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Debate Club
DEBATE CLUB 7/18/05

The End of States’ Rights?

Roderick M. Hills Jr. and Roger Pilon debate.

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Ten years ago, the Supreme Court, following the lead of Chief Justice William Rehnquist, seemed poised to leave a legacy of curbed federal power. In recent terms, however, the "federalism revolution" seems to have stalled. The June rulings that invalidated California's medical marijuana law and broadened the government's power to seize property—as well as the retirement of Justice Sandra Day O'Connor, who voted in favor of many decisions reinforcing states' rights—may accelerate the trend.

Is the federalism revolution at an end?


Roderick M. Hills Jr. is professor of law at the University of Michigan. Roger Pilon is Vice President for Legal Affairs and B. Kenneth Simon Chair in Constitutional Studies at the CATO Institute.

Hills: 7/18/05, 03:46 PM
Revolution, Schmevolution.

The Rehnquist Court ended where it began—by imposing an extremely modest brake on the centripetal tendencies of American constitutional law. From the outset, the Court made it perfectly clear to anyone who bothered to listen that its ambitions for trimming back on national powers were modest and largely apolitical.

Consider, for instance, the Rehnquist Court's doctrine of enumerated powers. Starting in 1995, the Rehnquist Court trimmed back Congress' power to regulate interstate commerce with two decisions—Lopez, which struck down a federal law prohibiting gun possession within 1,000 yards of a school and Morrison, which struck down the civil remedy provisions of the Violence Against Women Act. In both decisions, the court held that it would be more suspicious of congressional regulations of "non-economic" activities and deemed that the regulated activities—gun possession or domestic violence—were "non-economic."

The "economic"/"non-economic" distinction, whatever its faults, has this virtue: It was intended to leave the New Deal revolution in national power completely intact. In effect, the Rehnquist Court announced that Congress had a blank check to regulate every aspect of any business enterprise—wages, hours, workplace safety, consumer safety, emissions into the air or water, discrimination against customers or employees, etc. What was reserved to the state's exclusive jurisdiction? Cultural and educational matters (hence, the suspicion of a ban on schoolyard guns), sexuality and family law, non-economic crimes of passion. Note that these topics revolve around issues that inspire maximum religious and moral conflict. In effect, the Rehnquist Court admonished the Red and Blue states to abstain from enlisting Congress to impose their brand of morality on the rest of the nation.

Was this policy ideologically slanted in a conservative direction? Not really. The Rehnquist Court's doctrine of enumerated powers has made it impossible for a Republican Congress to ban gay marriage. The doctrine also probably keeps Congress from banning affirmative action in colleges and universities or requiring states to observe draconian sentencing policies in their criminal law.

Was this policy "revolutionary"? Hardly. From the very beginning, the doctrine contained so many escape clauses and caveats that it imposes only the most modest restriction on Congress' powers. Raich (the recent medical marijuana case) reiterated that, if Congress were regulating some economic transaction (e.g., drug trafficking), then Congress could take any measure necessary and proper to make such regulation effective by regulating even non-economic activities (e.g., home-grown pot, which could be hard to distinguish from pot sold by traffickers). Likewise, Morrison observed that Congress could prohibit domestic violence if the perpetrator skipped out of the state or carried a gun that moved across state lines. At most, the court placed a speed bump, not a wall, in the way of nationalization of the Culture Wars.

One can tell a similar story about the Rehnquist Court's modest de-nationalization of individual rights. The Court refused to impose its own brand of liberty on the nation concerning property rights in Kelo, the recent case upholding New London's condemnation of private property for economic development. Likewise, the court deferred to state conceptions of equality, upholding the University of Michigan's affirmative action policy in Grutter. On religious freedom, the court deferred to the states when they favored churches with vouchers in the Zelman case or when they burdened religion by withholding scholarship money for theology students in Locke v. Davey.

In short, throughout its career, the Rehnquist Court trimmed back its own and Congress' power, to favor state power. The last term was pretty much the same as prior terms: A little devolution, not a big revolution, in a more or less non-ideological vein.

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Pilon: 7/19/05, 12:50 PM
Let's start on a note of uncertain certainty: Rick, your opening sentence notwithstanding, the Rehnquist Court hasn't ended—yet. It may soon, we imagine, but until it does, its "chemistry," with Justice O'Connor's replacement, could change in ways that none of us can predict. But I grasp at straws, because much as I wish it were otherwise, you're basically right—as far as you go. Over the past decade the Rehnquist Court has imposed "an extremely modest brake on the centripetal tendencies of American constitutional law." But in so concluding, you miss the forest for the trees, I fear, about which more anon. And you've introduced some confusion along the way.

