wide mandate on police behavior, based on theoretical assumptions about the deterrence value of that behavior. The exclusionary rule is grounded on various factual assumptions about how best to deter certain kinds of police misconduct. Consequently, a determination of deterrence value is one that calls for the kind of decisionmaking characteristic of the legislative branch, and one that is empirically supported rather than doctrinally supported.22 As Professor Tom Campbell notes, to ‘‘determine what rule of policy will best deter constitutional violations is legislative-like.’’23 Legislatures can hold hearings on such important issues as the level of deterrence that is desirable, the different steps that can or should be taken to deter police misconduct, and the relative costs of those steps. But aside from these policy matters, there is the question of whether the exclusionary rule is even constitutionally compelled. In Arizona v. Evans, the Court conceded that the exclu20. 530 U.S. 428 (2000). 21. 384 U.S. 436 (1966). 22. Campbell, Separation of Powers in Practice, 5 (stating that the proper level of deterrence ‘‘calls for the weighing of interests at which the legislative branch, not the judicial branch, excels’’). 23. Id., 103.

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sionary rule had no constitutional basis in the Fourth Amendment.24 And yet, an attempt by Congress to statutorily undo Miranda was rejected by the Supreme Court in Dickerson v. United States.25 The Court has also assumed legislative functions in connection with race issues. In Grutter v. University of Michigan, which upheld a law school’s affirmative action admissions plan, the Court selected out academic institutions for a different constitutional treatment of affirmative action programs than is given to other kinds of institutions.26 Furthermore, in Grutter, the Court imposed a legislative-type policy decision insofar as it set a 25-year deadline for racial preference programs.27 Having grown accustomed to bypassing or trumping the political process in the name of individual rights, the courts have come to intrude blatantly upon the legislative process in ways not even connected to traditional individual-rights issues. For instance, a judge ordered New York City to spend an additional $5.6 billion every year to ensure that students receive a judicially determined level of education.28 Not only did the judge proclaim a specific amount of money to be spent, but he even designated how it was to be spent—for example, shrinking the class size, increasing the number of laboratories, and expanding libraries. And in January 2005, the Kansas Supreme Court ruled that even though education spending in Kansas had doubled since 1989, current spending on education was inadequate.29 Consequently, the court ordered the legislature to increase funding levels, which in turn required that taxes be raised to support this judicially mandated level of spending. Whereas some courts have abstained from dictating education 24. 514 U.S. 1, 10 (1995). 25. 530 U.S. 428 (2000). 26. See, e.g., City of Richmond v. Croson, 488 U.S. 469 (1989); Adanand Constructors, Inc. v. Pena, 515 U.S. 200 (1995). 27. Professor Campbell also demonstrates how the Court in establishing liability tests under Title VII of the Civil Rights Act is engaging in legislative functions. Campbell, Separation of Powers in Practice, 159–65. 28. Greg Winter, ‘‘Judge Orders Billions More in Aid for New York City Schools,’’ The New York Times (February 15, 2005), A19. 29. Montoy v. State, 120 P. 3d 306 (2005).

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funding because they see the area as entrusted exclusively to the elected branches,30 others have reasoned that once a legislature creates a school system the judiciary is empowered to ensure that it is a ‘‘fair’’ one.31 In Missouri v. Jenkins, the U.S. Supreme Court upheld a lower court order that a school district pay for the implementation of a judicially created desegregation plan.32 This was the first time the Supreme Court sustained a direct judicial mandate to a legislative body to raise funds for a specific purpose, and this obviously serves as a precedent for courts across the country to enforce their decrees.33 Besides its increasing intrusions into the legislative area, the Court also seems willing to impose special handicaps on the political process. Using an individual-rights mandate to drain power from the political arena, the Court in Republican Party v. Rutan ruled that the use of various political patronage practices violated the First Amendment—a ruling that could in turn further weaken state party organizations.34 The rationale for this ruling was that patronage systems violate the free speech clause, since to replace a public employee because of that person’s political affiliation is to penalize the person’s political beliefs.35 The Court has also restricted the political question doctrine, which precludes the judiciary from adjudicating issues better left to the more political branches, whenever an issue of individual rights might be involved.36 Another way in which the Court has slighted the political process involves the Court’s increasing propensity to cite international law for some of its controversial individual-rights decisions. In 30. See, e.g., Comm. for Educ. Rights v. Edgar, 672 N. E. 2d 1178 (Ill. 1996); City of Pawtucket v. Sundlum, 662 A. 2d 40 (R.I. 1995). 31. Aaron Jay Saiger, Constitutional Partnership and the States, 73 Fordham L. Rev. 1439, 1454 (2005). 32. Missouri v. Jenkins, 491 U.S. 274 (1989). 33. See also Board of Education of Oklahoma City Public Schools v. Dowell, 498 U.S. 237, 238, 250 (1991) (refusing to terminate a 30-year court supervision over a school district that had begun with a desegregation case, even though the district court had found that the school district had complied with the desegregation decree). 34. 497 U.S. 62 (1990). 35. See Elrod v. Burns, 427 U.S. 347 (1976). 36. See Baker v. Carr, 369 U.S. 186 (1962); Powell v. McCormack, 395 U.S. 486 (1969).

