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Narrowing the Nation's Power

The Supreme Court Sides with the States

John T. Noonan Jr. (Author)

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Paperback, 212 pages
ISBN: 9780520240681
August 2002
$34.95, £28.00
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Narrowing the Nation's Power is the tale of how a cohesive majority of the Supreme Court has, in the last six years, cut back the power of Congress and enhanced the autonomy of the fifty states. The immunity from suit of the sovereign, Blackstone taught, is necessary to preserve the people's idea that the sovereign is "a superior being." Promoting the common law doctrine of sovereign immunity to constitutional status, the current Supreme Court has used it to shield the states from damages for age discrimination, disability discrimination, and the violation of patents, trademarks, copyrights, and fair labor standards. Not just the states themselves, but every state-sponsored entity--a state insurance scheme, a state university's research lab, the Idaho Potato Commission—has been insulated from paying damages in tort or contract. Sovereign immunity, as Noonan puts it, has metastasized. "It only hurts when you think about it," Noonan's Yalewoman remarks.

Crippled by the states' immunity, Congress has been further brought to heel by the Supreme Court's recent invention of two rules. The first rule: Congress must establish a documentary record that a national evil exists before Congress can legislate to protect life, liberty, or property under the Fourteenth Amendment. The second rule: The response of Congress to the evil must then be both "congruent" and "proportionate." The Supreme Court determines whether these standards are met, thereby making itself the master monitor of national legislation. Even legislation under the Commerce Clause has been found wanting, illustrated here by the story of Christy Brzonkala's attempt to redress multiple rapes at a state university by invoking the Violence Against Women Act. The nation's power has been remarkably narrowed.

Noonan is a passionate believer in the place of persons in the law. Rules, he claims, are a necessary framework, but they must not obscure law's task of giving justice to persons. His critique of Supreme Court doctrine is driven by this conviction.
Prologue: A Recurrent Struggle Is Resumed

1. The Battle of Boerne
2. Superior Beings
3. Votaries
4. The Sovereign Publisher and the Last of the Menu Girls
5. Perhaps Inconsequential Problems
6. Gang Rape at State U.
7. Sovereign Remedy

John T. Noonan, Jr. is Robbins Professor of Law Emeritus at the University of California, Berkeley, and the author of a dozen books, including Bribes (1987), Persons and Masks of the Law (2002), and The Lustre of Our Country : The American Experience of Religious Freedom (1998), which was a New York Times Notable Book. He is currently the holder of the Maguire Chair in Ethics at the Kluge Center of the Library of Congress and a senior judge of the United States Court of Appeals for the Ninth Circuit.
"John T. Noonan, Jr., brings impeccable scholarly and judicial credentials to his dramatic accusation that five members of the Supreme Court are systematically thwarting justice to Americans through a states rights policy that is essentially political and without basis in the Constitution. Judge Noonan's stature as a leading conservative thinker gives added prestige to this compact, lively and riveting account."—Norman Dorsen, Stokes Professor of Law, New York University; President of the ACLU, l976-l99l

"Written by a great scholar, independent thinker, lucid writer, and superb advocate, John T. Noonan, Jr.’s Narrowing the Nation’s Power provides a devastating attack on the logic of the Supreme Court’s revival of states’ rights, and makes complex legal doctrine enjoyable and readily understandable reading."—Jesse H. Choper, Earl Warren Professor of Public Law, University of California
"The conservative, resident theologian of the U.S. Circuit Court of Appeals . . . has delivered a roundhouse punch to the U.S. Supreme Court's promotion of states' rights at the expense of congressional power."

Pamela Maclean, San Francisco Daily Journal


U.S. Supreme Court Critique Packs a Wallop

Imprints interviewed John T. Noonan, Jr., Robbins Professor of Law Emeritus at the University of California, Berkeley, who currently holds the Maguire Chair in Ethics at the Kluge Center of the Library of Congress and is a senior judge of the United States Court of Appeals for the Ninth Circuit. He is also the author of a dozen books, including five with UC Press—The Antelope (1977), Bribes (1987), The Lustre of Our Country: The American Experience of Religious Freedom (1998), Persons and Masks of the Law (2002), and the recently released Narrowing the Nation's Power: The Supreme Court Sides with the States (2002).

In his new book, Judge Noonan explains how, in a series of decisions on states' rights cases over the past five years, the Supreme Court has swung the balance in favor of the fifty states and against the federal government and Congress. By ruling that states and state-related entities have "sovereign immunity" from federal laws, he argues, the Court has established a trend that threatens the constitutional balance among the branches of government. Narrowing the Nation's Power has been reviewed in the New York Times as well as other prestigious media and has sparked heated debate.

Q: Of the many constitutional issues that you consider as a federal judge, why did this one suggest treatment as a book?

A: In 1997, while I was researching religious freedom in the American tradition begun by James Madison, the Supreme Court in the Boerne decision held that the Religious Freedom Restoration Act was unconstitutional as applied to the states. The decision was a bombshell, overturning legislation passed nearly unanimously by Congress and, in essence, setting new criteria for Congress to meet. So I began to examine Supreme Court decisions to see if Boerne was a fluke or part of a trend, and it turned out that a clear pattern emerged. I also found inspiration in Robert Jackson's Struggle for Judicial Supremacy, an ironic commentary on Supreme Court decisions invalidating New Deal legislation.

