The following program was sponsored by the Federalism and Separation
of Powers Practice Group at the Captial Hilton on Friday, October
17, 1997. Panelists included Professor John Duffy, Cardozo Law School;
Greg Katsas, Esquire, Jones, Day, Reavis and Pogue; Honorable Bill
Pryor, Alabama Attorney General; Jeffrey S. Sutton, Esquire, State
Solicitor of Ohio.
In order to fit the program into this newsletter, and to take account
of the greater formality typically associated with the written word,
each speakers remarks have been edited and revised to fit
this format. (Editors note.)
Mr. Jeffrey S. Sutton (moderator):
Federalism is a hot topic, at the Supreme Court, at the States,
and at the Federal Government, especially in light of five decisions
during the last five years: New York v. United States; United States
v. Lopez; Seminole Tribe v. Florida; and then mostly recently, during
the Supreme Court's last term, the City of Boerne v. Flores decision
and the Printz v. United States decision.
I think we have a great panel today, which presents at least three
different perspectives on this issue. We have an academic, a private
practitioner, and two representatives of the States.
Our first panelist is Professor John Duffy, who teaches primarily
administrative law at the Cardozo Law School. John clerked for Justice
Scalia, before that for Judge Williams, and also worked at the Office
of Legal Counsel here in Washington. John is going to focus on the
Greg Katsas, a lawyer at Jones, Day, Reavis and Pogue here in Washington,
will follow John. His topic will focus more on the City of Boerne
decision. Greg clerked for Judge Becker and then Judge Thomas and
then Justice Thomas on the U.S. Supreme Court.
Following Greg will be the Honorable Bill Pryor, the Alabama Attorney
General. General Pryor formerly was the Deputy Attorney General,
which put him in charge of all civil and constitutional litigation
in the State of Alabama, and before that, was in private practice.
And proving that we can be a little hypocritical when it comes
to separation of powers, I will be both moderating and speaking
when it comes to this panel.
I am currently the Ohio State Solicitor and clerked for Judge Meskill
on the Second Circuit and Justice Powell and Justice Scalia on the
U.S. Supreme Court.
If we could start with John.
Professor John Duffy: Thank
you Jeff. My talk today is on "Printz, Textualism, and Federalism."
But before I turn to Printz, I would like to make brief mention
of what I saw was the most important point in City of Boerne, and
that is that no Justice would defendor at least defend in
writingthe view that Congress's Section 5 power "to enforce"
the provisions of the 14th Amendment could be used to expand the
rights in the Amendment. Indeed, seven Justices affirmatively agreed
on the limits of the Section 5 power.
To me, City of Boerne seemed like the triumph of the power of textualism.
While the text does not answer every question, it does provide some
fixed points, some structure to the legal inquiry. "To enforce"
simply does not mean "to expand upon," and the victory
for textualists in City of Boerne was that no Justice was audacious
enough to dispute that pointa respect for text that just two
decades ago I think would have been impossible.
Indeed, it is worth noting that the dispute that did divide the
Justices in City of Boerne, the meaning of the phrase "free
exercise" in the religion clauses, is a dispute that the text
itself invites. For while it is plain that the clause confers a
right, it is also quite plain that the text is vague. To a textualist,
neither side of the debate on the meaning of the free exercise clause
is illegitimate, at least fundamentally illegitimate, and it is
not an embarrassment to textualismwhich establishes merely
a necessary condition for interpretive legitimacythat the
analysis can predict the difficult problems of interpretation without
itself resolving all of them.
Now, if City of Boerne seemed like a victory for textualism, Printz
seemed like a nadir. Indeed, Printz begins with a troubling concession
by Justice Scalia, that "there is no constitutional text speaking
to this precise question." And so the majority opinion asserts
that "the answer to the [plaintiff's] challenge [to the Brady
Act] must be sought in the historical understanding and practice,
in the structure of the Constitution, and in the jurisprudence of
this Court...in that order."