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Lawrence, for instance, the Court cited a decision of the European Court of Human Rights to support the finding that the privacy right to engage in homosexual sodomy is constitutionally protected in the United States.37 According to the Court, this right ‘‘is an integral part of human freedom in many other countries’’ and hence is part of a scheme of ordered liberty.38 In Atkins, the Court used the opinions of the ‘‘world community’’ to help establish an ‘‘evolving standard of decency’’ that the death penalty at issue violated.39 And in Thompson v. Oklahoma, Justice John Paul Stevens referred to international standards regarding capital punishment of criminals under 16 years of age.40 By citing international precedent, the Court relies on foreign laws and pronouncements in which the American people never had any input and to which they never expressed any consent. For instance, in Roper, Justice Kennedy cited the United Nations Convention on the Rights of the Child, which the United States has never signed. Another problem arises from this use of international law if those cited laws come from nondemocratic nations. Finally, as one constitutional scholar argues, the very existence of the United States is a result of late eighteenth-century Americans rejecting any legal or constitutional relationship with Europe; thus, to construe the U.S. Constitution in accordance with European constitutions or treaties ‘‘would have proved laughable’’ to the framers.41 Exerting a growing power through its individual-rights jurisprudence, a single, centralized Court is handing down the kind of cultural judgments that used to flow up from society through the democratic process. Rights and liberty have come to be seen as strictly judge-made, unconnected and even antagonistic to the democratic process. Consequently, whenever individual rights confront cultural values, courts can immediately bypass the political process, as if the workings of self-government cannot be trusted to 37. Lawrence, 539 U.S. at 572, 576. 38. Id. at 577. 39. Atkins, 536 U.S. at 312, 316. 40. 487 U.S. 815, 830 (1988). 41. John Yoo, To What Extent Should the Interpretation and Application of Provisions of the U.S. Constitution Be Informed by Rulings of Foreign and International Tribunals? 26 Hawaii L. Rev. 385, 398 (2004).

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reach the right result. But this tends only to cut off democratic debate and dialogue on such matters, which in turn only further erodes the democratic processes. As Chief Justice William Rehnquist once said, ‘‘in the long run it is the majority who will determine what the constitutional rights of the minority are.’’42 With its substantive due process rulings, the Court has cast the Constitution as a Solomon-like source of wisdom on the moral truths of life. But the Constitution is not a moral edict; it is a political document. It sets the ground rules for making democratic decisions, but it is up to the democratic process to determine a society’s culture of morality. The constitutional provisions for the federal judiciary are relatively meager. The Constitution does not actually create the federal judiciary as an institution; it only creates the judicial power, leaving most of the institutional details—such as kinds and numbers of courts, number of Justices on the Supreme Court, appellate jurisdiction, and the regulation of the judicial process—to the discretion of Congress. In sum, this is hardly the kind of constitutional foundation one would expect for an institution that many now insist is meant to be the moral guardian of the republic. Yet despite the narrow and confined role of the judiciary, as outlined in the Constitution, the Court through its individualrights jurisprudence over the past seven decades has played an increasingly dominant and centralizing role. And in this role, the Court has fostered a citizenry dependent on a centralized, undemocratic institution to provide the exclusive protection of liberty.

42. ‘‘William H. Rehnquist, Architect of Conservative Court, Dies at 80,’’ The New York Times (September 5, 2005), A18.

