Preface

Date01 March 2001
DOI10.1177/000271620157400101
Published date01 March 2001
/tmp/tmp-17K9fYYrjL23Pw/input
PREFACE
In the last decade, the Supreme Court has handed down a remarkable
series of decisions invalidating congressional legislation in the name of feder-
alism or states’ rights. Most of these were decided by a razor-thin majority of
five justices-the Court’s conservative quintet of Chief Justice William
Rehnquist and Justices Sandra Day O’Connor, Antonin Scalia, Anthony Ken-
nedy, and Clarence Thomas. The cases fall into four categories.
First, the Court reaffirmed and expanded the principle of state sovereign
immunity. In Seminole Tribe of Florida v. Florida’ andAlden v. Maine,2 it held
that Congress cannot subject an unconsenting state to suit in either federal or
(its own) state court, whether the suit is brought by a citizen or noncitizen of
that state, and whether it is based on federal law or state law. The four dis-
senters in Seminole argued that the states’ constitutional immunity is con-
fined within the four corners of the Eleventh Amendment, which rules out of
federal court only suits against a state by &dquo;citizens of another state.&dquo; The
majority, however, concluded that the immunity is inherent in the concept of
state sovereignty, rests upon a structural principle of the Constitution that is
presupposed by but not limited to the text of the Eleventh, and extends even
to suits by the state’s own citizens for violation of federal law. Three years
later, Alden further extended this nontextual constitutional immunity to
suits in the state’s own courts.
In a second pair of cases, the Court held that state governments (other
than their courts) cannot be &dquo;commandeered&dquo; by Congress to assist in the
enforcement of federal law. State legislatures cannot be required to regulate
in accordance with congressional instructions,3 nor can state executive offices
be forced to perform federal tasks.4 This aspect of state sovereignty, like
immunity from suit, was attributed by the Court to the intentions of the
Founders. Both immunities-from suit and from commandeering-can be
waived by consent, and consent made a condition of eligibility for federal
grants or privileges.
Third, for the first time since the early New Deal, the Court, by the familiar
5-4 margin, invalidated a federal statute enacted pursuant to the interstate
commerce clause. For nearly 60 years, the reigning principle of that clause
has been that even local activities are reachable by Congress if they have
&dquo;substantial effects&dquo; on interstate commerce.’ In 1995, however, United
States v. Lopez’ declared unconstitutional a law banning possession of guns
within 1000 feet of a school, despite the aggregate impact of the regulated
activity on the national economy through its effects on education and crime.
The Court declared that to accept such remote effects as justification for
NOTE: The author owes many
thanks to Jarett Epstein both for his splendid assistance in the
editing of this volume and for his useful comments on the preface.
9


10
federal regulation would virtually obliterate all limits on congressional
power; but it also stressed the noneconomic character of the regulated activ-
ity, a fact that distinguished Lopez from all previous cases sustaining legisla-
tion on the &dquo;substantial effects&dquo; rationale. Any doubt as to the importance of
this latter factor was removed last term in United States v. Morrison’ in which
the same narrowly divided Court struck down a provision of the Violence
Against Women Act (VAWA) creating a federal civil remedy against the per-
petrators of gender-motivated crimes of violence. Again the Court stressed
the noneconomic nature of the regulated activity, stoppingjust short of a cate-
gorical rule placing such activity beyond congressional power.
Finally, the Court adopted a new, and extremely demanding, standard of
review for congressional action under Section 5 of the Fourteenth Amend-
ment, which empowers Congress to &dquo;enforce&dquo; the amendment &dquo;by appropriate
legislation.&dquo; That standard-which requires that prophylactic legislation
under Section 5 must have &dquo;congruence and proportionality&dquo; to the evil Con-
gress seeks to remedy-was
laid down only four years ago in City of Boerne v.
Flores8 but has already resulted in the invalidation of four congressional stat-
utes.’ What makes this lethal standard particularly important from the
standpoint offederalism is that valid legislation under Section 5 trumps all of
the other limitations on congressional power discussed previously in this
preface. Acting validly pursuant to Section 5, Congress can subject a state to
involuntary suit in either federal or state courts, can commandeer state coop-
eration in the enforcement of federal law, and, of course, can regulate local
noneconomic activities regardless of their effect on interstate commerce.
&dquo;Congruence and proportionality&dquo; thus constitute a multidimensional red
light.
A
PREVIEW OF
THE
ARTICLES
The 13 articles in this volume deal with various aspects of the Supreme
Court’s federalist revival and the principles underlying it. The first 3 articles
discuss these principles in comprehensive terms. Steven Calabresi argues
that federalism serves important values highly deserving of constitutional
protection; that the political branches of the federal government cannot be
trusted to police the boundaries of federalism on their own; and that judicial
review by the Supreme Court is no less vital a safeguard for the rights of the
states than for the rights of the individual.
In contrast, Edward Rubin is a nonadmirer of federalism and, beyond that,
a nonbeliever in its reality. He contends that contemporary America is, and
long has been, a unitary national polity, with the states as branch offices; that
the lip service we pay to federalism is a nostalgic hangover from our formative
years, a mere
&dquo;puppy federalism&dquo; related to the authentic one as puppy love is
to the real thing. The Supreme Court’s recent decisions in this area, though
incorrect, are essentially harmless and will go no further than our popular
national commitment to centralized government allows them to.