Well, for a textualist, this is not an auspicious start. True,
arguments based on the structure of the Constitution are based on
text, at least they are if they are done properly and not just done
based on pure assertion. But such arguments are relegated to a second
seat in Printz's hierarchy. Printz places such arguments, thankfully,
somewhat above the jurisprudence of the Supreme Court, but, unfortunately,
somewhere below historical understanding and practice. This is heresy
for a textualist: An innovative law shouldn't be unconstitutional
merely because it alters "historical practice"; it should
be unconstitutional only if it conflicts with something in the written
So this is the way I approached Printz, uneasy with its apparent
departure from the text, although I must admit I found the result
in the case appealing. The rule that the Federal Government shouldn't
be able to direct State officers does seem logical, and it also
provides a nice bright line.
But I think, in fact, the result in Printz is justified by the
text of the Constitution, and the textual justification is in Justice
Scalia's opinion. To see this point, it is first worth asking whether
Congress could have required gun dealers themselves to conduct reasonable
background checks of their customers. The dealers could accomplish
this by requesting whatever information their State makes available
to the public, or, perhaps if the federal regulations were more
burdensome, by hiring a private investigating firm to check out
Setting to one side any Second Amendment concerns, the question
would be whether such a law is unconstitutional on the theory that
the Federal Government was impressing the gun dealers into the service
of the Federal Government. Well, the answer is clearly no. Assuming
that the sale of the gun constitutes interstate commerce (and for
a moment, I'll also set aside Justice Thomas' concerns expressed
in his concurrence in Printz), then the statute is merely regulating
interstate commerce by imposing a duty on the individuals engaged
in such commerce. This is all quite traditional and well within
the textual limits of Congresss powers. It is on the same
footing as a law that requires sellers of livestock to inspect for
disease before selling in interstate commerce.
This first simple hypothetical is valuable because it reveals an
important difference between the gun dealers and State officers
such as Jay Printz. In selling guns, the dealers are engaged in
interstate commerce. In refusing to do background checks, the State
officers aren't engaging in any commerce at all, so Congress can't
rely solely on its interstate commerce power.
For a textualist, the legal issue then becomes whether the regulation
of the duties of State officers is within the "Necessary and
Proper" Clause of the Constitution. This issue is actually
discussed in Printz, though it is buried in the middle of Justice
Scalia's opinion and then only as a response to Justice Stevens'
dissent. Nevertheless, Printz holdscorrectly, I believethat
the regulation of State officers is not a "proper" law
for "carrying into execution" the enumerated powers of
Article I, Section 8. On this point, Justice Scalia cites an article
by Gary Lawson and Patricia Granger which argues that the word "proper"
in the Necessary and Proper Clause provides the correct textual
foothold for judicial decisions invalidating Congressional legislation
that violates the basic structural features of the Constitution,
The Lawson/Granger article is a fine piece, and I commend it to
your attention. But Printz could also have cited McCullough v. Maryland,
which does not read the Necessary and Proper Clause simply as carte
blanche, but instead states, "Let the end be legitimate, let
it be within the scope of the Constitution, and all means which
are appropriate, which are plainly adapted to that end, which are
not prohibited, but consistent with the letter and the spirit of
the Constitution, are constitutional." And the textual analysis
can go beyond just looking to the word "proper." Let me
introduce a second hypothetical. What if Congress has imposed the
duty of conducting the background checks not on State officers,
but on the local U.S. Attorney? This law seems quite obviously constitutional.
The Framers didn't leave this to chance, for they expressly conferred
on Congress a legislative jurisdiction over the departments and
officers of the Government of the United States. Not so coincidentally,
this power is in the Necessary and Proper Clause, which provides
in its entirety that the Congress shall have power "[t]o make
all Laws which shall be necessary and proper for carrying into the
Execution the foregoing Powers, and all other Powers vested by this
Constitution in the Government of the United States, or in any Department
or Officer thereof."
