Government Power

Dear Gene,

As a policy matter, I suppose I'm ambivalent about the Supreme Court's recent decisions striking down parts of the Brady Bill, the Religious Freedom Restoration Act, and the Gun Free Schools Act. These are, by and large, symbolic laws that allow Congress to reap the political benefits of declaring its opposition to evils that everyone opposes (guns in schools, religious discrimination), while passing off to the states the costs of administration and enforcement. And in all three cases, Congress can achieve its goals by drafting laws that are more narrowly focused.
On the other hand, if the Supreme Court is seriously committed to enforcing constitutional limits on Congress' power for the first time since the New Deal, the states might ultimately suffer. By suggesting that Congress can't co-opt the states to carry out federal programs, the court has called into question the Welfare Reform Act of 1996, which directs the states to administer federal block grants. Doesn't this discourage the kind of "cooperative federalism" that has been a centerpiece of the Republicans' (and now the New Democrats') domestic agenda since the 1980s? The range of other federal programs that now seem constitutionally vulnerable--(see "Dual Sovereigns," the New Republic, July 28, 1997) also gives me pause. Isn't Justice Breyer correct to fear that Congress might respond to the court's vision of "dual sovereignty" by cutting states out of the loop entirely?
But these are political, not constitutional concerns. As a constitutional matter, I'm frankly bewildered by the Brady decision in particular. Ever since the Warren era, conservative judges and law professors have been reminding us tirelessly about the virtues of judicial restraint and the evils of judicial activism. When conservatives talk about judicial restraint, sometimes they mean that judges should defer to Congress and the president on important questions of public policy, and sometimes they mean that judges should be faithful to the text and original understanding of the Constitution. But whatever definition of restraint you prefer (and the two definitions often point in opposite directions), both seem impossible to reconcile with the court's methodology in the Brady case.
Writing for the court, Justice Scalia held that the constitutional principle of "dual sovereignty" prevents Congress from ordering state officials to execute or administer federal laws. Isn't Justice Scalia's approach inconsistent with his opinion in Harmelin vs. Michigan, in which he set out a clear and principled methodology for interpreting the scope of the Eighth Amendment's prohibition on cruel and unusual punishment? In Harmelin, Justice Scalia said when there was no constitutional text on point, and when the original understanding of the Constitution was ambiguous, the courts should defer to the political branches. But in the Brady case, Justice Scalia concedes that there is no text on point, and that the original understanding of congressional powers is ambiguous. (He reviews the debates between Madison and Hamilton and concludes that Madison was right and Hamilton was eccentric.) But instead of deferring to Congress in the face of historical ambiguity, Justice Scalia decides unexpectedly that ambiguity empowers the court to enact a highly contestable theory about what federalism should mean.
How can Justice Scalia's methodology in cases involving limitations on Congress' power be reconciled with his methodology in cases involving the Bill of Rights? If Justice Scalia thinks that a different methodology is appropriate in the congressional power cases, he doesn't tell us what it is; and I'm having a hard time imagining any methodology could be reconciled with the commitment to textualism and original understanding that Justice Scalia has so eloquently espoused. One possibility might be to say that Congress' powers should be understood no more broadly than they would have been understood by the people who ratified the Constitution in 1791. But this approach, which Justice Thomas flirted with in the Gun Free Schools Act case in 1995, is so radical that not even Justice Scalia joined him. If, for example, Congress' power to regulate interstate commerce were rolled back to its late-18^th-century boundaries, most of what the post-New Deal federal government does would be unconstitutional. (Under a strict application of the Madisonian vision, Congress would even lack the power to charter a national bank.) It was for this reason that the Supreme Court abandoned the manufacture/commerce distinction in 1937, and for this reason that even Justice Thomas concedes that it may be "too late in the day" to resurrect an 18^th-century vision of the commerce power.
Do you agree with Justice Thomas that it's "too late in the day" to resurrect the vision of enumerated powers that prevailed in 1791? And if you do, what historical understanding of enumerated powers do you think the court means to resurrect in its place? The understanding of 1868, when the 14^th Amendment was ratified? Of 1935, before the switch in time? Both of these visions would bring the current federal government to a grinding halt. Do you think this would be a good or bad thing? And if you think the court meant to embrace a post-New Deal vision of enumerated powers, what, precisely, does that vision look like, and how would you reconcile it with a jurisprudence of original understanding? I'm genuinely at a loss here, and would appreciate guidance. Please advise.

