'A government of limited and enumerated powers': in defense of United States v. Lopez.

• Author: Calabresi, Steven G.
• Position: Reflections on United States v. Lopez

"We start with first principles. The Constitution creates a Federal Government of enumerated powers."(1)

-- Chief Justice William H. Rehnquist

Introduction

The Supreme Court's recent decision in United States v. Lopez(2) marks a revolutionary and long overdue revival of the doctrine that the federal government is one of limited and enumerated powers. After being "asleep at the constitutional switch" for more than fifty years,(3) the Court's decision to invalidate an Act of Congress on the ground that it exceeded the commerce power must be recognized as an extraordinary event. Even if Lopez produces no progeny and is soon overruled, the opinion has shattered forever the notion that, after fifty years of Commerce Clause precedent, we can never go back to the days of limited national power. The Lopez Court has shown us that we can go back, if we want to, so long as: 1) we can figure out a workable theory of the limits on the federal commerce power; 2) we can agree on the propriety of vigorous judicial review in federalism cases; and 3) we can take proper account of the important reliance interests that have accrued around certain key precedents decided in the past half century.

All three of these concerns animate the important separate concurrence of Justices Anthony M. Kennedy and Sandra Day O'Connor in Lopez,(4) and satisfying all three of these concerns is necessary if Lopez is to be not merely a significant case but also the great landmark case of American constitutional history that it deserves to be. Because I believe Lopez has the potential to be as important a turning point as NLRB v. Jones & Laughlin Steel Corp.(5) or United States v. Darby,(6) I want to address directly in this article the concerns expressed by Justices Kennedy and O'Connor, focusing especially on their statement that:

The substantial element of political judgment in Commerce Clause

matters leaves our institutional capacity to intervene more in doubt

than when we decide cases, for instance, under the Bill of Rights even

though clear and bright lines are often absent in the latter class of

disputes.(7) This statement, which reflects the weight and thinking of a half century of judicial opinions and law review articles,(8) is in my judgment mistaken.

Now in fairness to Justices Kennedy and O'Connor, their concurrence does end up rejecting the present-day orthodoxy because they do endorse finally some judicial enforcement of the scheme of limited and enumerated powers. But, as the quotation above shows, these two concurring Justices seem to be joining the Lopez Revolution only after sounding a note of caution and restraint. Is there any reason why such a show of judicial modesty is called for? Specifically, is it true, as Professor Jesse Choper has claimed, that the Supreme Court's institutional capacity to intervene is more in doubt in Commerce Clause cases than it is in so-called individual rights cases?(9) This article seeks to rebut that claim with a normative discussion in five parts.

In Part I, I consider whether federalism is somehow less important than the separation of powers, the Bill of Rights, or judicial review as a structural feature of American government. If federalism were truly less important, then it would follow that judicial enforcement of constitutional federalism guarantees also might be a lesser priority. While Justices Kennedy and O'Connor consider and reject the proposition that federalism is an unimportant feature of American government,(10) they do not discuss the possibility that federalism actually might be by far the most important and beneficial feature of our constitutional scheme. I argue at some length in Part I that federalism is much more important to the liberty and well being of the American people than any other structural feature of our constitutional system. In so arguing, I present what I perceive to be the best empirical and normative arguments for American federalism. This discussion lays the groundwork for my claim that it is vital that some institution enforce our constitutional federalism limitations.

In Part II, I consider and refute the reigning orthodox argument that constitutional federalism guarantees can and should be enforced exclusively, or mainly, through the political process. I show why, under modern public choice theory, we should have no confidence in the political branches as the exclusive or even as the principal enforcers of our constitutional federalism guarantees. Indeed, I argue that reliance on the political branches to enforce federalism limitations almost guarantees that our constitutional federal system will fail to attain the normative benefits -- set forth in Part I -- that federalism ought to secure. Accordingly, I conclude Part II by arguing that a decision to rely upon the political branches for enforcement of federalism would be a grave mistake -- a mistake that would result in less freedom and less prosperity for future generations.