The Constitution vests the executive power in the President, and
the Necessary and Proper Clause (along with a few other clauses
in Article II that I won't mention right now), gives Congress the
power to carry into execution that power by imposing legal duties
on particular executive Departments and Officers. Of course, the
text indicates that even this power has its limits, but the important
point for Printz is the absence of any corresponding power over
State officers. This is, of course, an expressio unius argument,
which, while not conclusive, clearly suggests a direction for interpreting
the word "proper" within the clause.
One final piece of textual support is found in Article I, Section
10, Clause 2. This clause seems to be an exception that helps prove
the rule. It subjects all State laws respecting Imposts or Duties
on Imports and Exports "to the Revision or Controul of the
Congress." This clause gives to the Congress exactly what New
York v. United States held that the Commerce Clause does nota
legislative jurisdiction in Congress over State legislation. And
once we determine that the result in New York v. United States is
correct, then the result in Printz is hard to resist, because it
is hard to draw a proper line between legislative power and executive
Based on all this, I would suggest that the statement early in
the Printz opinionthat "there is no constitutional text
speaking to this precise question"was unnecessarily apologetic.
There is constitutional text, a lot of it, speaking to the question
of Congress' proper legislative powers, and to the extent that there
is no precise constitutional text conferring a general legislative
power over State officers, that is a powerful argument for the majority's
result in Printz.
With this light on Printz, we can see both that decision and City
of Boerne as continuing an important trend in the Supreme Court's
case law. The Court is reentering the business of carefully interpreting
the clauses in the Constitution that grant Congress power. After
the 1930's, I think the Court was, frankly, scared to do this. Almost
any argument tying legislation to a congressional power, particularly
to the Commerce Clause, would suffice. Now we can see that this
nearly complete deference is at an end. Just as City of Boerne takes
Section 5 and its limits seriously, so too do New York v. United
States, United States v. Lopez, and Printz take the Commerce Clause
and the Necessary and Proper Clause seriously. And this enterpriseinterpreting
the enumerated powers with careis a textually rigorous way
to protect federalism.
There is, however, another method to protect federalism. It is
based onand this is a quote from Printz"the underlying
postulates" of the Constitution. This method can be seen in
Printz, but is best reflected in Seminole Tribe v. Florida, which
ignored the words of the Eleventh Amendment in favor of some unwritten
postulates that lurked somewhere, "behind the words of the
This "unwritten postulates" method can also be seen in
National League of Cities v. Usery which began its analysis with
the concession that the Commerce Clause power was a "grant
of plenary authority to Congress," but then derived a special
exemption from that "plenary authority" for the States.
Well, from my description of the two methods, you can guess that
I favor the textual method, and I urge all true Federalists to do
the sameto embrace the Court's rediscovered enterprise of
interpreting the congressional powers faithfully and to think of
decisions like Printz, New York v. United States, and City of Boerne,
not as cases based solely on "underlying postulates" of
federalism, but as based on the textual limits of congressional
power. The alternativefederalism built on special unwritten
exemptions and unwritten immunities for the Stateswill be
no more hearty than the decision in National League of Cities. And,
moreover, such a federalism of exceptions for the States doesn't
restore any real federalism: So what if the States have a special
exemption from federal regulatory power, if all real power remains
located in Washington.
But the most important reason for adopting a textualist approach
is that it is the right approach. It is the Framers' approach to
federalism; it is the Constitution's approach to federalism. It
restores the federalism that James Madison spoke of in Federalist
No. 45 when he argued that federal authority would not be dangerous
to the States' retained authority because, "[t]he powers delegated
by the proposed Constitution to the federal government are few and
Mr. Greg Katsas: My general
topic today is Section 5 of the Fourteenth Amendment which authorizes
Congress to "enforce" the Due Process and Equal Protection
provisions of Section 1 of the Fourteenth Amendment.
My specific topic is the impact of the Supreme Court's decision
last term in City of Boerne v. Flores, which held that the Religious
Freedom Restoration Act ("RFRA") was not authorized by
Section 5, the first time in almost three decades that the Court
has invalidated any congressional statute on that ground.
