Narrowing the Nation's Power

The Supreme Court Sides with the States

John T. Noonan, Jr.

Prologue: A Recurrent Struggle Is Resumed

If you were a writer whose short stories were published by an ethnic press affiliated with the University of New Mexico, you would be justifiably surprised to learn that, when your publisher disregarded your copyright, you could not sue for damages because the press was a sovereign entitled to a sovereign's immunity from suit. If you were a professor of business at the University of Montevallo in Shelby County, Alabama, and were passed over for a raise because of your age, you would be understandably indignant to learn that your university, classified as a sovereign, could not be brought to court for violating federal law against discrimination based on age. If you were a woman attending a state college and you were raped by several members of the football team, you would be more than outraged to discover that, when state authorities did nothing to punish the rapists, federal law was helpless to make up for their deficiency. Yet these and similar results have been reached in the last five years because of judgments of the Supreme Court of the United States.

The results are incomprehensible without an understanding of the legal doctrines on which they are based. The doctrines are abstract. Abstractness gives them an appearance of depth they do not deserve. They do, however, have to be put in the context provided by the constitution of the United States, which governs one nation and fifty states. It is as the protector of the fifty states that the Supreme Court has developed the doctrines that were decisive in these cases.

"[T]he States entered the federal system with their sovereignty intact." If written in 1791, this sentence would have been understood as an anti-federalist's reservation as to the constitution. Uttered fifty years later in 1841, it would have expressed the new sectionalism and, in particular, the sensitivity of the South to any Northern encroachment on its peculiar institution of chattel slavery. But this statement was not made in 1791 or 1841. It was made in 1991 and was not made by an anti-federalist or a potential secessionist. It was made by the Supreme Court of the United States.

The Supreme Court repeated this statement with approbation in 1997 and again with approbation in 1999. It is foundational for the current court's claim that the immunity of sovereigns is enjoyed today by each of the fifty states. To anyone familiar with the precedents of that court or with the text of the constitution of the United States or with the history of the Civil War, it is an extraordinary statement.

In modern jargon, "federalism" is sometimes the caption used to describe the championing of the states at the expense of the nation. It is a confusing misnomer. The old slogan "states' rights" was more accurate in catching the goal of the tendency. Federalism, in its classic use, stands for the recognition of the role of the states in the spheres that the constitution allots them in a framework explicitly conferring great powers on the national government. We are not a confederacy of sovereigns as the secessionists believed. Nor are we subjects of a single unitary government. Our frame of government is more astutely designed. As James Madison, a principal designer of it, expressed the matter, we have "neither a national nor a federal Constitution, but a composition of both." To make "federalism" a slogan for states' rights is to contort the original meaning and to suppress the national component in the original design.

Sovereignty is an ancient concept, and the corollary of sovereignty, to which the statement of the Supreme Court leads, is the immunity of the sovereign from suit, a concept of the common law as old as the monarchy of England. Both concepts—sovereignty and the accompanying immunity—have been given a modern gloss by the Supreme Court that expands them to institutions sponsored by the fifty states. Universities, university presses, university research laboratories, as well as a multitude of other enterprises run by the states, now appear in the robes and dignity of sovereigns. The fifty sovereign states have multiplied into over two thousand entities. The friend of the fifty states, the court has extended to all of them the sovereign's prerogative of freedom from being sued in court for cash.

The ancient and now expanded concepts of sovereignty and sovereign immunity have become of great importance to the Supreme Court and to the country. The concepts have become the court's way of restricting the powers of Congress and enlarging the areas where the states can escape effective control by Congress. Mixed with new criteria created by the court to limit lawmaking by Congress, the sovereign immunity of the states is at the center of an explosive package disturbing the ascendancy of the nation over its parts.

Congress can make laws where the constitution grants it power to make laws. The constitution does that in two principal places. Article I gives Congress authority to legislate on specific subjects, including the coining of money, the making of patents, and the regulating of interstate commerce. These express powers were construed by the Supreme Court under John Marshall to imply other powers, such as the power to create a national bank and to enact any law adapted to the achievement of the express powers.

Under its express powers, Congress can create standards that are as applicable to the fifty states as they are to any individual. The standards apply to the states, but, so the Supreme Court has now determined, they cannot be enforced by a private person getting damages from the states. The standards exist, giving rights to private persons without providing them a monetary remedy. A right without a remedy is a strange animal, as strange in the legal world as a dog with a bark and without a bite in the zoological world. Such is the consequence, the Supreme Court has said, that flows from the sovereignty of the states.