index

abortion, 6–7, 115–16, 127, 155–56, 170–72, 181. See also Roe v Wade Administrative Procedure Act (apa), 45–46, 48–52 A. L. A. Schechter Poultry Corp. v. United, 15–16, 22 Allgeyer v. Lousiana, 164 Amar, Akhil, 72, 75, 96, 143 amendments First Amendment, 109, 129, 136, 143– 44, 147–48, 153–55 Fourth Amendment, 105, 184–85 Fifth Amendment, 165, 169, 184 Ninth Amendment, 16–18, 28, 71–72, 76, 90–91 Tenth Amendment, 16–20, 27–28, 71– 72, 76–82, 90–96 Eleventh Amendment, 71, 81, 84, 85–86 Fourteenth Amendment, 81, 115–16, 143–47, 155–56, 163–67, 172 Sixteenth Amendment, 91 Seventeenth Amendment, 91 Ashcroft v. ACLU, 149, 151 assisted suicide. See physician assisted suicide Atkins v. Virginia, 183–84, 187 Baker v. Carr, 176–77 Barkow, Rachel, 176, 78 Barnett, Randy E., 127, 156 Bill of Rights, 4, 24, 37, 101, 103–4, 114 Bowers v. Hardwick, 116, 128, 155–59 Bowsher v. Synar, 29, 62, 64, 68 Brady Handgun Violence Prevention Act, 82–83

Brennan, Justice William, 137, 177 Breyer, Justice Stephen, 72, 136, 149, 153 Buckley v. Valeo, 62, 65 Burger, Justice Warren, 76–77, 79, 109, 136, 171. See also Warren, Justice Earl Calabresi, Steven, 19, 29, 158 Calhoun, John C., 90, 94. See also states’ rights Cardozo, Justice Benjamin, 18 Carey v. Population Services International, 115, 155–56 Chase, Justice Salmon, 110, 175 Chevron U.S.A. Inc. v. Natural Resources Defense Council, 52 Chevron, deference, 56–58 Chevron, doctrine, 52–58 Child Online Protection Act (copa), 151. See also Reno v. ACLU; Ashcroft v. ACLU children cable, 152–54 computers, 150–51 educating, 73, 145 church-state relations, 180 Citizens to Preserve Overton Park v. Volpe, 48–50 City of Boerne v. Flores, 81–82, 146–47 civil rights, 72, 93–96 Clean Air Act, 22, 53 Clinton v. City of New York, 61 Commerce Clause, 16, 81, 83–84, 91, 93, 127 Conkle, Daniel, 135, 143 court packing plan, 17–18

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death penalty, 181–84, 187 Denver Area Educational Telecommunications Consortium, Inc. v. FCC, 152 Dickerson v. United States, 128, 184–85 dual sovereignty, 17–19, 28, 76, 83, 90–94, 183 Due Process Clause, 115–16, 124, 155–57, 159, 161–68, 172 due process rights, 67, 107, 131 Eleventh Amendment. See amendments Ely, John Hart, 161, 172, 181 Employment Division v. Smith, 81, 119, 126, 146 endorsement test, 138–41 Establishment Clause, 1, 3, 91, 135–44, 180 FDA v. Brown & Williamson Tobacco Corp., 54–55 Federal Election Commission v. Akins, 47–48 The Federalist. See Federalist Papers Federal Power Comm’n v. Hope Natural Gas Co., 23, 167 Federalist Papers, 34, 137 federalist system, 74–76, 96, 122, 129 Field v. Clark, 15 Fifth Amendment. See amendments First Amendment. See amendments Food and Drug Administration, 54–55 Fourteenth Amendment. See amendments Fourth Amendment. See amendments fourth branch, 21, 68 Free Exercise Clause, 81, 126, 146–47 Glendon, Mary Ann, 106, 112 Gonzales v. Oregon, 99. See also physician assisted suicide Graber, Mark, 175 Great Depression, 12, 18, 37, 76, 92, 117 Great Society, 93, 97 Griswold v. Connecticut, 114–15, 118, 155, 161, 168, 170–71 Grutter v. University of Michigan, 185 Hamdi v. Rumsfeld, 108, 130 Hamilton, Alexander, 34, 36, 174 hard-look doctrine, 48–52

index Harlan, Justice John Marshall, 103, 159, 162, 180 Immigration and Nationality Act, 63, 131 Immigration and Naturalization Service, 54, 104, 107 Immigration and Naturalization Service v. Cardoza-Fonseca, 54 individual rights, generally, 3–9, 112–13, 125–27, 133–36, 179–86 cases, 101, 106, 109 substantive individual rights, 4–6, 38, 69, 101–11, 125–34 INS v. Chadha, 62–65, 68 Interstate Commerce Commission, 91, 106 Johnson, President Lyndon B. See Great Society judicial review, 44–51, 94–95, 101–7, 110, 174–75 judicial supremacy, 52, 105, 109, 147, 161, 178 Kelo v. City of New London, Conn., 117, 169–70 Kennedy, Justice Anthony, 85, 115, 135, 158, 173, 182 Kimel v. Florida Board of Regents, 82, 85 Kramer, Larry, 38, 102 Lash, Kurt, 71–72 Lawrence v. Texas, 116–17, 125, 128, 149, 155–60, 164 Lawson, Gary, 21, 65–66 Line Item Veto Act, 61, 69 Lochner v. New York, 164–72 Madison, James, 14, 30, 33–36, 78, 137, 144 majoritarian rule, 6, 112 Marbury v. Madison, 53, 174 marriage, same sex. See same sex marriage Marshall, Justice John, 53, 89, 159, 161, 174, 180 McDonald, Professor Forrest, 18 Miller v. California, 147–48 Miranda v. Arizona, 128, 130, 184–85 Mistretta v. United States, 22, 42, 61 Motor Vehicle Manufacturers Ass’n v. State Farm Mutual Automobile Insurance Co., 48–51