My principal theme is that City of Boerne's treatment of Section
5 is somewhat similar to the Court's treatment of the Commerce Clause
a few terms ago in United States v. Lopez, the 1995 decision that
held for the first time in almost six decades that a congressional
statute was unauthorized by the commerce power.
Specifically, I think there are three similarities between Section
5 in City of Boerne on the one hand, and the commerce power in Lopez
on the other.
First, the Court in City of Boerne confronted a terrible body of
prior jurisprudence suggesting strongly that the Section 5 power
was, for all practical purposes, unlimited.
Second, the Court took somewhat seriously in City of Boerne, as
it had previously in Lopez, the doctrine of enumerated powers and
the proposition that the federal powers were in fact limited. The
Court recognized those limits in these cases and, indeed, it struck
down particular statutes for exceeding those limits.
Third, nonetheless, despite that improvement, the Court reaffirmed
in both cases the broad substantive scope of the powers at issue,
and also the significant degree of deference due to Congress in
determining whether particular statutes exceed the scope of those
The net result is that after these decisions, we are left with
a federal government that is much larger than the one envisioned
by the Framers of the Constitution and of the Fourteenth Amendment,
but still, at least, a federal government of limited powers.
To understand City of Boerne itself, I think you need to go back
to the prior Section 5 jurisprudence which consists primarily of
four cases in the voting rights area decided by the Court between
1966 and 1980: South Carolina v. Katzenbach, a 1966 case which upheld
Congress' power to suspend literacy tests in the South; Katzenbach
v. Morgan, another 1966 case in which the Court upheld the power
of Congress to ban literacy tests for Puerto Ricans educated in
Spanish; Oregon v. Mitchell, a 1970 case in which the Court upheld
Congress' power to suspend literacy tests nationwide; and, finally,
City of Rome v. United States, a 1980 case in which the Court upheld
the use of an effects test for pre-clearance requirements imposed
under Section 5 of the Voting Rights Act.
Now, what is important is that none of the state voting practices
at issue in any of these cases was itself unconstitutional. In Lassiter
v. Northampton Election Board, the Court had upheld the use of literacy
tests such as those at issue in the South Carolina case, the Morgan
case, and the Oregon case. And, finally, in Washington v. Davis,
the Court had held that the Equal Protection Clause reaches only
intentional racial discrimination, not facially neutral practices
that have a disparate impact on one racial group or another. The
state practice at issue in City of Rome was of the latter sort.
Now, as an original matter, you might think that if none of these
state practices is itself unconstitutional under Section 1, and
if Section 5 merely gives Congress the power to "enforce"
rights protected under Section 1, then Congress could not categorically
prohibit any of these practices.
The voting cases, of course, tell a very different story. They
establish beyond doubt that Congress, under Section 5, can prohibit
conduct that is not itself unconstitutional under Section 1, under
either of two possible theories, bothas applied in the voting
The first of these theories is what one might call a prophylactic
remedy theory, stressed by the Court in the City of Rome case, in
which the Court held that Congress can use any rational means to
implement the Section 1 constitutional protections. The Court reasoned
that if Congress finds that case by case adjudication under a constitutional
standard is insufficient to protect the constitutional rights at
issue, then Congress itself can impose prophylactic rules that range
much more broadly than does Section 1 itself.
The Court applied that rationale in City of Rome to uphold enormous
intrusions into state voting structures, even absent any close link
with intentional discrimination by the city in that case.
In City of Rome, the federal government barred the city from electing
commissioners by majority rather than by a plurality, even though
the Constitution itself requires a majority rule in the electoral
college, of course, for presidential elections. The federal government
in City of Rome also barred the city from using large districts
to elect its commissioners, the very approach that is constitutionally
compelled for election of United States Senators, and the very strategy
recommended by Madison in Federalist No. 10 to combat the problem
The record in the City of Rome case suggested that the city had
not engaged in unconstitutional intentional discrimination for almost
two decades. The Court sanctioned the federal governments
serious intrusions with no apparent consideration for the intrusiveness
of the federal response, the extent of any constitutional violations,
or the importance of the state interests at stake.
