Dual Sovereigns

by Jeffrey Rosen | July 28, 1997

Since the Progressive era, this magazine has argued for judicial restraint as part of a broader argument for liberal nationalism. Judges should defer to the prerogatives of Congress and the president, the argument goes, so that popular sovereignty can serve as the engine of national unity. And so, in 1918, when the Supreme Court held that Congress's power to regulate interstate commerce didn't authorize it to ban the products of child labor, the editors complained that "a bare majority" had imposed on the nation its "dubious preference for exclusively local regulation." In 1935, when the Supreme Court unanimously struck down the code-making process of the National Recovery Act, the centerpiece of the New Deal, as an unconstitutional delegation of Congress's authority, the editors denounced the Court for its "reversal of the trend toward nationalism and a return to doctrines of states' rights." In 1937, the Court finally relented and got out of the business of enforcing constitutional limits on congressional power; since then, The New Republic has been preoccupied with another kind of judicial activism: the Warren-Burger era's expansion of individual rights.

But this year, for the first time since 1937, the Court has decided to take seriously the proposition that the authority of "the Federal government," as Justice Kennedy put it in his opinion striking down the Religious Freedom Restoration Act (rfra), "is one of enumerated powers." And, for liberal and conservative partisans of judicial restraint, it's hard to know whether or not to become hysterical. In 1997, unlike 1935, the Court's muscle-flexing is unlikely to provoke the president or Congress to respond in kind. Far from paralyzing the federal government, the Court has struck down feelgood laws, such as the Brady bill and the Gun-Free Schools Act. Laws like these are cheap symbols of federal virtue that interject the national government into areas that have traditionally, and properly, been left to the states. Indeed, as Congress and the president increasingly trivialize federal power by brandishing it for the sake of appearances, nationalism itself seems a tarnished ideal.

The Court's new resolve to check lazy and ill-advised federalization may be good public policy; but some of the recent decisions are bad constitutional law. By ignoring constitutional text, misrepresenting constitutional history and overlooking the legacy of Reconstruction and the New Deal, the conservative justices are guilty of precisely the kind of judicial activism that they rightly criticized on the Warren Court. And the Court's effort to segregate the federal and state governments by resurrecting the antebellum vision of "dual sovereignty," if carried to its logical conclusion, could call into question not only the symbolic laws that have been struck down so far, but a host of more important regulatory schemes--from welfare reform to environmental standards--organized around the principle of cooperative federalism.

In the Brady bill case, the Court held that Congress can't compel state officers to execute or administer federal laws. In the rfra case, the Court held that Congress's power to "enforce" the guarantees of the Fourteenth Amendment is limited to remedying constitutional violations by the states, and that Congress has no power to change the substance of constitutional rights. In two other recent decisions, the Court held that principles of state "sovereign immunity" dramatically restrict Congress's power to authorize federal courts to enforce rights arising under federal law. And, in 1995, the Court held that Congress's power to regulate interstate commerce doesn't include the power to prohibit guns in schools.

The most troubling aspect of the Brady and sovereign immunity decisions is their lack of mooring in the constitutional text. When Justice Stevens read his dissent from the bench in the Brady case, he remarked spontaneously that Justice Scalia's opinion for the Court reminded him of Justice Douglas's opinion in the Griswold contraceptives case of 1965, which extrapolated a right to privacy from the Constitution's "penumbras" and "emanations." And Justice Kennedy, in his opinion in the Idaho sovereign immunity case, mischaracterized recent precedents and ignored the plain language of the Eleventh Amendment, which sets out specific limits on "the Judicial power of the United States," rather than establishing, as Justice Kennedy would have it, additional limits on congressional power.

The source of the Court's rhetoric of "dual sovereignty" and "dual federalism" is not constitutional text but antebellum history. Although the conservatives pose as defenders of states' rights, they are, in fact, drawing on an unexpectedly nationalistic tradition. "Dual federalism" was a doctrine developed by Chief Justice John Marshall and his disciple Joseph Story, who held that the federal and state governments should be as separate and distinct as the governments of two states. The anti-Federalists had originally sought concurrent responsibility for administering federal law, which they thought would increase state power; but in a famous compromise, the Philadelphia Convention rejected that vision in favor of the system of "dual sovereignty" in which the states and federal government each had exclusive control over their own spheres.

The overriding goal of "dual federalism," as it developed during the Marshall era, was to protect a weak national government from the power-hungry states, rather than weak states from a bullying national government. In 1842, Justice Story held that states couldn't carry out important federal duties (such as protecting the right of slave owners to recover their fugitive slaves) because state officials were too parochial, venal and demagogic to be trusted with national responsibilities. And the question of who was sovereign, the people of each state or the people of the United States, was settled at Appomattox.

If the Supreme Court is seriously committed to resurrecting the antebellum vision of "dual sovereignty," the states might be reinvigorated, but in a more subtle way than the Court's crude rhetoric suggests. In the short term, many of the post-New Deal regulatory schemes that the state and federal governments administer together might be called into question. For example, the welfare reform act of 1996, which directs the states to administer federal block grants, might be unconstitutional under the principle announced in the Brady case. So might the motor voter law, which commands state licensing agencies to register federal voters. So might the Environmental Protection Agency's regulations that delegate the administration of federal clean water standards to certain states. So might scores of unfunded mandates. And so might the reporting requirements of the Americans with Disabilities Act.