Congress also has power to make laws under the fourteenth amendment. Enacted after the Civil War, the amendment provides that no state shall deprive any person of life, liberty, or property without due process of law or deny to any person the equal protection of the laws. The amendment gives Congress the power to enforce these provisions "by appropriate legislation." Because the amendment explicitly speaks of the obligation of the states, Congress does have the power, so the Supreme Court has held, to enact legislation subjecting the states to suit. But the Supreme Court has added a qualification restricting even this power. According to the court in 1997, legislation that is appropriate must meet new criteria now set by the court. In the court's words, "There must be congruence and proportionality between the injury to be prevented or remedied [by the legislation] and the means adopted [by the legislation] to that end." "Congruence and proportionality"—these are the criteria Congress must meet. The court determines whether Congress has met them.

Like the statement on the intact sovereignty of the states, this pronouncement was no dictum, no velleity, no ephemeral notion. It was at the heart of an opinion invalidating a law passed almost unanimously by Congress. It has been repeated in subsequent decisions holding void other acts of Congress. It is not a position that will lightly be abandoned. It effects a shift of power from Congress to the federal courts. It makes the federal courts the overseers of what is normally a matter of legislative judgment. As employed by the Supreme Court, the criteria also effect a shift of power from Congress to the states.

The criteria that Congress must meet on pain of the voiding of its legislation work in tandem with another new criterion also announced in 1997 by the Supreme Court. Legislation under the fourteenth amendment, the court then declared, must be based on a legislative record sufficient to demonstrate to the court that there is in fact a large wrong or evil that Congress is acting to remedy. Before Congress can lawfully act, it must have before it, the court has stated, a history of "widespread and persisting deprivation of constitutional rights."

This criterion means that the federal judiciary, from the Supreme Court itself down to the federal district court in Guam, may, and indeed must, treat Congress the way courts would treat an administrative agency, whose work will be set aside on appeal if the court finds the record made by the agency not substantial enough to justify the agency's rulings. Rigorous in itself, this criterion has been made more rigorous by the Supreme Court's dismissal of what it has styled "anecdotal evidence," with the implication that stories testified to by witnesses before congressional committees are not enough to justify legislation. In this way an act of Congress is subjected to stringent judicial scrutiny to determine the nationwide extent of the evil against which the act is directed. In contrast, the Supreme Court's own announcement of constitutional law, binding on the whole country, is based on the record compiled in a single case.

The extraordinary criteria created in 1997 have meshed with the court's doctrine on sovereign immunity to effect what the court sees as the restoration of the autonomy, the dignity, the sovereignty of the fifty states. It is on their behalf that the court has labored. It is on their behalf that it has created the new criteria and extended to the fifty sovereigns it seeks to befriend a significant, although not comprehensive, immunity from suit.

Not as a necessary corollary of these positions but as an understandable offshoot of the mentality and convictions undergirding them, the court has been unwilling to see inaction by the states as a breach of the fourteenth amendment. State action, it knows, is what that amendment governs. In law when there is a duty to act, the failure to perform the duty is action of the gravest kind. Holding unconstitutional the Violence Against Women Act, the Supreme Court has not acknowledged this principle. The quasi-autonomy of the states would have been compromised by its application.

The decisions now to be reviewed have been possible because the constitution has been interpreted by the Supreme Court as confiding to that court the power definitively to interpret the constitution. The power of interpretation functions as the power to revise, restate, remake the constitution, so that the Supreme Court becomes the supreme authority in the land. Robert Jackson, when attorney general of the United States, wrote a book describing the battles, recurrent in our history, of the two elected branches of government with the appointed, life-tenured judiciary that possesses the power to interpret the constitution with finality. He predicted that the battles would resume because the conflicts are inherent in the structure created by the constitution. Jackson entitled his book The Struggle for Judicial Supremacy, a title that seemed to imply that it was the story of an effort to attain a desirable end. That implication was denied by the book itself. The court's struggle for supremacy over all branches of government, Jackson argued, had been defeated, would resume, and must be resisted again.

The struggle Jackson foresaw has come again. It has come, in part, because a tension between the nation and the individual states is built into the constitution, and there must be some ebb and flow of power between them. The ancient philosophical tension of the One and the Many takes concrete form in our government. The current court has thrown itself on the side of the many states, seeking to sustain a structural role for them, to bolster their status and to assure a limited autonomy. Because of the overarching federal government, the autonomy must necessarily be limited, the sovereignty of the fifty states must always be a quasi-sovereignty, precariously preserved. Mixing old doctrine and new, the Supreme Court is making a mighty effort to put the states in what the court conceives to be their rightful place.

Newspapers like to predict outcomes of cases in terms of the president who appointed the judges. It's a crude predictive device. Far more important is the life experience of each judge. In most of the cases considered in this book, five appointees of three Republican presidents have outvoted two appointees of a Democratic president and two appointees of two Republican presidents. Presidents and parties will not explain the votes, and I do not intend to enter into a psychobiography of the justices.

I do mention in the text or in endnotes the names of the federal district and circuit judges who participated in the cases. Connoisseurs of the judiciary will appreciate this information, often not provided by the press. And I do identify the members of the Supreme Court majority and the minority in endnotes not stressing the play of personalities.

