States supreme.

• Author: Gottheimer, Josh
• Position: Book Review

NARROWING THE NATION'S POWER The Supreme Court Sides With The States by John T. Noonan, Jr. University of California Press, $24.95

In THE 1980S, DURING THE Reagan-Bush I reign, a wave of conservative jurists rode to prominence on a searing critique of their predecessors: the judicial system--especially during the Earl Warren years--had become a playground for liberal, activist judges who played fast and loose with the text of the Constitution. The conservatives charged these judges with reading the Constitution too broadly, misusing provisions like the commerce clause to drape minorities and other groups with broad federal protections. This interpretation, the conservatives charged, caused an imbalance of power between the federal government and the states, tilting unacceptably toward the former and allowing Congress to encroach steadily on the province of the states.

The essential argument of Judge John T. Noonan's book, Narrowing the Nation's Power, is that in an effort to correct this supposed imbalance, those same conservative jurists have in recent years abandoned their commitment to a strict reading of the Constitution, embracing, under the tutelage of Chief Justice William Rehnquist, a specious view of states' rights. Noonan rails against this devolution of power from Congress and toward the states (called, ironically, "federalism"), and the tactics that the five-member majority on the Supreme Court have employed to produce it. By declaring that the states are beyond the reach of many federal laws (granting them what lawyers call "sovereign immunity"), Noonan contends that the court has manipulated the Constitution "without justification," risking "intolerable injury to the enforcement of federal standards ... [and] danger to the exercise of democratic government." The rise of sovereign immunity has set off a firestorm in federal courts around the country, as state officials push the limits of their newfound power. By capitalizing on recent rulings, the states have shielded themselves from congressional mandates on topics from civil rights to crime to fair labor standards.

Noonan's critique of the Supreme Court's approach isn't exactly a new one. The tug of war between states' rights and a strong central government is age-old, dating back to when Alexander Hamilton and Thomas Jefferson jousted over a proposed national bank, a federal militia, and forgiving state debt. But coming from a widely respected, and Reagan-appointed judge...