Yet the basic point on which we both agree is no small matter: the Rehnquist Court did apply a brake. In 1995, after nearly 60 years of unrelenting federal expansion, the court said in Lopez that the power of Congress to regulate interstate commerce is not a power to regulate anything and everything. And Rehnquist didn't simply resurrect "states' rights." More fundamentally, he resurrected the centerpiece of the Constitution, the doctrine of enumerated powers, which holds that the federal government has only those powers the Constitution authorizes. But he did so in a very limited way: Wickard v. Filburn, the 1942 case that upheld the power of Congress, under the Commerce Clause, to regulate the amount of wheat a farmer could grow even for domestic consumption, remained standing, explicitly, which means, as you note, that economic regulation (and more) is still immune from the court's oversight. In short, the constitutional revolution the New Deal wrought, without benefit of constitutional amendment, remained untouched.

But the reasoning in Lopez, as Justice Thomas's concurrence made clear, barely scratched the surface. It's hard to be just a little principled. The ensuing decade has demonstrated that—and shown, at bottom, that we have here a court without a compass. Unclear about the scope of Congress's enumerated powers, it is even more unclear about the powers reserved to the states or the rights retained by the people.

Unwittingly, perhaps, you make that point as you struggle for a taxonomy of cases. Congress was left free to regulate business affairs, you say, but cultural and educational matters, sexuality, and family law were "reserved to the states' exclusive jurisdiction." Really? Lawrence v. Texas, the 2003 decision that rejected the state's effort to criminalize homosexual sodomy (rightly decided, I believe); Troxel v. Granville, the 2000 decision that overturned Washington State's grandparent visitation statute (right again); the just-decided medical marijuana (wrong) and Ten Commandments cases (the court got it right here)—those and many more such decisions dealing with "cultural" matters hardly left the states "exclusive jurisdiction." To be sure, except in Raich, the medical marijuana case, congressional jurisdiction was not at issue; but how often were "the Red and Blue states [trying to enlist] Congress to impose their brand of morality on the rest of the nation," which I take to be your point?

Perhaps Rick, you're right in thinking that the Rehnquist Court would tell states not to look to Congress for moral legislation, but how does that contention square with your conclusion that, "at most, the court placed a speed bump, not a wall, in the way of nationalization of the Culture Wars"? The court may have "trimmed back" on Congress's power, but I hardly think it trimmed back on its own, as you claim. What it failed to do, is rationalize its power. Yet when the Chief announced, "We start with first principles. The Constitution creates a Federal Government of enumerated powers," he opened countless eyes to the forest so long ignored. And that began the debate that may yet retrieve the Constitution from the trees of "constitutional law."

Hills: 7/19/05, 04:23 PM
Roger, you suggest that the Rehnquist Court is "a Court without a compass," having failed to provide clear principles dividing authority between the federal government (that is, a clear doctrine of enumerated powers) and the states or the states and private citizens (that is, the various 14th Amendment doctrines that protect individual rights and limit the states' police powers). Sadly—given that this exchange is, after all, a debate—I cannot disagree: Chief Justice Rehnquist has been a famously opaque jurist.

Nevertheless, I think that the court has been groping, in an inarticulate and halting way, towards a sensible and principled theory of federalism: a general presumption favoring states' power and two exceptions to that presumption. First, the presumption: On matters of intense, quasi-religious controversy—in particular, sexual morality, education of children, and family law—the court will presumptively defer to the states, by restraining Congress (through the doctrine of enumerated powers) and by restraining itself (by adopting a deferential attitude towards the 14th Amendment). Second, this presumption of deference will be suspended when Congress regulates goods or services flowing in a national market, because interstate competition for tax base prevents effective state regulation of this "economic" realm. Third, the states cannot be trusted with exclusive power to enact laws burdening a discrete and insular minority likely to be the victim of intense cultural, religious, or racial prejudice.

Lawrence v. Texas falls into the third category of decisions overturning state laws that stigmatize an intensely disliked minority group (gay and lesbian persons). So does McCreary v. ACLU, overturning a state policy that gave a boost to the majority's Protestant religion. Against McCreary, consider decisions where such majoritarian prejudice was missing, in which the Court upheld states' laws that both withheld (Locke v. Davey) or bestowed (Zelman, Witters, and Zobrest) state funds for religious education in general. Troxel actually confirms my view: Despite the result (reversal of a state judge's decision awarding visitation rights to grandparents), the plurality opinion emphasized that deference to states' decisions regarding family matters that accorded "some weight" to parental decisions—hardly an onerous standard for any state to meet.