I focus on the institution rather than the individuals within it precisely because what is happening is an institutional drift, an institutional activity. Individuals, no doubt, play a part. But, as Jackson observed, the institution has more influence on individuals than individuals have on the court. There are divisions in the court. In this area of law, five to four has become the rule. The dissents have had force and eloquence. They are auguries of a better time. Yet sovereign immunity itself is an old judicial invention. It has been expanded without opposition, and, at the time of the court's creation of the new criteria for congressional action, not a single voice on the court was raised in criticism. It is, moreover, not only the individual justices who have a role, but also their law clerks, whose research and writing, especially in the production of histories of constitutional provisions and precedents, underlie the court's opinions. The leadership of the court is also significant. The court cannot take a sharp turn, as it has here, without an agenda and a head. It is better, at least for the purpose of showing the present problems, to look at the court as it functions collectively under its chief.

To emphasize the newness, the unprecedentedness, the surprisingness of certain court decisions in this area is not the same as saying they are wrong. The new departures have been made with great deliberateness, great sincerity, great conviction that they are essential to the preservation of our federal form of government. A number of John Marshall's opinions were also new, unprecedented, and astonishing to many of his contemporaries.

The new constitutional decisions, it is true, do not depend on any words in the constitution. They are boldly innovative. It was once asserted by some members of the present court that decisions were wrong if they were unfaithful to the text of the constitution or lacked fidelity to the original intent of its framers. These criteria are no longer used by these members who form part of the majority of the present court and denounce "ahistorical literalism" in reading a constitutional provision. The court's rejection of "ahistorical literalism" is a turn toward a more adventurous reading of the constitution.

"Activist judge" and its polemical counterpart "strict constructionist" probably should be banished from the political lexicon. The terms should be banished because they cannot distinguish one set of judges from another. The present court is composed of judges often categorized as conservative but in fact highly original in their treatment of the constitution. It is an illusion to suppose that they are less inventive than their predecessors in their interpretation of constitutional texts.

A standard that depends on an illusion is harmful. There are students of politics who maintain that illusions are necessary to preserve the public order or the public's confidence. They say that no institution can be transparent. I reject that unproved contention and reject it all the more vigorously when it is applied to distort discourse about something I'm familiar with. The idea that "activism" is a helpful or accurate or meaningful category for judging the Supreme Court of the United States is an illusion.

Banish the illusion, what are the criteria for judgment? One criterion is logic. A position that is a contradiction in terms is intolerable in any rational discourse. It is my contention, to be developed in the body of this book, that such a contradiction sits at the center of the court's application of the rule of sovereign immunity.

If we could get rid of the illusion fogging debate and the oxymoron masquerading as law, a modest goal would be to set out principle not broken by multiple exceptions. Law without any exceptions is not possible. A principle with many exceptions is barely a principle. Such is the tattered condition of state sovereignty that the current Supreme Court has claimed as a fundamental principle.

Worse still is a principle without a rationale for its existence or a rationale to guide its expanded application. Such is the case of the immunity now accorded the fifty states. No justification for the immunity, so I will argue, has been shown. No limit has been found to its extension to the most ungovernmental of state-promoted activities.

It is my observation in "The Battle of Boerne" that the Supreme Court, in repelling what it saw as an invasion of the judicial domain by Congress, invented criteria for Congress that invaded the legislative domain. It is my contention, developed in dialogic form in the following two chapters, that the Supreme Court, as the devotee of dignity and the hitchhiker of history, has embraced with mistaken enthusiasm a doctrine of state immunity that is overextended, unjustified by history, and unworkable in any consistent way. "The Sovereign Publisher and the Last of the Menu Girls" and "Perhaps Inconsequential Problems" show the unhappy interaction of the new legislative criteria with the doctrine of immunity in the application of the criteria to very old legislation protecting intellectual property and to comparatively new legislation assuring equality to the elderly and the disabled. "Gang Rape at State U." focuses on Congress's effort to provide women with the equal protection of the law, and the Supreme Court's hostile response, in the name of individual liberty and state autonomy, to that effort. "Sovereign Remedy" sets out what I believe should be said and done now in the face of the present danger to the vital balances of our organic national life.

For principle, suppose we turn to the purposes of the people of the United States as the people expressed them in the preamble to the constitution: "to form a more perfect Union, establish Justice, insure domestic Tranquility . . . and secure the Blessings of Liberty."