If City of Rome was bad, Morgan was worse. In that case the Court
suggested that Congress has the power to go beyond Section 1, not
just on a prophylactic remedy theory, but that Congress actually
has the power to redefine the substance of the constitutional protections
under Section 1. And if that sounds inconsistent with Marbury v.
Madison, it is, but nonetheless, it was at least a plausible statement
of Section 5 law prior to City of Boerne.
In City of Boerne itself, the Court addressed the constitutionality
of the Religious Freedom Restoration Act, a federal statute which
required states and the federal government to create exemptions
from neutral laws of general application in order to accommodate
specific religious practices of particular individuals, even though
the Court itself, a few years earlier, in Employment Division v.
Smith, had held that such accommodation was not constitutionally
compelled. The Court held that this statute was not authorized under
In City of Boerne, the Court either established or reaffirmed four
important propositions. First, Congress cannot redefine the substantive
scope of Section 1. The Court clearly rejected the substantive theory
of Morgan, reasoning straightforwardly that the text of Section
5, which speaks of enforcement, is simply not consistent with the
suggestion that Congress can redefine the substantive scope of constitutional
Second, with respect to the remedial theory, the Court reaffirmed
that Congress can, under Section 5, prohibit conduct that is not
itself unconstitutional under Section 1. The Court thus rejected
a narrow reading of enforcement as referring only to providing for
judicial or administrative action.
But, third, and most important of all, the Court said that in order
to be remedial in the required sense, the statute must exhibit congruence
and proportionality between the constitutional violations at issue,
and the means adapted to that end. And in that concept, we see a
significant cutback on some of the implications of City of Rome,
where the Court seemed unconcerned with any sense of proportionality
In City of Boerne, the Court held that RFRA was so out of proportion
to any plausible record of intentional religious discrimination,
which is what Smith required to establish constitutional violations,
that the statute simply could not be understood in any remedial
The Court contrasted RFRA to the voting cases, noting that in the
voting cases, there was much more evidence of unconstitutional discrimination
than there was evidence of unconstitutional religious discrimination
in the RFRA context.
Fourth and finally, the Court reaffirmed the principle in the earlier
cases that Congress has "wide latitude" in choosing remedial
measures under Section 5. The Court, however, did not give much
guidance as to how one would determine the point at which the statute
goes too far or, in City of Boernes terms, the point at which
it becomes disproportionate to any appropriate remedial response.
Instead, it conveyed a sense that if RFRA were constitutional, then
there would be no limits.
Briefly, I wish to make three points concerning the implications
of the City of Boerne decision. First, with respect to RFRA itself,
I think it is an open question whether RFRA survives as applied
to federal action versus state action. The question is not addressed
in the decision, but I think you could make at least a decent argument
that it is permissible for Congress to restrain the federal governments
assertion of its own powers in that way.
Second, can the application of RFRA to the states be upheld under
the commerce power? Three years ago I think one would have had to
say yes. But that brings us back to the Court's decision in Lopez,
which drew a fairly sharp distinction for Commerce Clause purposes
between legislation that, on its face, addresses economic activity,
and legislation that, on its face, addresses other kinds of activity.
Lopez strongly suggested that the very broad, modern, Commerce Clause
doctrines have either no application or at least lessened application
with regard to statutes such as RFRA that address, on their face,
I think it is plausible that the Court would find the same vices
in RFRA under the commerce power that it found in the Gun-Free School
Zone Act in Lopez itself. But there is a lot of broad Commerce Clause
precedent and some uncertainty in just how far Lopez goes, so it
seems we can't make that prediction with a high degree of confidence.
Third, City of Boerne raises questions about the extent to which
other statutes will survive Section 5 review. In that case, Professor
Laycock filed a brief essentially telling the Court that if you
strike down RFRA, you will put a great number of other statutes
at risk, including a large number of statutes that replace a constitutional
intent test with a statutory effects test.
