Narrowing the Nation's Power: The Supreme Court Sides with the States.

• Author: Sullivan, E. Thomas
• Position: Book Review

NARROWING THE NATION'S POWER: THE SUPREME COURT SIDES WITH THE STATES. By John T. Noonan, Jr. (1) University of California Press. 2002. Pp. 203. $24.95.

Two hundred years ago, in 1803, the Supreme Court decided Marbury v. Madison. This seminal case established judicial review of legislation and executive action. It may well be the Supreme Court's most important, celebrated opinion.

The story of Marbury is well known. Chief Justice Marshall, the author of the opinion, was an ardent Federalist from Virginia. The case was born and decided amidst great political turmoil during the transition from John Adams' presidency to Thomas Jefferson's. As Adams' term was coming to a close, Congress--dominated by the federalists--passed the Judiciary Act of 1801, (4) creating 16 new federal judgeships. Adams invoked his prerogative and nominated the 16 federal court judges before he left office. The Senate confirmed each. In addition, legislation authorized the President to appoint a number of justices of the peace for the District of Columbia. Marbury was one of those nominated and confirmed. His commission was sealed before Adams' term expired, though not delivered before Adams left the presidency. Interestingly, Marshall had been Adams' Secretary of State and was responsible for delivering Marbury's judicial commission.

President Jefferson refused to recognize Marbury's commission and appointment. Marbury challenged Jefferson's refusal to acknowledge Adams' commissions. Marbury invoked as grounds for jurisdiction the Judiciary Act of 1789, (5) which granted original jurisdiction to the Supreme Court to issue writs of mandamus. Marbury petitioned the Court to mandamus James Madison, the new secretary of state, to deliver the commissions. The Court ordered Madison to show cause why the writ of mandamus should not issue ordering him to deliver the commission to Marbury.

In an elegant, brilliant opinion, Chief Justice Marshall held that Marbury was entitled to his office, but that the Supreme Court lacked the jurisdiction to issue a writ because Congress, in establishing the writ of mandamus in the Judiciary Act, violated the Constitution which set forth the Court's power, but did not include the writ of mandamus in the Court's original jurisdiction. Congress, Marshall concluded, was without authority to expand the Court's power beyond those set forth in Article III. The Court, therefore, could not give Marbury a remedy for what the Court acknowledged had been a violation of his rights.

Although clearly limiting the Court's remedial power, Chief Justice Marshall, importantly, interpreted the Constitution to give the Court its ultimate power--the power of judicial review. He stated, emphatically, that "the province ... of the judicial department [is] to say what the law is." (6) In doing so, he acknowledged with great care the right of both the executive and legislative branches to interpret the Constitution within the sphere of their own power. He cautioned that "the province of the Court is solely to decide on the rights of individuals not to inquire how the executive, or executive officers, perform duties in which they have a discretion."

Marbury, therefore, launched a two-hundred-year history of judicial review in the United States. Indeed, the Court during Chief Justice Marshall's tenure went on to recognize that Congress had broad discretion to apply and, in the first instance, to interpret the Constitution. The Marshall Court did not declare another congressional act unconstitutional during the 34 years of Chief Justice Marshall's tenure, during which he authored more than 500 opinions.

Marshall's expansive interpretation of Congress' power, especially under the commerce clause, as demonstrated in Gibbons v. Ogden (7) and McCulloch v. Maryland, (8) makes the ascendancy of judicial supremacy surprising. This current turn of events, featuring the supremacy of state rights over the federal government, surely would have alarmed James Madison, (9) the "father" of the Constitution, as well as John Marshall.

This contemporary revolution in narrowing Congress' power is well documented in John T. Noonan, Jr.'s recent book, Narrowing the Nation's Power. Judge Noonan, a well-regarded former law professor, legal historian, and senior judge on the United States Court of Appeals for the Ninth Circuit, forcefully argues that the Rehnquist Court is undermining both the structure of the Constitution and the core principles of democratic society by its unprecedented embrace of federalism and its enhanced autonomy of the States.