In Part III, I take up the important and difficult question of whether the Supreme Court lacks the institutional capacity to enforce our constitutional federalism guarantees. My conclusions here are three-fold. First, judicial enforcement of the Commerce Clause does not raise questions of interpretation or fact that are any more troubling than those that the Court regularly struggles with in the Bill of Rights and Fourteenth Amendment contexts. Second, the implications of public choice theory suggest that there is absolutely no reason to fear that a runaway Court ever will criple the national government, disabling it from performing vital national functions. Third, the only valid fear that anyone ever should entertain about the Supreme Court's ability to enforce the Constitution in federalism cases is that the Court will do far too little, not that it will do too much.

In Part IV, I consider the claim advanced by Professor Choper, among others, that the Supreme Court is needed more in so-called individual rights cases than it is in federalism cases and that it therefore should save its institutional capital for use in the national human rights area.(11) In this Part, I attempt to refute the argument that the Supreme Court always does more good for the country when it enforces its elaborate Fourteenth Amendment case law than it would do if it enforced the federalism provisions of the original Constitution. I disagree with the argument that the Supreme Court always has a comparative normative institutional advantage when it is promulgating national codes on abortion,(12) flag burning,(13) pornography,(14) holiday displays,(15) prison conditions,(16) or-procedural rules on criminal trials and investigations.(17)

Finally, in Part V, I consider the problem of precedent. Are the reliance interests that have grown up around the Court's Commerce Clause precedents so powerful that they overwhelm the other normative arguments advanced in Part I of this article? In Part V, I argue that even if the Court cannot and should not undo past precedents that, upon close analysis, turn out to be mistaken, it does not follow that the Court should continue to adhere to a wholly mistaken form of analysis in new cases involving new federal statutes. The Court's critics, in my view, wrongly seek to hobble its power by pointing to its past sins and saying in effect that it is too late now for the Court to save itself. The correct response rather would be to acknowledge that specific past mistakes cannot always be undone, while denying that the Court thus should be held forever in thrall to its past bad methods of decisionmaking in federalism cases. The Court should repent, as perhaps it has done in Lopez, and then it should "Go and sin no more."(18) Whatever reliance interest exists surrounding various past federal programs and statutes, there is no continuing reliance interest in having the Court review newly enacted programs and statutes in a misguided fashion that undermines the central normatively appealing feature of our entire constitutional structure.

1. The Normative Case for Federalism

   World-wide interest in federalism is greater today than it ever has been before at any other time in human history. In section A, below, I discuss at some length why this is the case and what lessons the global federalism revolution might hold for the United States. I conclude that federalism is the wave of the future, that nationalism and the centralized nation-state have been discredited for good reasons, and that these reasons strongly suggest that the United States should retain and strengthen its federal structure. Having developed what might be called a comparative empirical case for federalism I then turn, in section B, to developing the theoretical normative case for federalism. Both the disciplines of economics and political science suggest that there is a good case to be made for federalism. I develop this case in three subparts by considering, first, the arguments for state power, second, the arguments for national power, and third, the arguments for a federal constitutional blend. Finally, in section C, I step back and look briefly at the empirical and normative arguments for federalism in perspective. My goal here is to show that federalism is likely to be more important to the liberty and well being of the American people than any other structural feature of our Constitution, including the separation of powers, the Bill of Rights, and judicial review.

   1. Comparative, Historical, and Empirical Arguments

      We all know that since the dawn of the American Republic, a mere 200 years ago, there has been a truly extraordinary change in the way most people are governed. The world-wide democratic revolution so ardently hoped for by Thomas Jefferson(19) and James Madison(20) has come to pass and has swept across the globe, relegating monarchy, aristocracy, empire, Napoleonic dictatorship, national socialism, fascism, and now, communism, to the ash heap...