If the Court continues to bar the states from sharing in federal responsibilities, Justices Stevens and Breyer predict that the states will ultimately suffer. The federal government, they suggest, will create massive federal bureaucracies to administer programs that used to be administered as federal-state partnerships. But Stevens's and Breyer's fears may prove to be overstated. A president who insists that the era of big government is over and a Congress led by laissez-faire Republicans are unlikely to create massive federal bureaucracies.

 

As Roderick Hills of the University of Michigan argues, the future of federalism will hinge on the Court's vision of Congress's spending power. If the justices decide that Congress can't intrude on state sovereignty by imposing elaborate conditions on federal spending, the states could indeed suffer greatly; for Congress would stop using state officials to carry out important federal functions. The federal government would assume exclusive responsibility for welfare, Social Security, Medicaid and defense; the states would be reduced to regulating firearms within 1,000 feet of schools.

But it seems highly unlikely that a majority of the Court will resurrect the vision of the spending power that led President James Madison to veto an internal improvements bill, on the grounds that Congress lacked the enumerated power to build highways. As long as Congress can use its spending power to encourage states to administer federal programs voluntarily, Hills suggests, the Brady decision could ultimately prove to be a victory for state power, because it will increase the states' ability to bargain for larger grants and more discretion.

It is difficult to imagine how far the Court intends to press its vision of dual federalism, largely because it is difficult to resurrect antebellum notions in a post-New Deal world. After Reconstruction and the New Deal, however, we can no longer say, as Madison did, that the powers of the national government are few and defined. The New Deal crisis was solved in 1937, when the Court acknowledged that the national and local economies had become increasingly intertwined, and judges could no longer distinguish local "manufacture," over which the states had exclusive control, from national "commerce," which was the sole responsibility of Congress.

The manufacturing-commerce distinction collapsed in 1937 not simply in the face of FDR's court-packing threats, but also in the face of the economic realities of the New Deal regulatory state. The attempt to distinguish local production from its national effects became increasingly unrealistic in a global economy, which makes Justice Thomas's attempt to resurrect the distinction in 1997 a provocative but self-indulgent academic exercise. And so, between 1937 and 1995, federal courts suggested, with winks and nods, that nothing Congress decided to regulate, from backyard vegetable gardens to racial discrimination, had effects on interstate commerce too remote to be impermissible.

Viewed in a charitable light, the federalism decisions of 1997 are an earnest effort by the Court to resurrect coherent limits on congressional power in an age when it is no longer clear that coherent limits can be resurrected. Ever since the Court abandoned the effort to police the boundaries of federal power in 1937, the states have become more trustworthy partners of the federal government, and more tempting targets of federal commandeering. This is why the Court's solution in the Brady case--allowing Congress to encourage the states to administer federal programs voluntarily, as long as it is willing to pay them for their trouble--could be seen as a creative attempt to translate the nineteenth-century principles of federalism into a post-New Deal world.

The Court is surely right, furthermore, that most serious threats to federalism today come not from overly powerful state governments, as in the 1840s, but from a federal government that is increasingly addicted to symbolic legislation. The Gun-Free Schools Act is troubling for the same reason as the Americans with Disabilities Act: both noisily declare the federal government's opposition to evils that no one supports, and then order the states to worry about the details of enforcement. In this way, Congress and the president can reap political benefits without incurring corresponding political costs. And when feel-good laws co-opt state officers to administer programs whose political benefits accrue to Congress alone, it seems fair to wonder whether Justice Stevens is correct that "unelected judges are better off leaving the protection of federalism to the political process in all but the most extraordinary circumstances."

But, although the Brady decision may be defensible as a matter of public policy, it's hard to defend as a matter of constitutional law. Justice Scalia's opinion for the Court brings to mind the excesses of the Warren Court, with its overconfident tone, its misuse of history and its offhandedness about unsettling laws and precedents without pretending to glance at the constitutional text. ("Because there is no constitutional text speaking to this precise question," says Scalia, sounding very much like Justice Brennan, the answer must be sought "in historical understanding and practice, in the structure of the Constitution, and in the jurisprudence of this Court.")

It's tempting, for those who sympathize with the Court's decisions on policy grounds, to forgive the justices for their activist turn. In an age when the president and Congress have marginalized themselves by embracing the politics of symbolic legislation, the people are unlikely to take to the streets in defense of federal prerogatives. By contrast, the Supreme Court, flush with self-confidence, enjoys and deserves far more popular respect than either of the political branches.

But, to maintain that respect, the Court should resist the temptation to save the president and Congress from their own excesses. A recurring lesson of constitutional politics in the twentieth century is the overriding importance of judicial humility. In applauding the demise of "dual federalism" in 1937, Edwin Corwin wrote: "The obstinate adherence of the Court in recent years to outmoded doctrines which were largely of its own fabrication, and the arrogance of certain of its opinions during this period, showed the Court to be in the grip of a gravely erroneous conception of its place in our system." If the conservative justices intend to start down this self-aggrandizing path again, perhaps they should recall how history has treated their predecessors.

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