These grand phrases, it might be thought in a lawyer—like way, are empty, to be filled in by the politics of the day. It is my endeavor here, however, to lay them as criteria alongside the facts of particular cases and to ask if the results of these cases can be squared with the announced purposes of our constitution. Do decisions that return the country to a pre—Civil War understanding of the nation establish a more perfect union? Are decisions just that shield not only the states but lesser appendages of the states from paying for the wrongs they commit? Do decisions that leave the elderly and the disabled with inadequate remedies for unequal treatment establish justice? Do decisions that dislodge patents, copyrights, and trademarks from assured protection insure domestic tranquility? Do decisions that deny Congress the power to protect the free exercise of religion secure the blessings of liberty? Do decisions that leave women less protected by the law than men achieve any of the constitution's ends?

The rhetorical nature of these questions points to the answers I give. The results I criticize were reached largely, although not wholly, by means of the doctrinal devices—state sovereign immunity, congruence and proportionality of legislation, and a record of evils to be eradicated—that have no footing in the constitution. Remove these obfuscations, it will be clear that the court's decisions do not survive the test of serving constitutional purposes.

In the constitutional balance reached by the court, the fifty states weigh more heavily than the very large numbers potentially affected adversely by the court's decisions—for example, the 4.5 million employees of the fifty states and state-related entities; the over 5 million holders of patents; the 10 million holders of trademarks, the 100 million holders of copyright; the over 150 million believers in faiths whose requirements can transcend the interest of government; and the one-half of the population distinguished by gender as women. Only a small fraction of these persons will actually be injured as a consequence of the court's rulings; but small fractions of such large numbers point to the magnitude of the problems the court has created.

This state of affairs invites comparison with other moments in the history of the United States produced by positions taken by the Supreme Court—with Dred Scott v. Sandford, holding that Congress could not constitutionally prevent property, including slaves, from being brought into a federal territory; with Lochner v. New York, holding that a state could not constitutionally regulate the hours of work of employees of business; and with Carter v. Carter Coal Company, holding that Congress could not constitutionally regulate the labor relations of a corporation whose business was coal mining. These decisions all had substantial impact upon the nation. Dred Scott helped bring on the Civil War. Lochner had a negative effect on the conditions of employment for over a quarter of a century. Carter nearly brought the New Deal to an end. Each decision substituted the judgment of judges for that of legislators. Each decision is recognized today as unjustified by the constitution.

The court's effort to give more power to the states has led at the same time to the accretion of power by the court, almost as a promontory's division of the ocean leads to the promontory's accretions from the sea. Accretion is a passive process. It is also actively carried out by agents organic to the accretor. So, too, the court has accreted power from the legislature and the president as it has created various discretions that it may exercise in deciding when immunity exists and when legislation is proportionate and when a legislative record is satisfactory. Active accretion is the work of the institution, not on its own behalf but for the cause of state sovereignty that it has found transcendent.

No one can pretend to know what a perfect balance between the federal government and the fifty states would be, or to know what would be a perfect balance among the three branches of the federal government. Like the biological balances that maintain our lives, these great civic balances are not static, they respond to events, they take shape from experience. Professing ignorance of perfection, I write on the basis of my own experience as a citizen, a person immersed in law for fifty years, and a reader of history to point to what's wrong with the balances now struck. The middle ground has been moved, with unsettling consequences. Our national motto, engraved on our currency and coinage, is e pluribus unum—From many, one. It must be not only our motto but our guide.

 

 

Notes

the copyright case: infra, chapter 4; the age discrimination case: infra, chapter 5; the woman raped by members of the football team: infra, chapter 6.

"[T]he States entered the federal system with their sovereignty intact": Blatchford v. Native Village of Noatak, 501 U.S. 775, 779 (1991); quoted in Seminole Tribe of Florida v. Florida, 517 U.S. 44, 150 (1996) and in Alden v. Maine, 527 U.S. 706, 713 (1999).

"neither a national nor a federal Constitution": James Madison, Number 39, The Federalist.

These express powers were construed . . . under John Marshall: McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819).

The standards apply to the states, but . . . cannot be enforced: infra, chapters 4 and 5.

"There must be congruence and proportionality": City of Boerne v. Flores, 521 U.S. 507, 520 (1997).

"widespread and persisting deprivation of constitutional rights": id. at 526.

"anecdotal evidence": id. at 531 and Bd. of Trustees of the Univ. of Alabama v. Garrett, 121 S. Ct. 955, 966 (2001); see infra, chapter 5.

The Violence Against Women Act held unconstitutional: infra, chapter 6.

The recurrent battle: Robert H. Jackson, The Struggle for Judicial Supremacy (New York: Alfred A. Knopf, 1941), xii—xvii.

the institution has more influence on individuals: id., vii.

"ahistorical literalism": Alden v. Maine, 527 U.S. 706, 730 (1999).

a contradiction sits at the center: See infra, chapter 3.

Dred Scott v. Sandford: 60 U.S. 393 (19 How.) (1857); Lochner v. New York: 198 U.S. 45 (1905); Carter v. Carter Coal Company, 298 U.S. 238 (1936).