Lochner's Cousin: Demonstrating Originalism's Failure and Its Disingenuous Nature

• Publication year: 2022
• Citation: Vol. 34

34 Creighton L. Rev. 517. LOCHNER'S COUSIN: DEMONSTRATING ORIGINALISM'S FAILURE AND ITS DISINGENUOUS NATURE

Creighton Law Review

Vol. 34

KENNETH W. HARTMAN(fn+)

The resemblance of today's state sovereign immunity to the Lochner era's industrial due process is striking. The Court began this century by imputing immutable constitutional status to a conception of economic self-reliance that was never true to industrial life and grew insistently fictional with the years, and the Court has chosen to close the century by conferring like status on a conception of state sovereign immunity that is true neither to history nor to the structure of the Constitution. I expect the Court's late essay into immunity doctrine will prove the equal of its earlier experiment in laissez-fair, the one being as unrealistic as the other, as indefensible, and probably as fleeting.(fn1)

INTRODUCTION

On April 17, 1905, the United States Supreme Court decided Lochner v. New York,(fn2) and entered a regrettable era of the Court's jurisprudence.(fn3) As every student of constitutional law knows (or should know) the Lochner era, of protecting state rights by invoking substantive due process to enshrine an economic policy that the Court believed benefited the country, was doomed from the beginning. Justice Holmes dissented in Lochner, rejecting the Court's effort to emblazon its brand of economic theory upon the Constitution. Justice Holmes decried the Court's effort:

This case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether I agreed with that theory I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law. . . . Some of these laws embody convictions or prejudices which judges are likely to share. Some may not. But a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgement upon the question whether statutes embodying them conflict with the Constitution of the United States.(fn4)

Justice David H. Souter's dissent in Alden v. Maine(fn5) sounds the same words of warning that Justice Holmes stridently declared almost one hundred years ago. To Justice Souter, the Alden Court's creation (or more aptly, recreation) of the doctrine of state sovereign immunity to protect states from suit under federal law is much the same as the Lochner Court's effort to protect states by invoking substantive due process. Justice Souter hopes that Alden will be as fleeting as Lochner - but will it?

This Essay will scrutinize the Rehnquist Court's use of the doctrine of state sovereign immunity to impede the efficacy of federal laws. Part I of this Essay will examine the Rehnquist Court's latest foray into its new federalism jurisprudence. In so doing, Part I will delve into the idea of federalism and what the Rehnquist Court's new federalism entails. The focus of Part I will be on Alden v. Maine,(fn6) the Court's most recent and significant new federalism case.(fn7)

Part II of this Essay will criticize the Rehnquist Court's haphazard creation of their version of state sovereign immunity and question the Court's historical basis for that immunity. I will argue that the proper starting point in any analysis of sovereignty in America begins with the power and rights of the People. The People distributed andentrusted this power to the various forms of government that they created through their tool - the Constitution. Through this Constitution, they also acted to ensure that their precious rights would be protected forever. This perspective - the People as sovereign - is what should drive any conception of federalism. Thus, any constitutional principle of federalism must support the People as sovereign; if a doctrine instead is rooted in the power of the states or states' rights, then that doctrine is inherently flawed.

In Part III, the critical aspect of the Rehnquist Court's state sovereign immunity doctrine is addressed: constitutional interpretation. How should the Constitution be interpreted to solve this - and other - constitutional questions, from an originalist or nonoriginalist perspective?(fn8) This debate has raged for decades, and I do not propose that I can answer it here. However, Part III will demonstrate, within the context of the federalism debate, how originalism fails as a mode of interpretation free from judicial manipulation as well as how the Court often disingenuously shrouds its policy choices behind the veil of originalism.

Finally, in the Conclusion, I will once again compare Alden and Lochner. This comparison will focus on a theory of federalism based on the rights of the People, not the so-called states' rights. Thus, I join Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsberg, and Stephen G. Breyer in the hope that the Court's new federalism, which enshrines state sovereign immunity at the People's expense, will be even more fleeting than Lochner's legacy. However, I have no doubt that these "rulings are the Rehnquist Court's most dramatic change in constitutional law."(fn9)

I. THE REHNQUIST COURT'S NEW FEDERALISM

Before plunging into the Rehnquist Court's most recent decisions regarding federalism, one first should recognize that the term federalism means many things to different people. The term federalism is at best ambiguous. This ambiguity has led to scholars and academics struggling to define federalism, and the Court, similarly, laboring tocreate a workable doctrine of federalism.(fn10) Today some use the term as shorthand for a theory of protecting states' rights.(fn11) However, to some the term federalism, especially to the framers, meant a stronger central government; while to others, the term meant greater respect for state government.(fn12) Still others see federalism developing and being invoked to "thwart full remedies for violations of constitutional rights."(fn13) And still another scholar envisions federalism, not as a constitutional value, but as a tool to address social issues.(fn14)

All of this debate may be academic, for while scholars debate what federalism entails, the Supreme Court will define what it is. In understanding that it is the Court that will decide what federalism is, or at least how it will be applied in concrete cases, it is also important to understand that the term is not rooted in the text of the Constitution. One can look in vain for the word federalism, or its modern corollary, sovereign immunity, in the pages of the Constitution. Both concepts are grafted to the Constitution by the Court. Thus, we turn to the Court's latest foray into defining federalism as a constitutional principle.

A. THE BREADTH OF NEW FEDERALISM

The Rehnquist Court has endeavored to create a doctrine of federalism that works to promote states' rights as a bulwark against the power of the federal government. Scholars call this doctrine new fed-eralism.(fn15) The aspect of the Court's new federalism that this Essay is concerned with is state sovereign immunity. However, there are many aspects of this new federalism that go beyond the scope of this Essay, but are important enough to bear mentioning to demonstrate the breadth of the Rehnquist Court's new federalism.

The Court has used many cases in recent years to curtail the legislative and judicial power of the federal government. For example, in 1995 the Supreme Court, in United States v. Lopez,(fn16) reigned in the federal commerce power. Subsequently, in Printz v. United States,(fn17) the Court declared a federal law unconstitutional that required state law enforcement to perform background checks on firearm purchasers. Then in City of Boerne v. Flores,(fn18) the Court held the Religious Freedom Restoration Act was unconstitutional because it was enacted outside the bounds of Congress's remedial powers under section five of the Fourteenth Amendment. This decision was followed in the October 1998 term by Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank,(fn19) which found that Congress once again ventured outside the bounds of the remedial power of the Fourteenth Amendment when it enacted the Patent Remedy Act. The 1998 term also produced College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board,(fn20) where the Court dispensed with the doctrine of constructive waiver for state sovereign immunity. Since these cases were decided more cases have followed the general trend they set in motion - a trend toward using new federalism as a trump against federal power.(fn21) However, the focus of this Essay is not the breadth of this new federalism, but on one aspect of it: the rejuvenation of the doctrine of state sovereign immunity.

B. STATE SOVEREIGN IMMUNITY

The doctrine of state sovereign immunity, as an element of the Court's new federalism, is best demonstrated by an examination of two cases: Seminole Tribe of Florida v. Florida(fn22) and Alden v. Maine.(fn23) As shall be demonstrated, the more important of the...