The Principled and Unprincipled Grounds of the New Federalism: a Call for Detachment in the Constitutional Adjudication of Federalism - Scott Fruehwald

• Publication year: 2002

The Principled and Unprincipled Grounds of the New Federalism: A Call for Detachment in the Constitutional Adjudication of Federalismby Scott Fruehwald^*

"Everything that exceeds its limit changes into its opposite."

Al-Ghazali (1058-1111)

I. Introduction

One of the greatest challenges facing our legal system is how to deal with the great diversity that exists in contemporary society.¹ Judge J. Harvie Wilkinson recently suggested a partial solution to handling the problem of diversity: detachment in developing and applying process.² He declared: "In an increasingly diverse country with many competing visions of the good, it is critical for law to aspire to agreement on process—a task both more achievable than agreement on substance and more suited to our profession than waving the banners of ideological truth."³ He added:

A multicultural nation may find in process a means of muting differences. A society beset by bewildering change may find in process stable ways of making that change come about. A culture torn over questions of personal autonomy may discover in process a means of decentralizing and diversifying outcomes. What agreement future Americans achieve may center on process, in part because cultural consensus may not withstand the waves of demographic and technological change. Our Constitution encourages this continuing commitment to process—it is one way our changing country remains the same.⁴

Process for Judge Wilkinson is what decisionmaker should address a particular problem.⁵ He asserted that "by refusing to ask the institutional questions a priori, we deny ourselves a sense of detachment."⁶ He elaborated:

There is a price to be paid for confusing legal roles. Think for a moment of how it feels to be bested by someone who does not follow the rules. Then multiply your sense of personal disillusionment by the millions. There is nothing so corrosive to public confidence in public institutions as the idea that a decision, whether right or wrong, represented at heart an arrogation of authority. Such usurpation is unbecoming in constitutional democracies that should rest on the idea that the crude displacement of proper decisionmaking channels is little better than a putsch.⁷

Federalism, whether the Constitution has assigned the decisionmaking power to the federal government or the states, is one area that relates to the issue of which institution should decide a question. Over the last decade, the Rehnquist Court has been deeply concerned with this question ("the new federalism").⁸ In fact, Judge Wilkinson referred to this area of the Court's jurisprudence as "contemporary judicial activism."⁹

There are two principal grounds to the new federalism: (1) limits on Congress's powers to enact statutes under the Constitution, including those implied in Article I and specifically set forth in the Tenth Amendment, and (2) limits on Congress's power under general concepts of federalism. United States v. Lopez¹⁰ illustrates the first ground. In this case, the Court held that Congress lacked power to pass the Gun-Free School Zones Act of 1990¹¹ under the Commerce Clause because violence at schools does not affect interstate commerce.¹² The Court's analysis in Alden v. Maine¹³ typifies the second ground. In Alden the Court held that overtime provisions of the Fair Labor Standards Act of 1938¹⁴ did not apply to state governments because "the powers delegated to Congress under Article I of the United States Constitution do not include the power to subject nonconsenting States to private suits for damages in state courts."¹⁵ The Court added that "the States' immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today . . . except as altered by the plan of the Convention or certain constitutional Amendments."¹⁶

Several writers have criticized the new federalism as being political—lacking detachment.¹⁷ These criticisms have a great deal of merit.

Some of the Court's decisions lack a principled basis for their outcomes. However, as this Article will show, if one removes these unprincipled decisions from those that are well-grounded in the Constitution's text, a method of constitutional analysis remains that can achieve detachment.

The thesis of this Article is that the first ground of the new federalism is principled because it enforces specific provisions of the United States Constitution, but the second ground is unprincipled because it is based on a general conception of state sovereignty that is not in the Constitution's text. In its first ground, the new federalism attained the detachment Judge Wilkinson advocated because it neutrally enforces the allocation of authority set forth by the Constitution. However, the second ground lacks detachment because the absence of support in a specific constitutional provision makes it political. The second ground enforces a concept of states' rights without a principled basis for that concept.