Judge Noonan raises important legal and public policy questions about the path the Rehnquist Court has taken: Is Congress still an equal and coordinate branch of government? What has happened to deference to political branches by unelected judges? Why is there such disrespect by the present Court for the doctrine of stare decisis, the tradition of following earlier judicial decisions? Does the expansion of judicial review interfere with republican self-government? (10) Is the Court's present interpretation of Congress' power ahistorical? Does judicial review have no boundaries? Is the Court's authority exclusive over the Constitution? (11) Has judicial activism replaced judicial restraint as the overriding conservative theme? (12) Why has Congress not objected to restrictions on its domain and powers, especially when there often has been bipartisan approval of many acts, now over 30 in the past decade, declared unconstitutional by the Court? Have we arrived at an Imperial Court?

Judge Noonan's critique of the Rehnquist Court's recent federalism decisions not only centers on the revival of state rights but on the larger policy issue of judicial supremacy over deference to Congress. Regarding state sovereignty, he strongly disagrees with the Court's recent assertion that "the States entered the federal system with their sovereignty intact" (p. 2). (13) "[T]o anyone familiar with the precedents of that Court or with the text of the Constitution of the United States or with the history of the Civil War," Judge Noonan remarks, "this] is an extraordinary statement" (p. 2). He considers much of the Court's federalism jurisprudence since 1995 to be "profoundly ahistorical" (p.83). For him, the Court has undone, through its expanded view of judicial review, scores of incontestable constitutional principles. He further laments the Court's "complete indifference to the individual plaintiffs" (14) and to giving justice to persons in these cases (p. 145). His arguments are punctuated with strong language:

The claim that the sovereignty of the states is constitutional rests on the audacious addition to the Eleventh Amendment, a pretense that it incorporates the idea of state sovereignty. Neither the text nor the legislative history of the amendment supports this claim, nor does an appeal to the history contemporaneous with the amendment. A rhetorical advantage is gained by the current court referring to the state sovereignty as 'an Eleventh Amendment' matter. The constitutional connection is imaginary (p. 151-152). The Court's rhetorical abstractions, according to him, lose sight of our country's motto--e pluribus unum--from many (states) to one (country) (p. 14).

Narrowing the Nation's Power covers four constitutional areas that form the core of the Rehnquist Court's federalism jurisprudence: (1) the commerce clause, (2) the 10th Amendment, (3) the 11th Amendment, and (4) section 5 of the 14th Amendment.

COMMERCE CLAUSE JURISDICTION

The federalism revolution under Chief Justice Rehnquist began in earnest with the 1995 case of United States v. Lopez, (15) a case that required interpretation of the commerce clause. From the Court's first commerce clause decision in 1824 in Gibbons v. Ogden, (16) through the Court's commerce clause cases from 1937 (17) to mid-1970s, the Court had given Congress broad authority to legislate under its constitutionally "enumerated powers" as fortified by its authority to enact laws that are "necessary and proper" in order to carry out the enumerated powers.

Lopez shocked the country by reallocating power between the States and the federal government. The result was a significant narrowing of Congress' powers. It was the first Supreme Court case since 1937 to strike down a federal statute as a violation of the commerce clause. The Court held that when Congress enacted the Gun-Free School Zones Act, making it a federal offense for an individual knowingly to possess a firearm in a school zone, it exceeded its commerce clause authority, since possession of a gun in a local school zone is not, according to the Court, an economic or commercial activity that substantially affects interstate commerce.

The second commerce clause case to fall victim to the advances of federalism was United States v. Morrison, (18) decided five years after Lopez. At issue in Morrison was the constitutionality of a federal statute that provided a civil remedy for victims of gender-motivated violence. Again, the Court struck down section 13981 of the statute, concluding that Congress lacked commerce clause powers since gender-motivated crimes of violence, such as rape, were not considered economic or commercial activity substantially affecting interstate commerce. Clearly, the Court was drawing the line of Congress' power at commercial or economic activity only.

Judge Noonan cites with approval the dissenting view of four justices in Morrison that "for the better part of the twentieth century, since 1937, the Supreme Court had accepted the commerce power of Congress as 'plenary'; the power had...