Best regards,
Jeff Rosen

First, I think a little more background will be helpful:
Among the framers' principal checks on federal power was that Congress would be able to legislate only with respect to matters enumerated in the Constitution. In recent times, however, due particularly to the Supreme Court's broad reading of Congress' "Commerce Clause" power, this limitation has become a laughingstock. Thus, the following from the transcript of oral argument in the Supreme Court's 1995 Lopez case: "Question: 'Can you tell me, ... has there been anything in our recent history in the last 20 years where it appears that Congress made a considered judgment that [it lacked the constitutional power] to reach a particular subject?' (Laughter)."
In Lopez and a handful of other recent decisions, the court has reaffirmed the existence of limits on congressional power. Lopez involved a law prohibiting "any individual knowingly to possess a firearm ... [in] a school zone." The court ruled that possessing guns near schools did not "substantially affect" "Commerce ... among the several States," and that accordingly the provision was outside the commerce power and unconstitutional. In this year's case involving the Religious Freedom Restoration Act, the court held that Congress could not construct whole new grounds for its legislative authority by interpreting the Constitution in a manner that only three years before the Supreme Court had rejected. The result in the Brady Bill case is amply described in your opening.
You raise "policy" and "constitutional" concerns with these decisions that I will address in a moment, but it is important to be clear that even your constitutional concerns are methodological, not substantive; you nowhere question the constitutional result in these cases, and from this I infer that you boisterously applaud the court's intent to take seriously constitutional limits on federal power. You're right: The court needed to draw a line on the commerce power somewhere--Lopez was a good point. RFRA was a brazen and unprecedented attempt by Congress to make its own (expansive) interpretations of the Bill of Rights paramount, and to open whole new sources of legislative authority; not a single justice approved the constitutionality of its action. As for the Brady case, surely state sovereignty means that state officers will not be made flunkies for implementing federal programs.
All of these decisions were cautious, causing little if any disturbance in prior case law or current federal programs, yet signaling new resolve to enforce constitutional limits. Had the court ruled otherwise, the game would have been up; holding as it did, the court maintained a stable foundation from which it may approach more difficult questions of federal power.
You express the "policy" concern that "cooperative federalism" might be threatened by the holding in the Brady case that the federal government can't dragoon state officers. Not to worry: Federal and state authorities can still "cooperate" the old-fashioned way--mutual agreement. You raise the possibility that Congress will respond to the Brady decision by "cutting the states out of the loop entirely"; this is your devilish way of encouraging the Supreme Court to impose limits under the Commerce Clause, so that this retaliatory response will be foreclosed and the nation will look even more to the states for important functions.
You "admire" Justice Scalia and "agree with his methodology," as you have written elsewhere, but you fear that in the majority opinion in the Brady case he may have strayed off the reservation. Not so: The opinion describes the steps leading to the court's holding not as "ambiguous," but as "clear," "plain," "incontestable," and "far outweigh[ing]" any contrary indications. The Harmelin opinion does NOT limit constitutional restrictions to matters where the text "speak[s] to th[e] precise question" before the court, and no justice would so limit the court's role. In cases concerning the allocation of powers particularly, the court frequently resorts to history and constitutional structure to discern the spheres of government power. That said, even if the burden had shifted between Harmelin and the Brady case, I could see the argument for doing so: federal statutes are construed with a presumption against infringements of state sovereignty--why not the Constitution?
Your final queries amount to one broad question that is key and difficult: If the Constitution's limits on congressional power are to be enforced, how and where will the lines be drawn? For starters, I believe it remains incumbent on the Supreme Court to ensure that Congress not exceed its commerce power. Do you, or do you regard the inquiry as too difficult and propose, therefore, that responsibility lies with Congress (and the president) alone? If so, how is Congress any better at drawing the line than the court, and would you apply the same rule to all congressional powers, so that, for instance, the court should never have taken up the question in the RFRA case? To address your specific queries: I am not sure what is meant by a "vision" of enumerated powers, and the notion that the "vision" might change with time--Congress' powers are set forth for all to read, in the same words as when written. Commerce, though, is fluid, and what affects interstate commerce today might not have 200 years ago. "Grinding to a halt" I always oppose, but the federal government reconsidering its minute regulation of American life? That would be welcome.
I look forward to your reply.