Q: What was the most intriguing part of writing this book?

A: For me, to get into the facts of the particular cases—often obscured by the justices' focus on the big constitutional issues—was the most rewarding part. For example, in a case where the Court held as unconstitutional the Violence Against Women Act, I hadn't known that the suit involved a gang rape by members of a top-ten state university football team, and the only sanction for the alleged assault was temporary suspension of one of the players.

Q: How have your colleagues in the judiciary and elsewhere responded so far?

A: Individual judges who have read the book have been enthusiastic. Of course, the majority of the Supreme Court has made up its mind.

Q: Whom do you envision as this book's audience, and what impact do you hope it will have on them?

A: I hope that this book will be read not only by lawyers and law students and molders of public opinion, but also by all citizens interested in the balance of power in our democracy. I don't expect this situation to be remedied overnight, but informed public opinion is the ultimate remedy for judicial lawmaking that departs from the common understanding. The Senate Judiciary Committee is expected to hold hearings based on the book at the beginning of October.

Q: What is your next project?

A: I'm giving the 2003 Erasmus Lectures at the University of Notre Dame. The topic will be the development of moral doctrine—one of my favorite subjects, and more relevant than ever, so I'm excited about exploring it in depth.


The Battle of Boerne

The big break came with Boerne. I tell its story here against the background of the American devotion to religious liberty and the power granted Congress after the Civil War by the fourteenth amendment.


A unique contribution of the United States to civilization is the invention of religious liberty. No nation before our own had moved beyond tolerance. No nation had made freedom of religion a cherished value. No nation had designated "exercise," not mere opinion, as the value guaranteed. No nation had ever guaranteed in a written constitution that the nation would enact no law prohibiting the free exercise of religion.

The mother country, Great Britain, had for a century enjoyed a highly limited tolerance, coupled to the establishment of a church endowed with many prerogatives and privileges. Protestants who were not communicants in the Church of England, Catholics, Jews, members of all the other religions of the world, agnostics, and atheists were the subject of legal disabilities destructive of their civil rights and prohibitive of their participation in the government of the country. Some of the American colonies founded by Englishmen had moved toward greater tolerance, but none before the American Revolution had established equality and complete freedom of religion. All the colonists were part of an empire whose monarch was also the head of a church.

A would-be imitator of America, revolutionary France, adopted a statute guaranteeing freedom of religious opinion shortly before Congress adopted the Bill of Rights, in which the free exercise of religion was set out as our first freedom. The French National Assembly so little grasped the idea of religious liberty that, within months of enacting the statute, the assembly took on the task of reorganizing the Catholic Church in France along the lines of a civil organization. Within two years, freedom of religious opinion in France had disappeared in favor of a sustained, bloody persecution of Catholics and of organized attempts to exterminate Christianity.

The unique United States provision was, therefore, an experiment. It had to be an experiment. It had never been tried before. It was proclaimed as an experiment by its principal proponent, James Madison, who also drew the corollary that the umpire of the experiment would be experience. It has been the American experience that has determined the success of the experiment and its extent and contours.

The experiment at first was modest. The guarantee bound only the fledgling nation. It did not bind the thirteen states. A number of them, especially in New England and the South, had established churches. The states had no intention of giving them up. New Hampshire even had a provision that only Protestants could be elected to the state senate, and as this body elected that state's United States senators, New Hampshire indirectly violated article VI of the constitution, which stated: "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." So, even the national frame was impaired by religious prejudice.

The American experiment did not succeed by force of words alone. It was aided by the spaciousness of the West and by immigration that created a more diverse population than the previous predominantly Protestant one. As Tocqueville accurately noted, the newly arrived Catholics were also among the staunchest defenders of religious freedom.

In the end, the national ethos was established by the commitment made in the constitution. The states eventually disestablished their established churches. A foreign observer like Tocqueville, anxious to hold up an example to his own countrymen, proclaimed the freedom of religion to be the distinctive mark of the American republic. Most importantly, religion was exercised freely and vigorously in the religionists' campaign for the abolition of slaveryña campaign subversive of the settled order, begun by Congregational ministers, carried on by a clerical network appealing to Christian duty, and reaching its culmination in a war whose battle hymn proclaimed, "God is marching on."

In these developments, the Supreme Court of the United States was a latecomer, having nothing to say on the state religious establishments or the abolitionists' campaign, except to reaffirm the constitution's acceptance of slavery. Even the enactment of the fourteenth amendment in 1868 did not alter the role of the court as bystander. The New Hampshire constitution, obnoxious as it was to religious liberty, was not altered until 1877 when demographic changes in New Hampshire made it no longer supportable.

The Supreme Court's one sustained venture in interpreting religious freedom after the Civil War was a series of cases involving the Church of Jesus Christ of Latter Day Saints. The Supreme Court, obedient to Congress's determination of the national interest, upheld a federal statute making polygamy criminal in the territories. The court also upheld a territorial statute that used a tried and true inquisitorial technique, an oath requiring the oath-swearer to disavow membership or belief in a church promoting polygamy as a doctrine. Climactically in 1890, the court enforced a federal law confiscating the property of the Mormon Church. In all these cases the court was reminded of the first amendment and, instead of heeding it, upheld the Christianity that the court found to have motivated the anti-Mormon legislation.