Note that this federalism theory suggests that the court will not attempt to reinvigorate the Takings clause. The cases bear out this view: Despite its conservative credentials, the Rehnquist Court has preferred federalism over property rights, rejecting broad views of the "just compensation" clause in Tahoe-Sierra Preservation Council, Palazzolo, San Remo Hotel, and, of course, Kelo.

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Pilon: 7/20/05, 08:13 AM
We both agree, Rick, that the Rehnquist Court's federalism has often been unclear. That's not surprising, given that its decisions and opinions are often "determined" (in several senses) by one or both of the two moderates on the court. Let's try to find some points of disagreement, however, so we can have a debate.

From your two postings, my sense is that we have different conceptions of "federalism." You believe the court is groping toward "a sensible and principled theory of federalism." In a nutshell, (1) on matters of intense quasi-religious controversy the court defers to states by restraining both Congress and itself; but (2) that deference shifts to Congress for economic regulation and (3) to itself when "discrete and insular minorities" are at issue. You then cite decisions that seem to conform to that pattern, much as I cited cases in my post that didn't. (And I'm afraid we have different readings of Troxel.)

I commend your effort to make sense of the court's jurisprudence, but what you've outlined is essentially a policy approach to federalism—and the policy is not that of the Constitution but rather the nonsense that flowed from the 1937-'38 court, especially from (in)famous footnote four of Carolene Products. In 1937, following Roosevelt's notorious court-packing scheme, a cowed court effectively eviscerated the doctrine of enumerated powers, opening the floodgates to congressional regulation and redistribution, your point (2). Then a year later, the Carolene Court bifurcated the Bill of Rights, leaving property and economic rights to the tender mercies of state and federal legislatures while shielding political rights and the rights of "discrete and insular minorities," point (3)—shielding that has expanded over the years, but never in a coherent, systematic way. As for point (1), as I said in my last post, apart from an occasional foray into moral legislation (e.g., the 1991 flag-burning act), I don't see Congress often imposing morality on the states.

But what does any of that have to do with constitutional federalism? What you outline was a New Deal invention, written from whole cloth to make way for the New Deal's political activism. And I can only recoil when you write, "despite its conservative credentials, the Rehnquist Court has preferred federalism over property rights." The two are not opposed, unless you view federalism as mere "states' rights"— deference to the states, the Constitution aside. Real federalism is dual sovereignty, rooted in the doctrine of enumerated powers and hence in the classical theory of natural rights. On that view, power is legitimate only insofar as it has been delegated by those who have it, and then enumerated in a constitution, federal or state. That's the theory of legitimacy the New Deal revolution buried, replacing it with majoritarian will, restrained by judicial ad hocery. And that's what Thomas was getting at in his Lopez concurrence. He's a lone voice on a court largely oblivious to such principles.

Hills: 7/20/05, 01:07 PM
Here are the two issues about which we disagree. First, are the New Deal precedents a legitimate source of constitutional law? And does constitutionally protected federalism conflict with constitutionally protected property rights? I answer both questions "yes."

You think that the New Deal precedents—both political and judicial—were a usurpation. I think that they are such firmly ensconced precedents as to be, today, a legitimate source of constitutional authority. For what it's worth, so do both Justices Scalia and Rehnquist: Thomas stands alone. Sometimes political events confirm the constitutionality of a practice so thoroughly and for so long that those events become part of constitutional law. That's why President Madison refused to veto the Second Bank of the United States even though Representative Madison strenuously argued against the First Bank's constitutionality. According to President Madison, the meaning of the Constitution had been settled by a "political construction"—the massive political consensus in favor of the Bank—to which he yielded. I take the constitutionality of the New Deal precedents to be equally well-settled.

There is something odd about the contrary position—sort of like that of a grumpy Jacobite sitting in Tony Blair's London and dreaming of restoring the Stuarts. What's the point? Do you really think that the court should overturn, say, federal unemployment insurance? Federal minimum wage laws? The Wagner Act? Do you have the slightest doubt that, if the court were insane enough to attempt such a thing, We the People would rise up and amend the Constitution to reverse such a result? Why require such an Article V exercise, except as an expensive way of confirming the obvious—that the We the People approve of the basic New Deal system of federalism, under which the federal government has the power to redistribute wealth and regulate economic relations?