Part II of this Article examines the first ground of the new federalism—constitutional limitations on Congress's power to enact statutes under Article I, section 5 of the Fourteenth Amendment, and the Tenth Amendment. As stated above, it concludes that this ground is principled because it enforces the Constitution's text. Part III analyzes the second ground of the new federalism, which is based on general concepts of federalism. It discusses the two subcategories of this ground: (1) whether Congress can abrogate a state's sovereign immunity, and (2) whether Congress has the power to coerce states to enact statutes or to force local officials to enforce federal schemes. Part III concludes that both subcategories are unprincipled because they are unsupported by properly enacted constitutional text. This Article ends with a call for an approach to constitutional jurisprudence that neutrally enforces the federalism structures set forth in specific constitutional provisions, but does not go beyond the Constitution's text.

II. The Principled Ground of the New Federalism: Constitutional Limits on Congress's Power to Enact Statutes Under Article I, Section 5 of the Fourteenth Amendment, and the Tenth Amendment

A. The Principled Ground of the New Federalism

The principled ground of the new federalism is that there are constitutional limits on Congress's power to pass statutes. There are dual sources for this ground: (1) the implicit limits on Congress's power under Article I,¹⁸ and (2) the restrictions set forth in the Tenth Amendment.¹⁹ First, the federal government is a government of limited powers.²⁰ James Madison wrote, "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite."²¹ Therefore, Congress is implicitly limited to the powers given by Article I of the Constitution. Chief Justice Rehnquist declared: "Every law enacted by Congress must be based on one or more of its powers enumerated in the Constitution. 'The powers of the legislature are defined and limited; and that those limits may not be mistaken, [sic] or forgotten, the constitution is written.'"²² He has further asserted that "[u]nder our written Constitution, however, the limitation of congressional authority is not solely a matter of legislative grace."²³

The implicit limits on Congress's powers under Article I were made explicit by the Tenth Amendment: "[T]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."²⁴ Justice Roberts declared that "[t]he Tenth Amendment was intended to confirm the understanding of the people at the time the Constitution was adopted, that powers not granted to the United States were reserved to the States or to the people."²⁵

Under the first ground of the new federalism, the Court asks whether Congress has power to pass a statute under a specific Constitutional provision—Article Fs Commerce Clause²⁶ or section 5 of the Fourteenth Amendment.²⁷ The cases that restricted Congress's power to enact statutes under the Commerce Clause asked whether a statute had a substantial relationship to interstate commerce.²⁸ For example, in United States v. Morrison,²⁹ the Supreme Court struck down the Violence Against Women Act³⁰ ("VAWA") because Congress lacked authority to enact it.³¹ In Morrison Christy Brzonkala alleged two Virginia Polytechnic Institute football students assaulted and raped her. Dissatisfied with the results of university disciplinary procedures, Brzonkala filed suit against the football players and the University in federal court based on the VAWA. The lower court held that Brzonkala had stated a claim against the football players under the VAWA, but Congress did not have authority to enact the statute, so it dismissed her complaint.³² A divided panel of the Fourth Circuit Court of Appeals reversed, but on a rehearing en banc the Fourth Circuit affirmed the lower court's opinion.³³

The Supreme Court began its analysis by stating that "[d]ue respect for the decisions of a coordinate branch of Government demands that we invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds."³⁴ The petitioners asserted that Congress had the power to pass the VAWA under the substantial relation prong of its commerce powers.³⁵ Lopez had distinguished between the regulation of economic and noneconomic activity under the Commerce Clause, with the latter being beyond

Congress's purview.³⁶ The Court declared, "Lopez's review of Commerce Clause case law demonstrates that in those cases where we have sustained federal regulation of intrastate activity based upon the activity's substantial effects on interstate commerce, the activity in question has been some sort of economic endeavor."³⁷

Based on Lopez, the Court concluded...