If one looked up "freedom, religious," in casebooks on constitutional law prior to the 1930s, the standard references were to the Mormon cases that rejected appeal to the first amendment. In the 1930s the Jehovah's Witnesses began to seek protection under the constitution. Jehovah's Witnesses believed that it was idolatry to salute the flag. They also believed in vigorous proselytizing. These beliefs, and the actions accompanying them, led to various state prosecutions. When the Witnesses appealed to the Supreme Court, they were rebuffed.


The reaction to the peyote case, Employment Division v. Smith, united civil libertarians and many religious groups. A formidable and unusual coalition of the Left and the Right and the Center asked Congress to restore the old rule. Witnesses before Congress included the president of the American Civil Liberties Union, the chair of the People for the American Way Action Fund, and one of the Twelve Apostles of the Church of Jesus Christ of Latter Day Saints, as well as seasoned scholarly authorities on the first amendment, such as Robert Destro of the Catholic University of America, Edward M. Gaffney Jr., of Valparaiso Law School, and Douglas Laycock of the University of Texas.

Part of the testimony before Congress emphasized the shock of Smith, the sudden abandonment of established precedents, the extent of the damage likely to result, the insensitivity manifested to the requirements of conscience. The court's opinion in Smith had actually said that "we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the higher order." Incredibly, it was remarked, free exercise was being characterized as a luxury. Other civil liberties secured by the first amendment would yield only to a compelling governmental interest. Why was free exercise treated as inferior? In the opinion of the president of the American Civil Liberties Union, Smith was "the Dred Scott of first amendment law." A variety of contemporary examples of laws of general application having actual or potential impact on the free exercise of religion were presented. It was pointed out that if Smith were good law and taken at its face in its quotation of Frankfurter, the broad freedom of conscience from compulsion established by Barnette no longer stood.

Congress responded. The House passed the Religious Freedom Restoration Act (RFRA) unanimously. The Senate passed it ninety-seven to three. President Clinton signed it into law on November 16, 1993. With its enactment Congress employed the power that the amendment of the constitution had granted it after the Civil War.

RFRA began with findings made by Congress that "laws 'neutral' toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise" and that in Smith the Supreme Court had "virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion." Having set out its target, RFRA provided: "Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability except. . . ." The exception was where the burden imposed was "in furtherance of a compelling governmental interest" and "the least restrictive means" were used to further that interest.

RFRA was designed as legislation appropriate to enforce the provision of section 1 of the fourteenth amendment, guaranteeing that no person shall be arbitrarily deprived of liberty by a state. The fourteenth amendment, section 1 declares:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws. Section 5 of the fourteenth amendment states:

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Congress exercised the power conferred on it by section 5 "to enforce" the amendment's provisions "by appropriate legislation."

In 1940 in Cantwell, the Supreme Court by reading the first amendment into the fourteenth had taken upon itself the definition of the liberty protected by section 1 of the fourteenth. Section 1 was a very broad prohibition. If it was to be more than an empty exhortation, it had to be applied to particular acts of deprivation. It had to be given effect, it had to be enforced. The Supreme Court in 1940 had not only defined liberty but enforced the protection of it. Not before RFRA had Congress exercised as to religious liberty the power to enforce conferred upon it by section 5. When Congress finally used the power the constitution gave it and, doing so, explicitly rebuked the Supreme Court, would the court accept the rebuke?

The court's view, to be expressed in Boerne, was that the guarantees of life, liberty, and property in section 1 of the fourteenth amendment are "self-executing." But no law, no constitution is "self-executing." Lawyers, judges, marshals, process servers are all required to make any provision of law come to life. When the court described this portion of the constitution as "selfexecuting," the court unselfconsciously identified the court with the constitution. The guarantees were "self-executing" in the sense that the court would execute them, and the assumption was made that the court and the constitution were the same.

The Congress that drafted the fourteenth amendment after the Civil War had been deeply suspicious of the Supreme Court, still under a cloud for its notorious decision in Dred Scott. Dred Scott had denied congressional power to prevent slavery extending into the territories governed by federal law; had denied the very possibility of any descendant of a slave becoming a citizen of the United States; and, by its maladroit effort to end the controversy over slavery with a kind of final solution sustaining it forever, had helped bring on the Civil War. The drafters of the fourteenth amendment did not desire to destroy a federal structure or concentrate all power in Congress. Still less, however, did they have in mind a grant of power to the court. They gave power for the amendment's enforcement to Congress.

In 1879, eleven years after the states had ratified the amendment, the Supreme Court, now dominated by Northern Republicans, had occasion to examine its scope. Disavowing power in the judicial branch to enforce or to protect the rights guaranteed, the court in Ex parte Virginia declared:

It is the power of Congress which has been enlarged. . . . Whatever legislation is appropriate, that is, adapted to carry out the objects the amendments have in view, whatever tends to enforce submission to the prohibitions they contain, and to secure to all persons the enjoyment of perfect equality of civil rights and the equal protection of the laws against State denial or invasion, if not prohibited, is brought within the domain of congressional power.
The words of section 5 granting Congress power to enact "appropriate" laws were even broader than the words of article I, section 8 of the constitution that empowered Congress to legislate on commerce, crime, currency, and other federal matters. There the empowering language spoke of legislation that was "necessary and proper." These two terms arguably constituted a restraint, leaving to a court the determination of what federal laws met the conjoint criteria of being both needed and proper. Did Congress have power to create a national bank? Not a word in the constitution addressed the question. But when Congress had exercised its article I, section 8 power to create the Bank of the United States, and Maryland attempted to tax the bank, Chief Justice John Marshall had held that Congress had acted within its powers, creating a bank that was not only national but by implication free from taxation by the states. In McCulloch v. Maryland, Marshall wrote:

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 consist with the letter and spirit of the constitution, are constitutional.
So, "necessary and proper" had been expanded to "appropriate," and "appropriate" had been explained to include what was adapted to an end within the powers conferred on Congress. The drafters of the fourteenth amendment used the talismanic term of McCulloch—"appropriate"—to describe the amplitude of power that the amendment conferred on Congress.

Civil rights legislation in the 1960s had relied on this amplitude to override the Supreme Court. In 1959, the court had held that a test of literacy in English imposed by North Carolina did not violate the fourteenth amendment even when the test was used to disqualify African Americans as voters. Congress had responded with the Voting Rights Act of 1965, prohibiting such testing of anyone who had passed the sixth grade. The protection of the new law was sought by Puerto Ricans living in New York. The state of New York defended the English literacy requirement, a part of its constitution since 1916. The state contended that the Supreme Court had already determined the constitutionality of such a requirement in its 1959 decision for North Carolina, and that Congress was powerless to change the court's understanding of the constitution.

The Supreme Court cited and quoted both the 1879 case of Ex parte Commonwealth of Virginia and Marshall's opinion in McCulloch v. Maryland and, in terms of both cases, explained the power given Congress to enforce the fourteenth amendment. The evidence that Congress was remedying purposeful discrimination against Puerto Ricans was slight. There were not many immigrants from Puerto Rico to New York in 1916 when the literacy test had been enacted. The court put in a footnote the evidence it said Congress might have had. The evidence consisted in quotation of a single statement made at the New York State Constitutional Convention of 1916 that there was danger to "our race" if literacy in English was not required for voters. The Supreme Court also noted, without further elaboration, "the cultural milieu" from 1915 to 1921 as "evidence" of which Congress was aware. The Voting Rights Act of 1965, finding a freedom whose existence the Supreme Court had denied seven years earlier, was held to be constitutional. The Voting Rights Act precedent, the ample implications of section 5's "appropriate," and the equivalence of section 5 power to the article I power so broadly construed by John Marshall, all pointed to the full legitimacy of RFRA. Those who relied on such pledges by the Supreme Court did not consider sufficiently that the court could change its mind.


Boerne, a city in Texas parlance, was a village of a little over four thousand inhabitants, located twenty-five miles from San Antonio. It possessed a single Catholic church, St. Peter the Apostle. The parish was formed in the 1860s when a determined French missionary had built for German immigrants a small church on a hill on the outskirts of the settlement. This structure was preserved when a larger edifice was begun in 1923, modeled after Mission Concepcion in San Antonio. In 1991, a new pastor, Father Tony Cummings, was assigned to St. Peter's by Patrick Flores, archbishop of San Antonio. Father Cummings's assignment was to enlarge the church of the 1920s to accommodate a growing congregation. He counted 780 families enrolled in the parish. The church seated 250 persons. Even when he arranged for three masses on Sundays, the people were, in his words, squeezed in "like sardines." There were often thirty or more standing. The need for space was undeniable. The question was how to obtain it.

In 1991 Father Cummings took advice and began to plan a new church, leaving intact little more than the twin bell towers that marked the main entrance of the 1923 edifice. In the same year, not coincidentally, the city council of Boerne adopted an ordinance designed to preserve buildings in what it designated as "an historic district." St. Peter's, or part of it, fell within the district. Anna Marie Davison, a member of the parish and a leading preservationist, pressed the Texas Historical Commission to give the church landmark status and prevent its alteration. She did not succeed with the state commission, but she roused the town. A battle that would divide the parish and the town began.

Few issues, it may be observed, are more likely to rouse local passions than disputes over zoning. The natural sense of the owners of the property, that they should be allowed to do what they want with what they own, is put in conflict with the community's sense that property rights are not absolute and that there is a communal interest in congruence, history, or aesthetics that may need to be taken into account. The conflict is intensified when the zoning is focused on preservation of a building that the owners no longer find useful. Why should they who built it be forced to keep it at their expense? A fortiori, the question is pressed when the building is a church put up as a place to worship and no longer able to accommodate the worshippers. In Europe, governments take on the cost of the upkeep of historic shrines. In America, local governments, often enough, would like the churches to shoulder the burden. Is forced preservation of an unusable structure a type of prohibition of religion?

Feelings ran high. The majority of the congregation backed Cummings. He got over $600,000 in pledges to do the remodeling when he would be permitted to do it. Still, a minority, mostly old-time members of the parish, stirred by Anna Marie Davison, steadfastly opposed the plans for change. The new design was denounced as nondescript, a destruction of beauty, a horror. The archbishop and then the pope were asked to intervene to stop the desecration. The rest of the town joined the battle. It was questioned whether the zone of the Historic District embraced more than the bell towers, which the parish promised to preserve. Finally, the Historic Landmarks Commission of Boerne, the local body charged with enforcing the zoning of the Historic District, denied the church a permit to go ahead with demolition. In the spring of 1994, after a tense public hearing, the city council, four to one, sustained the denial of the license. Cummings, describing the outcome as "morally and grossly unjust," moved Sunday masses to the Rainbow Senior Citizens' Center. Archbishop Flores entered the scene, seeking relief under RFRA in the federal district court in Midland, Texas. No compelling governmental interest, he maintained, justified Boerne's burden imposed upon the believers.