As for the relationship between federalism and property rights, it seems to me tautologically true that the Fourteenth Amendment's incorporation of the 5th Amendment's "just compensation" clause limits states' power and, hence, conflicts with federalism. This is certainly true if one means by "federalism" the theory that state governments ought to govern their own residents in matters primarily affecting those residents. Moreover, William Treanor's and John Hart's articles have thoroughly discredited the notion that the 5th Amendment's "just compensation" clause was ever understood by its framers or ratifiers to require compensation for regulatory burdens. Thus, fans of originalism and fans of federalism (I'm one of the latter, not the former) should join together to applaud the Rehnquist Court's gutting of the doctrine of regulatory takings in Tahoe-Sierra, Palazzolo, San Remo Hotel, and Kelo. I gather that you have a soft spot for originalism, so I invite you to join my applause.

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Pilon: 7/21/05, 02:48 PM
In no post yet, Rick, have you more clearly brought out the difference between us. To overstate just a bit, you stand for politics, I stand for law. To show that, let's take in reverse order the two questions with which you open immediately above.

You say it's "tautologically true that the Fourteenth Amendment's incorporation of the Fifth Amendment's Just Compensation Clause limits state power." Of course it does! Everything incorporated by the Fourteenth Amendment limits state power. That's why the amendment was written and ratified! But that doesn't mean it conflicts with federalism, as you claim—unless by "federalism" you mean "the theory that state governments ought to govern their own residents in matters primarily affecting those residents," which you do. The problem with that definition is that it's a political, not a legal, definition. It speaks to the political point of federalism, not, as I noted last time, to its legal implementation through delegation and constitutional enumeration. (BTW, Bernie Siegan and I, in different venues, have answered the Treanor/Hart thesis.)

That affords me a segue to your first question. The federalism of the original Constitution was changed fundamentally by the Civil War Amendments. Once ratified (delegation), those amendments enumerated new federal powers, stripping states of previous immunities. Ratification and enumeration turned politics into law, establishing a new relationship between federal and state governments, but did so within the original constitutional framework that established the legitimacy of the legal order initially.

The New Deal "revolution," however, took no such course. It was pure politics. Indeed, in the run-up to the court-packing scheme, when the "Old Court" was mostly standing its ground, limiting Congress and protecting property and economic rights, there was a lively debate within Roosevelt's circle about whether to change federalism again by amending the Constitution—or instead by packing the court with six new members. Roosevelt chose the latter course. He was rebuffed, but the court got the message and began rewriting the Constitution. But don't take my word for it. Rexford Tugwell, from Roosevelt's Brain Trust, addressed the constitutional issue quite simply: the New Deal programs, he said, amounted to "tortured interpretations of a document intended to prevent them."

And so you ask, "are the New Deal precedents a legitimate source of constitutional law?" To be a legitimate source, they themselves would have to be legitimate law, and they're not. You call them "firmly ensconced," believing the passage of time has turned these "political events" into "constitutional law." It hasn't, any more than the passage of time turned Plessy v. Ferguson's "separate-but-equal" doctrine into legitimate law. To be sure, time compromises the ability of the court alone to correct error, which is why the Rehnquist Court corrected only at the margins. But your vision is essentially lawless—the Constitution as an empty vessel to be filled by transient majorities. The contrast between the way the 39th Congress changed federalism and the way the Roosevelt administration went about it could not be more telling. It's the contrast between law and politics.

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Hills: 7/22/05, 08:16 AM
It's you v. McCulloch, Roger. Your post raises three issues: one issue of historical fact and two issues of constitutional methodology.

First, historic fact: Was the New Deal Revolution "pure politics," as you say? My University of Michigan colleague, Richard Friedman, and University of Virginia's Barry Cushman have both entirely exploded the myth that the Hughes Court was somehow cowed into changing constitutional doctrine by FDR's abortive court-packing scheme: Those doctrinal changes, Cushman notes, were in the works for decades before 1937. But you do not need to have to be a legal historian like Friedman or Cushman to know that the New Deal's Due Process revolution began with Nebbia in 1934, three years before FDR's court-packing shenanigans. Plenty of scholars and judges believed in good-faith in 1937 that the Necessary & Proper clause gives the political branches broad powers to address economic matters. You might disagree with their views, but it is flatly inconsistent with the historical record that this view was not a good-faith constitutional position.