Dear Gene,

Thank you for your nice response. To focus our dialogue, which I fear may be a little lawyerly even for the most robust SLATE readers, let me press you on the disagreement that interests me most. I'm still not convinced that the court's effort to take seriously constitutional limits on Congress' power can be reconciled with the court's effort to take seriously a jurisprudence of original understanding.
Let's look at the Lopez and Brady cases more closely. I agree that Lopez was correctly decided; but I think the court's reasoning exposes the Achilles' heel of the originalist methodology. Chief Justice Rehnquist, writing for the majority, acknowledged that the text of the Commerce Clause, which authorizes Congress "[t]o regulate Commerce ... among the several States," was originally understood to reserve to the states, rather than Congress, the power to regulate certain categories of economic activities that didn't directly affect interstate commerce--such as "production," "manufacturing," and "mining." As the national economy became increasingly complex in the 1930s, the court's effort to enforce the distinction between direct and indirect effects on commerce invalidated the New Deal and precipitated the court packing crisis. In 1937, after the switch in time, the court adopted a more expansive vision of the limits of Congress' power, holding that Congress could regulate all activities that "substantially affect interstate commerce." Applying this post-New Deal test, Rehnquist struck down the Gun Free Schools Act of 1991, on the grounds that guns in school don't "substantial[ly] affect" interstate commerce.
Rehnquist's conclusion seems right for those who believe, as you and I do, that there should be something left to the idea that Congress has enumerated (rather than unlimited) powers. Unfortunately, as Justice Thomas pointed out in his concurring opinion, Rehnquist's vision of the scope of Congress' powers, with its 1937 vintage, is impossible to reconcile with the original understanding of the Commerce Clause, which took seriously the distinction between "manufacturing" and "commerce." A true devotee of original understanding, Thomas argued at length, should turn back the clock to the good old days before the court packing crisis.
But then Thomas confronted a problem of his own. Resurrecting the pre-New Deal understanding of the Commerce Clause would invalidate virtually the entire post-New Deal regulatory state. Most of the federal buildings in Washington would have to shut down or be auctioned off to the states. Thomas is coy on the question of whether or not he is willing to bring the federal government to a grinding halt. "Although I might be willing to return to the original understanding," he says in a cryptic footnote, "I recognize that many believe that it is too late in the day to undertake a fundamental reexamination of the past 60 years." You confess that you, too, are a faint-hearted originalist. "Grinding to a halt," you say, "I always oppose." But then how do you reconcile this pragmatic concession with your purported devotion to original understanding?
Justice Scalia's opinion in the Brady case is even more awkward for originalists. You say that "Congress' powers are set forth for all to read, in the same words as when written." But Justice Scalia in the Brady case doesn't point to any constitutional text in particular, so I'm not sure which words you mean. Instead, Justice Scalia derives his vision of state sovereignty not from text but from history and tradition. As you say, he uses adjectives like "clear," "plain," incontestable," and "far outweighing any contrary indications" to describe his reading of constitutional history. But words like this are hyperbolic and unconvincing as characterizations of the early 19^th-century understanding of federal commandeering of state executive authority. The existence of a vigorous historical debate between Scalia and the dissenting justices, Souter and Stevens, about whether Hamilton's or Madison's views were more widely accepted in 1789 (and how can any of them know the answer?) is obviously enough "ambiguity" to meet the threshold that led Justice Scalia, in Harmelin and other cases, to defer to the political branches.
You concede that Justice Scalia may have changed his methodology between Harmelin and Brady, and that the "burden" for establishing an uncontested historical tradition may have "shifted." But why should it shift? Isn't the point of originalism to be consistent from case to case? You go on to say that even if the burden has shifted, the Constitution should be construed with presumption against infringements of state sovereignty. But this begs the question I was pressing you to answer: What is the historical authority from which the court is deriving its vision of state sovereignty in the first place?
James Madison's vision of "dual sovereignty"? That would mean that the national bank is unconstitutional. Joseph Story's vision of "dual sovereignty"? That would deny the constitutional achievements of the Civil War and Reconstruction. The pre-New Deal understanding of state sovereignty? Then we're back to Justice Thomas' problem of bringing the federal government to a grinding halt. A post-New Deal understanding of state sovereignty? But then the jurisprudence of original intention is out the window. I can't think of any way out of these dilemmas, which is why I reluctantly conclude that the court's efforts to enforce enumerated powers and to respect original understanding simply can't be reconciled in a principled way.
One last point. You say that when courts construe federal statutes, they should presume that Congress didn't mean to violate state sovereignty. Maybe so. But there's an even more venerable presumption, especially favored by partisans of judicial restraint: Courts should presume that federal statutes don't violate the Constitution. This brings us back to the other set of questions I raised initially: How can the court's new zeal for striking down acts of Congress be reconciled with a general commitment to judicial restraint? But maybe we should save those questions for another day.