Given what the Court did in City of Boerne, that might or might
not be true. I think that in future cases you will see the Court
balancing the extent of the constitutional violations at issue against
the breadth of the legislative response. That does not give us a
very bright lineand perhaps not a very principled linebut
given a choice between that sort of world, and a world where there
is a bright-line rule that federal power is unlimited, I think most
of us would agree that we are now better off.
General Bill Pryor: Good
afternoon. It is a real pleasure to speak to a Federalist Society
Conference in D.C. Sometimes I kid my friends in the South that
I am the Johnny Appleseed of the South for Federalist Societies.
I founded the Tulane Chapter in 1985 and with Harvey Koch's help,
started the New Orleans Lawyers Chapter in '87, the Birmingham Lawyers
Chapter in '89, and, more recently, the Montgomery Lawyers Chapter.
When I was a law student in the mid-1980s, my Tulane professors
lectured that federalism and the notion of the 10th Amendment as
a limitation of federal power died with the decision of the Supreme
Court in Garcia v. San Antonio. In their dissents in that case,
however, Chief Justice Rehnquist and Justice O'Connor predicted
otherwise, and they were vindicated in this last term. Now we know
that my law professors, fortunately, were what I always thought
But I have a warning: do not uncork the champagne yet for there
is still much work to be done and much cause for concern.
I would like to give somewhat of an overview of where we have been,
where we are now, and where we may be going in this area, but I
take a little broader view of federalism than perhaps we have been
speaking about here, and think that we must include, not only the
cases that rely explicitly on the 10th Amendment, and the Commerce
Clause, and the 11th Amendment but also the cases where the Court
intruded upon traditional state authority by creating individual
liberties with no basis for doing so.
To understand where we are, we must know how we got here. The current
trend of federalism decisions began several years ago. In Gregory
v. Ashcroft, for example, the Court held that the Age Discrimination
in Employment Act did not prohibit the State of Missouri from requiring
the retirement of state judges at age 70. Justice O'Connor wrote
for the court a provocative statement, though it sounds axiomatic:
"As every schoolchild learns"that is to be distinguished
from every law student"our Constitution establishes a
system of dual sovereignty between the state and federal government.
Through the structure of its government and the character of those
who exercise governmental authority, a state defines itself as a
sovereign." The Gregory Court reasoned that the mandatory retirement
age for state judges in Missouri was an important provision in the
structure of the state government that could not be overridden by
Congress at least without a plain statement of that intention.
A year later, in New York v. United States, the Court ruled that
Congress lacked the power to commandeer the legislative processes
of the states by directly compelling them to enact and enforce a
federal regulatory program. Law professors such as Mark Tushnet
still predicted that the New York case was, "unlikely to be
the foundation of a useful constitutional law of federalism."
Three years after New York, of course, came United States v. Lopez
and Missouri v. Jenkins. In Lopez, the Court did not rely upon the
10th Amendment, but held that the Gun-Free School Zones Act case
exceeded Congress' authority under the Commerce Clause, perhaps
the most provocative development yet. In Jenkins, the Court held
that a Federal District Court had exceeded its remedial authority
in an 18-year-old school desegregation case. The Jenkins Court concluded
that the ultimate inquiry is whether the state has complied in good
faith with the decree and eliminated the vestiges of discrimination
to the extent practicable.
Then, in the 1995 term came Seminole Tribe v. Florida. In that
case, the Court held that Congress could not abrogate the sovereign
immunity of a state, as protected by the 11th Amendment, when the
power that Congress sought to exercise derived from the Commerce
Printz finally disproved Professor Tushnet's prediction regarding
the New York case. In Printz, the Court held that Congress could
not commandeer state officials in the enforcement of the Brady Handgun
Law, and Justice Scalia explained for the Court that this holding
followed directly from the reasoning of New York.
In City of Boerne v. Flores, the Court held that Congress could
not create civil rights enforceable against the states by relying
upon Section 5 of the 14th Amendment.
