Close but no cigar: a reply to Professor Graglia.

• Author: King, T. Kyle
• Position: Response to Lino A. Graglia, Harvard Journal of Law and Public Policy, vol. 24, p. 149, 2000

Doubtless readers of the recent roundtable discussion on The Revitalization of Democracy from the Nineteenth Annual National Student Federalist Society Symposium appearing in these pages (1) found much to admire, as I did, in the contribution of Professor Lino A. Graglia. In Revitalizing Democracy, (2) Professor Graglia makes a number of cogent points in defense of his preference for decentralizing policymaking, his suspicions regarding judicial review, and his cynicism with respect to the supposed "conservatism" of Republican appointees to the United States Supreme Court. I shall not dwell upon the myriad and obvious ways in which the ideas expressed therein are sound. I would, however, like to offer a few thoughts upon certain areas of disagreement concerning matters that are not trivial. Adopting the approach taken by Justice Scalia in his dissent from the Court's decision in Planned Parenthood v. Casey, (3) I will preface each critique with a quote from Professor Graglia.

"[D]ual sovereignty is a contradiction in terms." (4)

On this point, Professor Graglia's criticism is clear enough. Ultimately, one sovereign must have the final say. Nevertheless, in declaring dual sovereignty to be an impossibility, he overstates his case, in effect saying that there can be no such thing as federalism. While there is a natural and inevitable tension in any political system of separated powers, the question of which entity is truly sovereign only arises when the limits of each power are unclear. Federalism can work if the spheres of national and local power are sufficiently defined, as they are under the United States Constitution. The Tenth Amendment (5) provides a clear delineation of national and local power by declaring the reservation of any and all powers not explicitly delegated. The question of whether the national government has the power to do something or to deny a State the power to do it is answered easily enough; one has but to look to Article I, Sections 8 and 10. (6) If a power is not listed in one of those two places, it is retained. One must then look to the state constitution and statutes to determine whether the people have delegated the power to the state government or reserved it to themselves. The historical failures of dual sovereignty in practice notwithstanding, the theory of the Constitution is, like that of Christianity, sound when actually followed.

Even a cursory reading of the Constitution demonstrates that most of the powers delegated by Article I, Section 8, are perfectly clear. There is very little room for argument over what constitutes levying a tax, (7) or establishing a bankruptcy code, (8) or raising an army. (9) The only provisions that could plausibly support interpretations that would allow federal power to overlap with state power are the interstate commerce and "elastic" clauses, but even these provide clear restraints. The latter is limited by the phrase, "all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers," (10) which makes it a gap-filling provision, not a charter for expansionism. (11) Suppose, for instance, that I have been authorized to drive from Atlanta to Birmingham. Suppose also that this authorization further provides that I might drive anywhere "which shall be necessary and proper for carrying into execution the foregoing authorization." Under this latter clause, I would also be authorized to drive to Douglasville, Bremen, and Anniston, all of which lie between Atlanta and Birmingham along 1-20. I could not, however, plausibly interpret that grant of additional power as a warrant for driving to Oxford, Nashville, or Charlotte. As for the interstate commerce clause, (12) if its language is not limitation enough, which it ought to be, despite such patently absurd decisions as Wickard v. Filburn, (13) then let the States do what Messrs. Madison, Jefferson, and Calhoun contemplated: nullify acts of Congress which overstep the Constitutional grant of authority. (I shall return to the subject of nullification anon.)

There are, of course, signs that our commerce clause jurisprudence has gotten so far afield that even the federal judiciary is starting to see it. On May 15, 2000, in the consolidated cases of United States v. Morrison and Brzonkala v. Morrison, (14) the Supreme Court struck down the 1994 Violence Against Women Act (15) on the rather sensible and straightforward ground that allowing battered women and rape victims to pursue federal civil rights claims against their assailants has not the slightest connection to the regulation of commerce "among the several States." The ensuing hue and cry over Morrison was ridiculous, but, once one gets past all the leftist disingenuousness and feminist rhetoric, common sense counsels that the Court is right on this one. As even Professor Laurence Tribe admits, "if the dissenters [in Morrison] are right, then there are no judicially enforceable limits at all on the commerce power, [and] the basic compromise underlying the Constitution has come unglued." (16)

"[T]here is much to be said for the notion of a `living Constitution,' a Constitution adaptable to new circumstances, when the effect of a doctrinal change is not to expand but to loosen constitutional restraints--to relax the grip of the hand of the dead--and the adapting is done not by judges but by elected representatives." (17) At best, what Professor Graglia is advocating here is "the ratchet theory", (18) the idea that the Supreme Court, through judicial review, sets the Constitutional minimum, but that Congress, through legislation, may raise the bar (e.g., outlawing sexual discrimination in the Civil Rights Act, (19) which was passed pursuant to amendments which apply to racial discrimination). Underlying this notion is the belief that overly broad interpretations by elected legislators are less pernicious than overly broad interpretations by appointed judges. Legislators who overstep their Constitutional authority, after all, may be replaced at the next election. This distinction, while true as far as it goes, is nevertheless a dubious one in a republic with a national government of limited powers. The Constitution is "adaptable to new circumstances" through Article V, (20) which sets up the mechanisms for amending the document. (21) The phrases "living Constitution" and "relax the grip of the hand of the dead" are loaded with disingenuousness. The amendment process allows for changes in the Constitution to suit the needs of the time. What such phrases mean, of course, is doing an end-run around intellectual integrity by reading into the Constitution what we wish were there but know is not. (22) Our living Constitution was amended twenty-seven times between 1791 and 1992, an average of once every seven years. The ability of the American people to implement doctrinal change at the Constitutional level through the amendment process would appear to be all the mechanism we need if the average thirty-year-old American at any point in our Constitutional history has seen four amendments adopted during his lifetime.

Moreover, the very nature and purpose of our Constitution to limit government through explicit delegation gives rise to the necessary inference that the Article V amendment process is the sole means by which such Constitutional changes can be implemented. Certainly, any other approach is inconsistent with the rest of the document; for any arm of the national government to aggrandize its own power by changing the Constitution through willful manipulation of its language goes against the very premise of a government of limited and enumerated powers. It is one thing to apply established doctrine in a changing context (e.g., applying the Bill of Rights' prohibition on unreasonable searches and seizures to protect the transmissions I receive in my e-mail account as well as the letters I receive in my post office box). Expanding or loosening Constitutional restraints, however, disrupts the balance of powers carefully created and maintained by our charter of government. (23) An alteration in doctrine that does so without the constitutionally-sanctioned amendment process is an act of violence upon the body politic.

Two final points bear making on the "hand of the dead." First, no one seems to have a problem with being ruled by "the hand of the dead" when the dead in question agreed with them. As Judge Bork has pointed out, no one complains about age-old Constitutional provisions, such as the scheduling of elections, with which we concur, even though...