In February 1995, Boerne raised as a defense to Flores's suit a challenge to the constitutionality of RFRA. The solicitor general of the United States entered the case to defend the legislation. In March 1995, District Judge Lucius Desha Bunton III held RFRA unconstitutional. He quoted John Marshall: "It is emphatically the province and duty of the judicial department to say what the law is." Departing from the Supreme Court's position in the peyote case, Congress had violated the constitution.

Appeal was taken to the court of appeals for the Fifth Circuit sitting in New Orleans. The panel to whom the case was fortuitously assigned was composed of Patrick E. Higginbotham, Emilio Garza, and Fortunado Benavides. The panel's composition was chiefly of importance in reflecting a broad range of backgrounds and experience. On January 23, 1996, in an opinion by Higginbotham, the panel unanimously reversed Judge Bunton.

Applying Supreme Court precedent, the court of appeals noted three questions to be answered: First, might RFRA be regarded as an enactment to enforce the protection of religious freedom, guaranteed from infringement by the state? Citing the testimony of three witnesses before the House of Representatives, the court found it easy to answer the question affirmatively. Second, was RFRA "plainly adapted" to the purpose of enforcement? The court noted that Congress had no power to add to the fourteenth amendment but did have power to act remedially "where a violation lurks." As the United States now argued, RFRA supplied a remedy to facially neutral laws actually hostile to religious exercise; acted prophylactically in preventing such laws; and aided religious minorities, such as the Amish, Hmong, Jewish, and Mormon, that had suffered because their religious practices had not been respected by the majority. The third question was whether RFRA was consistent with the letter and spirit of the constitution. Unquestionably, it was. The city argued that Congress had usurped the power of the Supreme Court. The answer was given by the Voting Rights case. As it had with voting rights, Congress could go beyond the bare constitutional minimum. The Supreme Court in the peyote case had not held that a law exempting religious exercise from statutes of general applicability was unconstitutional; all the court had decided was that exemption was not required. Now Congress had lawfully gone beyond this minimum.

The Supreme Court granted certiorari in Boerne. The same lawyers who had faced each other in New Orleans argued in WashingtonñDouglas Laycock, a leading authority on the constitution and religious liberty, appearing for the archbishop, and Marci Hamilton, a young professor at Cardozo Law School in New York, representing Boerne. Walter Dellinger, solicitor general of the United States, argued on the archbishop's side, reflecting RFRA's popularity with the Clinton administration and the judgment of the executive branch that RFRA's restrictions would not seriously restrict the federal government. Argued in February 1997, the case was decided in June at the end of the court's term.

The court's starting point was that the power of Congress under section 5 of the fourteenth amendment was remedial. Congress could act to cure an evil. It could not act to enlarge the rights the amendment guaranteed. Admittedly, the line between a remedy and the creation of an enlarged right was "not easy to discern." Admittedly, Congress "must have wide latitude in determining where it [the line] lies." But, the court reassured itself, "the distinction exists and must be observed."

How was the distinction to be observed? Here the court unveiled a new test for legislation: "There must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." This formula was unprecedented. Proportionality in legislation! Who would measure the proportion? Implicitly, the answer was "the court." What measure would the court use? Implicitly, the answer was "whatever we find handy." A few years earlier, scorn had been heaped by members of the court themselves on the notion of the court measuring proportionality in criminal sentences. How would the court know, two justices had asked, what proportion should be observed? A determination of proportionality between a crime and its punishment, according to these members of the court, invited the "imposition of subjective judgment." If objective measures did not aid in an area where common sense had at least some competence, what measure could the court use when determining the proportion between violations of civil rights and laws meant to cure or prevent such violations? Was there anything but subjective feeling for the justices to use as a measuring stick?

Introduction of the test introduced a judicial concern with the record upon which Congress acted. When the question had been, Is the law remedial?, it had been enough for a court to see that Congress had been aware of evils in need of elimination or prevention. When congruence and proportionality were the measures, there appeared to be a need for a court to look more closely at what evils the legislation was said to be eliminating or preventing.

The Supreme Court looked more closely at the record made in the legislative hearings on RFRA. The court observed that there had been "anecdotal evidence of autopsies performed on Jewish individuals and Hmong immigrants in violation of their religious beliefs." The court observed that there had been testimony to the "adverse effects" of zoning and preservation laws on churches and synagogues. The court discounted this evidence because the examples did not evince a governmental purpose to discriminate against religion. The burdens imposed were "incidental." No religious persecution by law had been shown to have occurred "in the past 40 years."

Measured by this evidence, paltry and unconvincing as the evidence in the court's eyes was, RFRA was overkill. RFRA's "sweeping coverage" assured "its intrusion at every level of government." RFRA applied "to every agency and official" of federal, state, and local government. It had no termination date. Its protections could be invoked by any individual who alleged that an action of the government burdened his or her religion. It was disproportionate to the evils established by the record.