Best regards,
Jeff Rosen

Dear Jeff:

Our exchange has us agreeing on the fundamentals--Congress' authority is limited to specific, "enumerated" powers; the original understanding of the Constitution was that courts would keep Congress within those limits; and courts today should continue to do so. Thus, you presumably do not subscribe to the view, expressed in the Supreme Court's 1985 Garcia case, that Congress' intrusions on state sovereignty cannot effectively be policed by the courts, and Congress must be left to be its own keeper.
You do express skepticism over whether "the court's effort to take seriously constitutional limits on Congress' power can be reconciled with the court's effort to take seriously a jurisprudence of original understanding." But it turns out that you mean the opposite of what this statement suggests--the court's recent concern to reassert limits on congressional power is consistent with, and indeed dictated by, the original understanding of the Constitution. You just don't think the court's "originalists" went far enough.
I will do my best to defend the concededly balanced approach of Chief Justice Rehnquist and Justices Scalia and Thomas.
Actually, the defense is simple: Your critique wholly fails to account for stare decisis, or respect for precedent. If the court's originalists in the Lopez case hesitated to return entirely to the original understanding of the Commerce Clause, they did so because they recognized that the country's reliance on the court's 60-year-old departure from the original understanding calls for great caution before reverting wholesale to that prior understanding. Justices who value originalism do not, as you imagine, begin anew in each case, selecting from among competing "visions" of constitutional meaning associated with different historical figures and times--Madison, Story, "pre-New Deal." Rather, the Constitution's original meaning is by definition its meaning at the time of origin, but there are occasions when court and country are already well down the road of an interpretation not wholly faithful to that meaning: In such instances, the originalist may determine to leave prior holdings undisturbed but to decide the case before him in a manner that departs no further from the original understanding, and that even--to the extent possible while giving precedent its due--reorients the court toward the Constitution's original meaning. This, I think, is a fair characterization of Lopez, where what you agree was the correct result was reached simply by distinguishing activities--like possessing a gun near a school--that are not "commercial" in even the broadest sense of the word.
Your second beef is with the court's decision in the Brady Bill case, but your argument seems to me no more than a quibble. You describe the case as "awkward for originalists," but au contraire: It's an originalist's dream, with majority and dissent virtually stipulating that the original understanding will be central to the outcome. You happen to find the dissent's explication of the original understanding more persuasive, but even if you're right (I say you're not), this has no methodological implication for originalism or congressional power beyond the case at hand. I note that you had to retreat from your initial claim that the case marked a reversal in method by Justice Scalia--he never "conceded" that the evidence in the Brady case was ambiguous. (Nor did I "concede" that he changed methods in the case, as you now claim.) You're also wrong that the majority did not consider constitutional text in the Brady Bill case: It devoted an entire section to Article II, and relied also on the 10^th Amendment and decisions interpreting it--precedent that you again ignore.
So Jeff, let's put your claim about the Brady case aside and return to Lopez and the Commerce Clause: You agree that Lopez was rightly decided, but think that to be consistent with originalism, the majority should have gone further. Would you have? If so, how far? And if not, by what theory of constitutional interpretation was Lopez right?

Gene Scalia

Dear Gene,

I've enjoyed our dialogue, and am delighted that we've ended up agreeing on so many of the points that initially divided us. In particular, we now seem to agree that Chief Justice Rehnquist and Justices Scalia and Thomas betrayed their methodological principles in cases involving congressional power. I began by confessing that I couldn't imagine a way of reconciling the justices' devotion to the original understanding of the Constitution with their efforts to take seriously constitutional limits on Congress' power. In your last post, you confess that you can't imagine a way of reconciling the conflicting impulses, either. Instead, you agree with my initial suggestion that the justices in the Lopez case made a pragmatic decision to ignore the original understanding of the Commerce Clause because they realized that striking down the entire post-New Deal regulatory state would be a very disruptive and mischievous thing to do.
By pointing to the conflict between originalism and pragmatism in cases involving congressional power, I certainly didn't mean to suggest that the court should have chosen originalism, and revived the crisis of 1935. You're right, of course, that any defensible effort to define the limits of Congress' power in 1997 should respect the intricate fabric of judicial precedents and political practices that have evolved since the New Deal. The problem is that respect for precedent isn't something that the originalist justices are ordinarily very concerned about. In a whole range of cases--and the effort to overturn Roe vs. Wade is only the most famous example--Justices Rehnquist, Scalia, and Thomas have insisted that the court repudiate decades of precedents that the country has come to accept, because the Constitution itself, rather than judicial misinterpretations of it, is the supreme law of the land. But if Roe vs. Wade should be overturned, why, by the same logic, shouldn't the court also overturn the New Deal cases that expanded the scope of the Commerce Clause beyond its original understanding? Since the three justices haven't given us a coherent theory of when, precisely, precedent should trump original understanding, it's hard to avoid the suspicion that their answer is driven by ad hoc policy judgments rather than by principle. You ask which camp I'm in. As I said earlier, I thought Chief Justice Rehnquist was right in the Lopez case. By what theory of constitutional interpretation was he right? On grounds of precedent alone, Rehnquist plausibly claimed that the Gun Free Schools Act violated the principle, first declared in 1937, that laws had to "substantially affect" interstate commerce to pass muster under the Commerce Clause of the Constitution. In the academy, where most scholars, I think, agree with Lopez, there are sophisticated efforts to defend the result as an exercise in constitutional "translation," adapting the original understanding of the Commerce Clause to a post-New Deal world. But these arguments involve many fancy steps, and they would hardly satisfy a justice who says he or she believes that the Constitution today should mean precisely what it meant in 1789 or 1868. If respect for precedent is enough to justify a constitutional decision, then Justice Scalia's excursion into original understanding in the Brady case was unnecessary. The court could have struck down the Brady Bill with far less fuss by simply invoking the authority of New York vs. United States, the 1992 case in which Justice O'Connor held that Congress can't commandeer the states' legislative processes by directly compelling them to enact and enforce a federal regulatory program. But should it have struck down the Brady Bill? This leads me back to the second question I posed at the beginning, and the one I'll ask you to address at the end: What about judicial restraint? The conservative judicial revolution was founded on two competing principles, both of which often point in opposite directions: the importance of original understanding and the importance of judicial restraint. The congressional-power cases, we've agreed, can't be reconciled with original understanding. But don't you also agree that they can't be reconciled with judicial restraint? I don't have any easy answers to the dilemmas we've discussed. But I do think they put people who consider themselves judicial conservatives (like you and me) in an awkward spot. Thanks again for an engaging dialogue.

