Vanguard states, laggard states: federalism and constitutional rights.

• Author: Althouse, Ann

INTRODUCTION

Justice Louis Brandeis famously characterized the states as laboratories of democracy. (1) The most appealing reason for courts to enforce limits on Congress and to preserve the role of autonomous states is the prediction that states will in fact experiment with new policies, looking for new ways to serve the public good, putting new ideas into practice, and producing evidence about the effectiveness and work-ability of new programs, to be followed, improved upon, or avoided by the rest of the states, who can look upon one state's experiment and learn. There are times for the national government to stand back and let policies emerge at a lower level of decision making, and times for it to deprive local government of the option to be different. Is it better to deprive local government of the option to be different from the start, if a patchwork approach to policymaking will plainly do more harm than no regulation at all? (2) Even where disuniform regulation is tolerable, it may be better to substitute national uniformity at some later point when the best approach to policy has become so clear that the states that maintain their own approach to a matter no longer appear to be making a positive contribution to any process of experimentation or to be serving distinctive local conditions and preferences. At that point, the states have begun to appear as laggards, no longer serving any beneficial purpose by maintaining their differences, but only depriving their citizens of the greater good.

In the experimentation model of federalism, we might classify states as the vanguard and the laggards. Attempts to sort the states into these two categories will (and should) produce great disputes over where the vanguard is and who the laggards are. For example, what do we think of Harvey Milk High School? (3) In this Article, I will maintain that it is worth engaging in these disputes, for they form the foundation of opinions and doctrines about federalism. I also will hold out the possibility that laggards are, at least some of the time, part of good federalism. The entire vanguard/laggard distinction creates a somewhat false, or at least sometimes false, picture of progress, depicting one right answer waiting for us in the future with the only task being to discover it and put the answer into action--policy science, as depicted by Brandeis. There is also an important argument for placing tradition, and not innovation, at the center of analysis, (4) either as a good in itself or in the interest of preserving the cultural diversity from which new forms emerge. Maybe the laggard should be called the traditionalist and valued--at least some of the time.

With these reservations in mind, let us explore the vanguard and the laggards and the corresponding role of Congress. States operating autonomously may--as Brandeis would have it--generate evidence that can be used by other government entities in shaping their own policies. But states operating autonomously may also be producing evidence that can be characterized as violating constitutional rights. Violations of constitutional rights lay the groundwork for federal statutes depriving the states of autonomy. The Court has interpreted Section 5 of the Fourteenth Amendment (5) to allow Congress to remedy violations of constitutional rights by regulating a "broader swath" of behavior than the Section 1 (6) rights alone would reach. (7) To tap this power, Congress must act upon evidence that there is in fact a "widespread pattern" (8) of constitutional rights violations and respond with a "congruent and proportional" (9) remedy. Thus, there are two ways of looking at the autonomous activities of the states: we might see them in a positive light, as Brandeisian experimenters, deserving to be left alone to contribute new ideas about what good policy is; or we might instead see them in a negative light, as rights violators, deserving to be intruded upon and controlled by federal legislation. To what extent can and does Section 5 doctrine define a role for Congress that enables it to control the laggard states while preserving the benefits the vanguard states have to offer? This Article will attempt to answer that question.

Part I of this Article examines the concept of the states as laboratories. It considers Justice Brandeis's dissenting opinion in New State Ice v. Liebmann (10) and the various purposes for which the venerable passage has been mobilized. Brandeis's opinion and its diverse applications over the years have, as we shall see, generated a useful collection of judicial ideas about federalism. This Part pays close attention to the two most recent uses of the Brandeis quote, both from Justice Stevens, in United States v. Oakland Cannabis Buyers' Cooperative (11) and Boy Scouts of America v. Dale. (12) Finally, this Part focuses on United States v. Virginia, (13) a case that not only includes an invocation of the New State Ice dissent but also provides a key advancement of the Court's sex discrimination jurisprudence.

Part II of this Article shows the development of the Court's Section 5 doctrine, beginning with City of Boerne v. Flores (14) in 1997, and becoming especially important after Seminole Tribe v. Florida, (15) which held that Congress could not use its Article I powers to abrogate state sovereign immunity. This Part then looks at the key cases--Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, (16) United States v. Morrison, (17) Kimel v. Florida Board of Regents, (18) and Board of Trustees of the University of Alabama v. Garrett (19)--that applied the City of Boerne doctrine and created the impression that it had become quite difficult for Congress to tap the Section 5 power. (20) This Part contemplates whether these cases reflect judicial ideas about the states as valuable policy experimenters, likely to generate good solutions to real problems, in the Brandeisian vanguard, then fields a few questions from critics of these cases and notes the extent to which the critics perceive the states as laggards, deserving federal statutory solutions to the problems they generate.

Part III of this Article focuses on the newest Section 5 case, Nevada Department of Human Resources v. Hibbs, (21) which dispelled the impression that the Court was fiercely restricting the scope of the Section 5 power. (22) Hibbs dealt with the Family and Medical Leave Act of 1993 (FMLA), (23) which guarantees most employees, including state employees, an annual leave of up to twelve weeks to attend to the serious health needs of family members. Before Congress enacted the FMLA, states were performing experiments with family leave. (24) Were they in the vanguard, beneficially left alone? Are we sure we know where the vanguard is with respect to family leave? We may feel quite confident that ending discrimination against women in the workplace is the only acceptable direction for state experimentation, but what about the details? If a state accommodates new mothers with generous maternity leaves, is it experimenting with a new idea that might work well to enable woman to compete in the workplace or is it reinforcing a traditional stereotype? To the dissenting Justice Kennedy, the states had been in the vanguard, but to Chief Justice Rehnquist, writing for the majority, the states were contributing to the problem of sex discrimination. Was the uniform standard of a twelve-week leave an inappropriate denial of room to the states to experiment with various approaches to balancing work and family or was it needed to thwart subtle discrimination in the workplace? This Article explores these questions in depth, concluding that, despite the majority's attempt to explain Hibbs entirely in terms of the heightened scrutiny given sex classifications, the case really has deviated from the approach taken in the earlier cases in the City of Boerne line. The Article considers the extent to which ideas about vanguard and laggard states account for the different approach.

1. INVOKING AND EXTENDING THE IMAGE OF BRANDEIS'S LABORATORIES

   1. What Did Brandeis Really Say in His New State Ice Dissent?

      Consider the statement Justice Brandeis made about state experimentation in his dissenting opinion in New State Ice. Referring to the problems of the Great Depression, he wrote:

      Some people assert that our present plight is due, in part, to the limitations set by courts upon experimentation in the fields of social and economic science; and to the discouragement to which proposals for betterment there have been subjected otherwise. There must be power in the States and the Nation to remould, through experimentation, our economic practices and institutions to meet changing social and economic needs. I cannot believe that the framers of the Fourteenth Amendment, or the States which ratified it, intended to deprive us of the power to correct the evils of technological unemployment and excess productive capacity which have attended progress in the useful arts. To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the Nation. It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country. This Court has the power to prevent an experiment. We may strike down the statute which embodies it on the ground that, in our opinion, the measure is arbitrary, capricious or unreasonable. We have power to do this, because the due process clause has been held by the Court applicable to matters of substantive law as well as to matters of procedure. But in the exercise of this high power, we must be ever on our guard, lest we erect our prejudices into legal principles. If we would guide by the light of reason, we must let our minds...