11
Robert Nagel, on middle ground, sees both powerful centralizing and
potentially radical decentralizing tendencies in our current cultural and
social situation and is uncertain which of these tendencies will prevail. He is
convinced, however, that the Supreme Court and the mechanisms of judicial
review will do little to foster attitudes of defiance and dissent at the local level
that are necessary for an effective decentralization movement. The justices
themselves are too little committed to federalism, and the constitutional text
too little supportive of it, to be an effective barrier to centralized national
power. Indeed, those who favor greater decentralization may well conclude
that judicial review-with its concentration of power in a single national tri-
bunal not notably shy about exercising it-is part of the problem, rather than
the solution.
Each of the next three articles focuses on a particular aspect of the federal-
ism principle or its judicial enforcement. One of the most prominent argu-
ments for federalism is its claimed contribution to individual liberty. Seth
Kreimer evaluates this claim in depth. He argues, among other things, that
some states are more protective and others less protective of individual lib-
erty than is the federal government, so that displacement of the states by a
unitary national government would enhance the liberty of some citizens
while reducing that of others. A
further implication of his analysis is that the
mutual ability of the state and federal levels of government to check one
another’s excesses makes them jointly more protective of liberty than either
level alone would be. A
particularly important conclusion is that the greatest
contribution of federalism to freedom is the court-enforced right of every citi-
zen
to exit his or her own state and find sanctuary in another, notwithstand-
ing the laws of either, and to be treated as an equal in the state of refuge. By
thus guaranteeing interstate mobility, constitutional federalism enables
each citizen to choose the kind of liberty he or she prefers, an option unavail-
able under either a unitary national government or a multiplicity of inde-
pendent, fully sovereign states.
Evan Caminker explores whether the &dquo;dignitary&dquo; interests of the state-
the &dquo;respect due them as members of the federation&dquo;-provide a plausible jus-
tification for the Court’s sovereign immunity jurisprudence rather than
merely a rhetorical embellishment. He concludes that the idea of the states as
coequal sovereigns is anachronistic and that the constitutional rule giving
the states immunity from suit as an expression of respect for their dignity as
sovereigns is in conflict with a competing expressive norm of respect for the
dignity of the individual.
A
number of eminent scholars have argued that judicial enforcement of
federalism is both unnecessary and undesirable because the political pro-
cess-chiefly, the influence of the state governments upon Congress-can be
relied upon to protect the states from excessive interference by the federal
government. Marci Hamilton disputes this claim, invoking both historical
arguments-the understanding of the Framers and ratifiers of the Constitu-
tion-and contemporary empirical evidence for the proposition that judicial


12
enforcement is an essential safeguard of states’ rights and that politics alone
will not...

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