Best regards,
Jeff Rosen

Dear Jeff:

I, too, have enjoyed our exchange, which has concerned two subjects. The first--the titled subject of the exchange--has been "government power," and particularly congressional power and the Supreme Court's renewed effort to ensure that Congress acts according to its limited, enumerated powers. On this aspect of our exchange, we do appear to agree: The court is being more attentive, and should be, to the limits the framers envisioned on congressional power.
Your agreement on this point is welcome. Some observers have charged that the Supreme Court has become too aggressive, and politically conservative, in scrutinizing federal power. It should reassure the general reader that the legal affairs editor of the New Republic thinks the court's renewed vigor is appropriate; and that, in the leading Lopez case, dissenting Justices Stevens, Souter, Ginsburg, and Breyer were wrong.
The second subject of our exchange has been of special interest to you--the court's "methodology" in these recent cases concerning congressional power. You have argued that if Chief Justice Rehnquist and Justices Scalia and Thomas had been true to their "methodological principles," they would have gone further in the Lopez case and overruled a line of cases dating back 60 years, thereby holding much of the current federal government to be unconstitutional. Your argument fails, however, for reasons I gave in my earlier submissions and for the additional reason that the Lopez case could be decided as it was, in a manner consistent with the original understanding of the Constitution, WITHOUT overruling prior case law.
This brings me to "judicial restraint," the subject you concluded with and on which I will conclude as well. Conservatives value judicial restraint because they believe that in a democracy, elected representatives (not unelected judges) should determine how we will be governed, except where the Constitution indicates otherwise. Interpreting the Constitution according to its "original understanding" does not conflict with judicial restraint, as you suggest; on the contrary, originalism literally "restrains" judges, who thereby review laws according to fixed constitutional meaning and not their personal perceptions of Fairness and Social Improvement and how the Constitution can be used to get there.
Respect for the original understanding of the Constitution is a critical part of judicial decision-making, but it is not the sole consideration, and no "originalist" justice has said it is. Similarly, no originalist justice has suggested that stare decisis (essentially, respect for precedent) be the court's sole consideration. (Thus, your suggestion that hesitation to go out of the way to overrule precedent in one case [Lopez] compels leaving undisturbed another case [Roe vs. Wade], and altogether precludes considering originalism in a third case [the Brady Bill case], cannot be taken seriously.) I concede that determining where to strike the balance between respect for the Constitution's original meaning and respect for precedent is sometimes a difficult part of constitutional decision-making. But you and I--as professed "judicial conservatives"--should look on the Supreme Court's recent congressional-powers cases with satisfaction at what I described in my first submission: The decisions "caus[ed] little if any disturbance in prior case law," yet "signal[ed] new resolve to enforce constitutional limits. Had the court ruled otherwise, the game would have been up; holding as it did, the court maintained a stable foundation from which it may approach more difficult questions of federal power."
I know that we both will watch for the court's future decisions in this area with interest.

Gene Scalia

Article URL: http://www.slate.com/id/3655/

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