index MWAA v. Citizens for the Abatement of Aircraft Noise, 64–65 Nagel, Robert, 5, 75, 133, 183 National League of Cities by Garcia v. San Antonio Metropolitan Transit Authority, 77–78, 83–84 National League of Cities v. Usery, 76–77 New Deal, generally, 2–4 constitutional revolution, 11–25, 113, 180 courts, 76, 104–6, 114, 168–69, 179 legislation, 17, 37, 84, 102, 126, 167 New Dealers, 13, 21, 24, 37 reformers, 13, 24, 37, 92 New Federalism, 71, 80, 84, 88, 96, 129, 133. See also Rehnquist Court New York v. United States, 34, 82 Ninth Amendment. See amendments O’Connor, Justice Sandra Day, 73, 141, 149 Panama Refining Company v. Ryan, 15, 20, 22 physician assisted suicide, 99, 162–63 Planned Parenthood of Central Missouri v. Danforth, 155 Planned Parenthood v. Casey, 156, 163, 168 Printz v. United States, 82–83 privacy rights, 8, 67, 113–14, 116–21, 169, 171 sexual, 7–8, 116–17, 120–21, 149, 154, 156 See also right of privacy Progressive era, 90–92 property rights, 103, 113, 117, 165–70 public use, 117, 169 Rasul v. Bush, 60, 107–8, 130 Rehnquist Court, 71–72, 80–84, 95, 129– 31. See also New Federalism; States Religious Freedom Restoration Act (rfra), 81, 146–47 Reno v. ACLU, 150–51 right of privacy, 7–8, 113–15, 120–21, 124, 155–56, 168–71 right to privacy, 103, 114–18, 120, 155, 171 right to travel, 95, 122–25 fundamental right, 122, 124 See also substantive due process

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Roe v. Wade, 115–16, 120, 127–28, 155–56, 170–71, 181 Roosevelt, President Franklin D., 11–12, 14, 17, 38 Roper v. Simmons, 181–83, 187 Saenz v. Roe, 123 same sex marriage, 88, 98, 117, 158 Scalia, Justice Antonin, 83, 108, 117, 149, 156–58 Schiavo, Terry, 89, 98 Seventeenth Amendment. See amendments sexual conduct, 7–8, 116, 118, 121, 155 Shapiro v. Thompson, 122–24 Sixteenth Amendment. See amendments sodomy, 116, 149, 157–58, 163, 187 South Carolina v. Baker, 78 states state autonomy, 4, 18, 76, 85, 90–92, 98 state sovereignty, 75, 77–78, 83, 85, 89–90, 99 states’ rights, 12, 34, 89, 93–97 advocates, 90, 95–96 doctrine, 89–90 theory 90, 94–95, 97 Stenberg v. Carhart, 116, 134 Stevens, Justice John Paul, 74, 136, 158, 169, 187 substantive due process, 169–73, 181, 188. See also Due Process Clause; due process rights Sunstein, Cass, 13, 23 Supremacy Clause, 30, 94–95 Taney Court, 89 Ten Commandments, 135–36, 138–40 Tenth Amendment. See amendments Thomas, Justice Clarence, 23, 60, 99, 108, 144–45, 149 Tribe, Laurence, 157 Un-American Activities Committee, 105 United States v. Butler, 16, 19 United States v. Carolene Products Co, 103, 129, 179–80 United States v. Lopez, 83–84 United States v. Mead Corp, 56–58 United States v. Morrison, 84

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United States v. Playboy Entertainment Group, 152–53 Warren, Justice Earl, 133, 156 Warren and Burger Court, 5, 76, 109, 136, 171

index Warren Court, 93–94, 104, 177, 180 Warren era, 24, 80, 93, 178–80 Washington v. Glucksberg, 162–64 White, Justice Byron, 68 Zelman v. Simmons-Harris, 145–46