In Cantwell v. Connecticut in 1940 the Supreme Court on the basis of the record in a single case had created a new rule of law binding all fifty states. Congress, acting on the basis of legislative hearings, testimony by experts, and accounts of oppression by individuals, was now declared by the court not to have enough evidence of discrimination against religion to fashion a law setting a standard of proof of such discrimination.

The court did not pause to note that the sweep of RFRA paralleled the sweep of the first amendment. It, too, had been interpreted by the court itself to bind all units of government. It, too, had no termination date. It, too, could be invoked by an individual. The court's real quarrel with RFRA was that RFRA made incidental burdens on free exercise provable as substantial burdens that prohibited free exercise in violation of the first amendment. The court's position was that only purposeful persecution constituted prohibition. For the court the case was as simple as that. The court had already spoken. Congress could not enlarge the liberty protected.

An alternative approach, also fatal to RFRA, was attractive to one member of the majority. Any exemption for religion from a general law was, in this member's view, an establishment of religion. Establishment of a religion was forbidden by the same amendment that protected free exercise. Protection of free exercise, therefore, could not extend to exemptions.

The difficulty of this position was that, if applied, it would clash with a variety of particular exemptions created by Congress, some of them already accepted by the Supreme Court. Most notable were the exemptions for clergy, persons studying for the ministry, and conscientious objectors to all warñexemptions made by the draft laws in both World War I and World War II. After the nineteenth amendment prohibited the sale of liquor "for beverage purposes," Congress in the Volstead Act had permitted the sale of liquor for the purpose of being consumed in religious services, such as those held by Catholics, Episcopalians, Jews, and Lutherans. If the wine was consumed, it was used as a beverage; but the statute was evidently allowed to amend the constitution. After the Supreme Court had held that the Old Order Amish were not entitled to an exemption from Social Security by reason of their religious belief, Congress gave them one. After the Supreme Court had held that the free exercise of religion did not entitle an Orthodox Jew to wear a yarmulke when he was on duty as an officer of the Air Force, Congress had created the exemption. After the Supreme Court had refused to stop the logging road through Indian burial grounds, Congress stopped it. If all these exemptions were bad as establishments of religion, a more wholesale revision of the laws would have to be undertaken than the court contemplated.

Unless exemption was establishment, the issue of all the exemptions from federal law was not presented by Boerne. It was remarkable then that in computing the disproportionate sweep of RFRA, the court should have added RFRA's impact on all federal laws and agencies to its calculation. That Congress had the power to restrict federal law from prohibiting the exercise of religion had never been doubted by the court as a whole.

All the exemptions Congress had made, now unmentioned by the court, stood as mute testimony to the long standing belief of the legislative and executive branches as to the respect to be accorded free exercise. The exceptions also stood as testimony to the workability of exceptions. If great federal bureaucracies could live with them, couldn't city hall? But this question was not addressed. No doubt the exceptions were also evidence that large minorities (as in the case of sacramental wine) or small but strategically knowledgeable minorities (as in the case of Social Security or the case of the yarmulke) could secure exceptions without judicial help. So why should the judiciary bother itself? This way of thinking had been explicit in the court's opinion in Smith. The answer, as obvious as the question, was that the most odious kind of anomaly was not an exception to the law but judicial indifference to a right the other branches of government believed that the constitution secured.

The court's way of handling this anomaly was not to address it but to announce the new tests—variously phrased as "congruence and proportionality" or as "congruence or proportionality"—and the consequent scrutiny by the court of the evidence Congress had considered. Unnecessary in reaching the result, the new tests carried what in modern jargon was the metamessage of Boerne addressed to Congress: Six or even five of us count for more than five hundred of you because the constitution has provided us with a province and a function in regard to federal legislation, a duty to give definitive meaning to the foundational document. We are not to be governed by the judgments made by the two branches of government that are our co-equals but that are not equal to us in the discharge of this duty. Performing it, we are not only the highest court in the land but the highest authority. Our words constitute the constitution that is now in force.

Conveying that message, the court created, for possible future use against Congress, two new and powerful weapons to be deployed in constitutional litigation: that the congressional record could be closely inspected for convincing evidence of the evil legislated against, and that the legislation responding to the evil must be congruent or proportionate or both. The test of "congruence and proportionality" was unchallenged by any member of the court. Two of the three dissenters explicitly agreed with it. The absence of challenge to the creation of new criteria vitally affecting the balance between the courts and Congress was an unusual characteristic of the case.

The battle in Boerne was over. After the court's decision, villagers asked, "Who's in charge—Congress or the Supreme Court?" and grumbled audibly about being made pawns in a test case. Both sides professed to be ready to fight on. But a compromise was soon reached. A new remodeling plan kept 80 percent of the 1923 church and won a national architectural award. Father Cummings got seven hundred more seats. The real battle begun by Boerne was to continue. Were the new requirements for legislation ad hoc defenses set up by the Supreme Court to rebuff RFRA or would they be norms governing the future? Boerne raised this question without resolving it. Resolution of this question was to interact with the immunity the court attributed to sovereigns.


Notes A unique contribution: See John T. Noonan Jr., The Lustre of Our Country: The American Experience of Religious Freedom (Berkeley: University of California Press, 1998), 75-91 (hereafter Lustre).