Second, should the "political point" of federalism count as a source of constitutional meaning? You say "no," and I say "yes." Remember Marshall's admonition in McCulloch that we should deduce the "minor ingredients" of a constitution from the Constitution's "important objects"? The important object of the enumeration of powers was to give Congress the power "to legislate in all cases ... to which the States are separately incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual Legislation." (The quote comes from the Virginia Resolution, approved at Philadelphia as the blueprint for Article I's enumeration of powers). Surely this "important object" should count for something in construing the ambiguities of the Necessary & Proper clause. Do you really disagree? If the states really cannot competently regulate goods and services flowing in a national market, are you really saying that this incapacity is simply irrelevant to the "necessary and proper" scope of Congress' powers?

Third, you seem to argue that constitutional precedents are not binding when they are wrong. But this drains the doctrine of stare decisis of all force: The point of honoring precedent is to put an end to the otherwise endless re-litigation of whether a decision is right or wrong. The New Deal Court's understanding of Congress' powers has stood for more than a half century. McCulloch states that the constitutional decisions of political leaders "in the fair and open field of debate" are entitled to judicial deference. Do you disagree?

Maybe you are right that it is "lawless" in some sense for the Rehnquist Court to honor the New Deal settlement. But your concept of "law" so ignores the foundations of the American constitutional tradition—in particular, McCulloch v. Maryland—that I cannot recognize it as an American concept of law. Neither can the Rehnquist Court, which is why, I suspect, it has stuck with the New Deal.

Pilon: 7/22/05, 12:03 PM
Your first point, Rick, has me speaking of a pre-1937 "Golden Age," after which le déluge, when in fact I wrote, "the 'Old Court' was mostly standing its ground." Of course there was Nebbia, and before that Amber Realty, and so on virtually to the beginning—including McCulloch v. Maryland in which Marshall read "necessary" as "appropriate." Courts have often been wrong. But after the court-packing threat, the 1937-'38 court, as virtually everyone recognizes, systematized those mistakes globally. It eviscerated the doctrine of enumerated powers in 1937 by misreading not the Necessary and Proper Clause but the Commerce Clause (Jones & Laughlin) and the so-called General Welfare Clause (in truth, a phrase in the Taxing Clause) (Helvering). Then in 1938 it bifurcated the Bill of Rights (Carolene Products). Regarding the bona fides of the New Deal gang, as long as we're now into citing authority, against your authorities let me pose William Leuchtenburg's majestic The Supreme Court Reborn.

Second, I did not say that the "political point" or purpose of federalism should not aid in constitutional interpretation. I said, or implied, that your (functional) definition of federalism ignored the limitations on power entailed by delegation and enumeration. Thus, the purpose of the commerce power can help us understand its scope in particular cases; but it can't expand the power such that Congress could regulate, say, agriculture, manufacturing, education, or the use of homegrown marijuana. Yes, the "important object" of enumeration was to give Congress certain powers, but that object isn't an "open sesame." The object is given effect—and restrained—by enumeration. You mention the object, but ignore the limits enumeration entails, limitation made explicit by the Tenth Amendment. (Regarding the Necessary and Proper Clause, it can't expand Congress's authority; it simply ensures Congress those means, toward its enumerated ends, that are "necessary and proper.")

Finally, I said nothing about whether the court's mistaken decisions are "binding." But I erred last time when I wrote that the passage of time had not turned the New Deal precedents into "constitutional law." (Indeed, my main concern is the yawning gap between "constitutional law" and the Constitution.) What I meant, as the lines before and after make clear, is that the passage of time has lent no constitutional legitimacy to those decisions. Neither politics nor time can make a bad decision good. Plessy, Buck v. Bell, and Bowers v. Hardwick were wrong ab initio—and thereafter as well. So too for the New Deal precedents. As you well know, Rick, the claims of stare decisis are weakest in the constitutional context.

So, is it "lawless" for the Rehnquist Court to honor the New Deal "settlement," as you put it? Yes, if you take "the Constitution" seriously. Yet politically, about all the court can do is lay down markers and chip away, as in Lopez, until the zeitgeist shifts and we come to appreciate Madison's point, that the powers of the federal government are "few and defined." The New Deal Progressives could have changed that the right way, through amendment. Instead, they chose politics over law. It's no accident that, today, so much "law" is politics in disguise. To conclude, let the Rehnquist "evolution" continue.

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