Printz and Boerne were certainly important. But there were a few
other decisions in this term that were also important in terms of
federalism. Two decisions were Washington v. Glucksberg and Vacco
v. Quill, in which the Court upheld unanimously the authority of
the States of Washington and New York to proscribe the assistance
of suicide. In so doing, the Court limited the meaning of a radical
sentence in the decision of Planned Parenthood v. Casey, where the
Court reaffirmed its creation of a right to abortion, by stating,
"At the heart of liberty is the right to define one's own concept
of existence, of meaning, of the universe, and of the mystery of
human life." Had the Court affirmed the decisions of the Ninth
Circuit and the Second Circuit in these two cases, the Court would
have, of course, swept aside long-standing laws of more than 40
states which prohibit the assistance of suicide.
Finally, the Court gave the states more breathing room in church-state
relations in Agostini v. Felton, by ruling that public school teachers
could be sent into parochial schools to provide remedial education.
The Court overruled its 1985 decision in an earlier generation of
the same case.
I have two warnings about these decisions. First, let us not forget
the bad decisions of the Court over the last few years. In the 1992
case of Planned Parenthood v. Casey, the Court preserved the worst
abomination of constitutional law in our history. Indeed, the radical
language of the Casey decision led directly to the confusion in
the lower courts about assisted suicide laws.
In some contexts the Court has been both anti-democratic and insensitive
to federalism. In 1995, the Court deprived the people of each state
the right to limit the terms of their Congressmen. A year later,
in the name of the 14th Amendment, the Court overturned the vote
of the people of Colorado, who amended their state constitution
to prohibit special privileges or rights for homosexuals. And in
the same term, the Court ruled that the people of Virginia were
somehow prohibited by the 14th Amendment from maintaining an all-male
military academy. Even the Chief Justice concurred, never mind that
for more than a century after the 14th Amendment was enacted both
the federal government and many state governments maintained all-male
military academies. Never mind the fact that the people of the United
States did not ratify the Equal Rights Amendment. We now have new
rules of political correctness for decision making in the equal
The second warning I offer is to count the votes. Gregory v. Ashcroft,
where much of the federalism work began, was a 5 to 4 decision.
New York, a year later, was 6 to 3, with Justice Souter then in
the majority. Lopez, where the Court finally limited the reach of
the Commerce Clause, was a 5 to 4 decision. Seminole Tribe was 5
to 4. And in this term, Printz was decided by a 5 to 4 vote.
Before we celebrate the triumph of federalism, we also need to
see how the Court will apply its recent good decisions. First, we
need to see what emerges from the Boerne and Seminole Tribe decisions.
Will the Court curtail other creations of civil rights by Congress
that are beyond the terms of the 14th Amendment?
Second, we need to see what emerges from the Printz decision. For
example, how are the so-far unsuccessful challenges to the motor
voter law and other federal statutes going to proceed?
Third, will the Court find other instances where Congress has overstepped
its authority under the Commerce Clause? Will the Court, for example,
strike down any other federal criminal law that is really only a
Fourth, in the area of abortion, how will the Court apply the undue
burden test of Casey to the laws that are working their way through
the system right now, such as the state partial-birth abortion laws?
Will the Court allow some democracy in this area?
Fifth, will the Court continue to modify the errors of its case
law that created the so-called "wall of separation" between
church and state and give a little more breathing room?
In sum, let us come back in a few years and see if it is time for
the celebration to begin.
Mr. Jeffrey S. Sutton:
The interesting question to me is what the various federalism cases
from the last five years portend. Some say that the Court was merely
reminding lawyers and the public that there are separation-of-powers
lines out there and that the Court is going to respect them.
Others say that the decisions mark the beginning of a new era in
the Courts federalism jurisprudence. I cannot predict which
set of prognosticators will be correct, but I can offer four suggestions
that will improve the climate necessary for federalism to flourish.
First, the public has to understand that the charges of judicial
activism that have been raised, particularly in the most recent
term, are simply inaccurate. The charge goes like this: how is it
that Justices who believe in judicial restraint are now striking
down all these federal laws? The argument, however, rests on a false
premise. In a federalism case, there is invariably a battle between
the states and the federal government over a legislative prerogative.