The mother country: id. at 57-58.

A would-be imitator: id. at 267-275.

the umpire of the experiment: id. at 91.

The states had no intention: id. at 96.

New Hampshire even had a provision: New Hampshire Constitution, pt. 2 (1784), in James Fairbanks Colby, comp., Manual of the Constitution of the State of New Hampshire (Manchester: J. B. Clarke, 1912), 110-113; Lustre at 99.

A foreign observer like Tocqueville: Lustre at 95.

Most important, religion was exercised freely: id. at 119-137.

The Supreme Court's one sustained venture: id., 252-254; Supreme Court upheld: Reynolds v. United States, 98 U.S. 145 (1878); federal statute: An Act to punish and prevent the Practice of Polygamy in the Territories of the United States and other Places, and disapproving and annulling certain Acts of the Legislative Assembly of the Territory of Utah, 12 Stat. 501-502 (July 1, 1862); court also upheld a territorial statute: Murphy v. Ramsey, 114 U.S. 15 (1885); court enforced a federal law confiscating the property: The Late Corporation of the Church of Jesus Christ of Latter Day Saints v. United States, 140 U.S. 665 (1891).

various state prosecutions: See e.g., Nicholls v. Mayor and Sch. Comm. of Lynn, 297 Mass. 65, 7 N.E. 577 (1937) (expulsion from school); When the Witnesses appealed to the Supreme Court: Lustre at 241-242.

The Supreme Court decided that religious liberty: Cantwell v. Connecticut, 310 U.S. 296 (1940).

The makers of the fourteenth amendment did have a sense that the religious freedom of the newly emancipated slaves: Kurt T. Lash, "The Second Adoption of the Free Exercise Clause: Religious Exemptions under the Fourteenth Amendment." 88 Nw. U.L.R. 1106, 1134-1135 (1994).

Three overlapping reasons: Freedom of speech and freedom of the press read into fourteenth amendment: Gitlow v. New York, 286 U.S. 652, 666 (1925); withdrawn from the business of invalidating governmental regulation: West Coast Hotel v. Parrish, 300 U.S. 379 (1937); "in the delusion of racial or religious conceit": Cantwell, 310 U.S. 296 at 310.

Writing for the court, Felix Frankfurter: Minersville School District v. Gobitis, 310 U.S. 586 (1940); "an interest inferior to none": id. at 595.

"If there is any fixed star": West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642 (1943).

"Providing public schools ranks at the very apex": Wisconsin v. Yoder, 406 U.S. 205, 213 (1972); "[B]elief and action cannot be neatly confined": id. at 220; "[A] regulation neutral on its face": id. at 220.

The national government was always found to have had a national interest: See e.g., Bowen v. Roy, 476 U.S. 693 (1986); Goldman v. Weinberger, 475 U.S. 503 (1986); United States v. Lee, 455 U.S. 252 (1983).

The governmental interest . . . had to be "compelling": See Employment Div. v. Smith, 494 U.S. 872, 894-895 (1990) (concurrence, collecting cases)

"Compelling interest" . . . could be dispensed with: Lyng v. Northwest Indian Cemetery Protective Assn., 485 U.S. 439, 447 (1998); "the Indians' ability to practice": id. at 451.

It would not have been a stretch to hold that Oregon had a compelling interest: Employment Div., 494 U.S. 872 at 905 (concurrence).

It did so without even asking: Michael W. McConnell, "Free Exercise Revisionism and the Smith Decision," 57 U. Chi. L. Rev. 1109, 1113 (1990).

To achieve this result, the court had to put a new skin: Employment Div. v. Smith, 494 U.S. 872 (1990) (opinion by Scalia, J., joined by Rehnquist, C. J., and by White, Stevens, and Kennedy, JJ.); Cantwell and Yoder explained: id. at 881; a Mormon case: Reynolds v. United States, 98 U.S. 145 (1879), twice cited in Employment Div. at 879 and 885; "Instead the opinion of Justice Frankfurter": id. at 879.

"sweeping result," . . . "disregard our consistent application of free exercise doctrine": id. at 892 (O'Connor, J., joined by Brennan, Marshall, and Blackmun, JJ.); The misreading of Cantwell and of Yoder: id. at 896.

A formidable and unusual coalition: See Gustav Niebuhr, Disparate Groups United Behind Civil Rights Bill on Religious Freedom, Washington Post, October 16, 1993 at 7, available at 1994 WL 2093750 (noting "no fewer than 48 religious and civil liberties groups" from People for the American Way and the ACLU to the National Association of Evangelicals, the U.S. Conference of Catholic Bishops, and major Jewish organizations).

Incredibly . . . free exercise was being characterized as a luxury: Testimony of John H. Buchanan, Jr., chairman, People for the American Way Action Fund, Religious Freedom Restoration Act of 1990: Hearings on H.R. 5377 before the House Committee on the Judiciary, 102d Cong. at 53 (1990); "The Dred Scott of first amendment law": Testimony of Nadine Strossen, president of the American Civil Liberties Union, Religious Freedom Act of 1992: Hearings on S. 2969 before the Senate Judiciary Committee, 102d Cong. at 171 (1992). See also Statement of Elder Dallin H. Oaks in the same hearings, p. 33 (1992); Testimony of Robert P. Dugan Jr., Religious Freedom Restoration Act of 1991: Hearings on H.R. 2797 before the House Committee on the Judiciary, 102d Cong. at 13 (1992).

RFRA: 42 U.S.C. §2000bb; House and Senate votes on RFRA: 139 Cong. Rec. 26416 (103rd Cong., 1st sess., October 27, 1993); 139 Cong. Rec. 27241 (103rd Cong., 1st sess., November 3, 1993).

"self-executing": City of Boerne v. Flores, 521 U.S. 507, 522 (1997).

The Congress that drafted the fourteenth amendment: Joseph T. Sneed III, Footprints on the Rocks of the Mountain: An Account of the Enactment of the Fourteenth Amendment (West Coast Print Center, 1997), 330-331, 370; Stephen A. Engel, "The McCulloch Theory of the Fourteenth Amendment: City of Boerne v. Flores and the Original Understanding of Section 5," 109 Yale L.J. 115, 131-134 (1997); Cong. Globe, 29th Cong., 1st sess. (1866): 43, 2765.

Dred Scott: Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).

"It is the power of Congress which has been enlarged": Ex parte Virginia, 100 U.S. 339, 345-346 (1879).

"Let the end be legitimate": McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819).

the court had held that a test of literacy . . . did not violate the fourteenth amendment: Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45 (1959); Congress had responded: see Voting Rights Act of 1965 41(a), 42 U.S.C. §1971(a)(2)(C) (banning literacy tests).

The evidence that Congress was remedying: Katzenbach v. Morgan, 384 U.S. 641, 654 n.14 (1966).

The history of St. Peter's: "St. Peter the Apostle Catholic Church," http//, accessed July 18, 2001.

The early stages of the battle of Boerne: San Antonio Express News, August 8, 1993; "like sardines": id.; over $600,000 in pledges: id.; historical value of church: James Steely to Anna Marie Davison, June 23, 1992; The archbishop and then the pope: Thomas P. Sullivan to Archbishop Flores, June 1993; petition to the pope: reprinted, Boerne Star, October 13, 1993; question as to extent of historic zone: San Antonio Express, January 30, 1996; actions of landmarks commission and city council: Boerne Star, April 20, 1994; "morally and grossly unjust": Hill County Recorder, April 5, 1995; move to Rainbow Senior Center: id.

The case in the district court: Flores v. City of Boerne, 877 F. Supp. 355 (M.D. Texas, 1995); the case in the Fifth Circuit: Flores v. City of Boerne, 73 F.3d 1352 (5th Cir. 1996), cert. granted, 519 U.S. 926 (1996). Almost in parallel with Boerne a case arose in the Ninth Circuit in which RFRA was invoked. In Eugene, Oregon, a young man was arrested on strong suspicion that he had murdered three teenagers. As he awaited trial, he asked that a priest hear his confession. The confession was made by means of an intercom and routinely recorded as a matter of prison policy. The district attorney subpoenaed the recording to introduce at the man's trial. No Oregon law forbade such evidence, and no Oregon judge would prevent its introduction. Invoking RFRA, the priest and his archbishop asked the federal court to protect the secrecy of the religious rite that had been engaged in. The district attorney argued that RFRA was unconstitutional. Like the Fifth Circuit, the Ninth Circuit held RFRA to be in accord with precedent. It ruled that RFRA forbade the secular intrusion into a sacrament—a new, startling, and unlawful aggression against free exercise. Mockaitis v. Harcleroad, 104 F.3d 1522 (9th Cir. 1997) (per Noonan, J., joined by Thompson and Kleinfeld, JJ.).

"not easy to discern": City of Boerne, 521 U.S. 507 at 519; "must have wide latitude": id. at 520; "the distinction exists": id.

"There must be a congruence and proportionality": id. (opinion by Kennedy, J. with Rehnquist, C. J., and Stevens, Scalia, Thomas, and Ginsburg, JJ., concurring). For a searching critique of Boerne, see Evan H. Caminker, "'Appropriate' Means-Ends constraints on Section 5 Powers," 53 Stan. L. Rev. 1127-1199 (2001).

"imposition of subjective judgment": Hamelin v. Michigan, 501 U.S. 957, 985 (1991) (Scalia, J., joined by Rehnquist, C. J.).

"anecdotal evidence": City of Boerne, 521 U.S. 507 at 531; "adverse effects": id.; "in the past 40 years": id. at 530; "sweeping coverage": id. at 532.

exemption as establishment: id. at 536-537 (Stevens, J., concurring)

exemptions already accepted by the court: See Selective Draft Act §4, 40 Stat. 76, 79 (May 18, 1917); Selective Training and Service Act of 1940 §5(g), 54 Stat. 885, 889 (September 16, 1940) (draft exemptions); Volstead Act §3, 41 Stat. 305, 308-309 (October 28, 1919); 26 U.S.C. §3127 (Social Security exemption); 10 U.S.C. §744 (exception for religious apparel); 102 Stat. 1826 (1988) (suspension of funds for logging road). See generally, Lustre, at 222-226.

Two . . . dissenters explicitly agreed: City of Boerne, 521 U.S. 507 at 544 (O'Connor, J.) and 563 (Breyer, J.).

"Who's in charge?": San Antonio Express, June 27, 1997; compromise: San Antonio Express, September 26, 2000.

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.


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).

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