The result is a zero-sum gamein which one, or the other law-making
power must fall.
The City of Boerne case proves the point. When Congress enacted
RFRA, it presumably looked at the Constitution and asked itself,
do we have power to do this under Section 5 of the 14th Amendment?
They are entitled to deference when they make that call. States
and cities, however, were engaged in precisely the same process
when it came to a law like RFRA. The citizens of Boerne, Texas thought
they, too, had lawmaking power in this area specifically,
to enact local zoning laws. And they also had a responsibility to
obey the United States Constitution. Unlike Congress, they thought
that it gave them permission to exercise their zoning authority.
There's nothing that suggests Congress is any better at figuring
out what the Constitution means than the States. There is no presumption
one way or another. State and local leaders are entitled to a presumption
of constitutionality when they act, as is the federal government.
Under the circumstances, a Court decision to strike RFRA is no less
"activist" than a Court decision to strike a local lawmaking
Second, the public needs to understand that federalism is ultimately
a neutral principle. Federalism merely determines the allocation
of power; it says nothing about what particular policies should
be adopted by those who have power. Too often, however, states and
localities sacrifice federalist principles in order to obtain near-term
politically-favored results. The public debate occurs not on the
grounds of structural guarantees of the Constitution, but on the
grounds of the substantive legislation at issueare you a supporter
of religious liberties or are you not a supporter of religious liberties?
It strikes me that states and localities don't deserve any more
victories at the Court if they can't develop a little more courage
when it comes to litigating these structural issues. It is frustrating
that, in pursuit of particular political goals, the states are not
rising up together and defending their authority against encroachments
Nor is defending these structural guarantees inconsistent with
pursuing other substantive policy goalsthey just must be pursued
at a different level. In seeking to invalidate the federal RFRA,
we stated that if RFRA is struck down, we will propose state legislation
along the same lines the day the law is struck. And that's what
we did. At the end of the day, we ought to have 51 different RFRAs.
Third, if federalism is going to continue to be relevant, and there
is going to continue to be a movement in the direction of delegating
more authority to the states, a lot of that is going to have to
come from Congress. Even though many of our congressional leaders
started out as State Attorneys General, as state legislators, or
as state governors, many of them seem to forget the state role in
our system. I would hate to think that the way federalism works
in this country is that good government leaders are trained at the
state level, only to then to move Washington in order to exercise
as much power as is possible.
Fourth, it is important to convince those who believe in expansive
individual rights that they too can benefit from a strengthened
federalism. If there are going to be delegations of law making authority,
there has to be delegations of authority when it comes to protecting
individual rights. And states have got to construe their constitutions
carefully, and independently of the United States Constitution.
The reason this is an important development for federalism is that
it is the only way to convince the public that the structural guarantees
will have a happy ending. If federalism is going to get anywhere,
it has to be because people understand that it actually can work
in the direction of individual rights and not just in the direction
of governmental power.
There is one good exampleit is in the area of school funding.
There was a case in the early 1970s at the United States Supreme
Court called San Antonio Ind. School Dist. v. Rodriguez. The issue
in Rodriguez was whether impoverished schoolchildren had an equal
protection right to the same or similar education to those in wealthier
areas of Texas. The Court, by a 5-4 vote, held that this was not
something the U.S. Constitution establishes as a baseline for the
Since Rodriguez, all of that litigation has shifted to the state
level. And in Ohio, I litigated and just lost a case on this very
score. While I am not happy about it, what is good about decisions
like this is that even when you lose, the problem is still resolved
at the local level. The Ohio Supreme Court is going to have to come
back and revisit this issue. It is going to have to tinker with
it in the context of what Ohio legislators can do, and that is something
the people of Ohio have a little more control over than they would
if these decisions were made in Washington, D.C. That strikes me
as the real value of federalism and why we ought to find a way to
continue to push it in the direction it is going.