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BAKER & YOUNG.DOC 12/03/01 9:27 AM

FEDERALISM AND THE DOUBLE STANDARD
OF JUDICIAL REVIEW

LYNN A. BAKER†

ERNEST A. YOUNG††

INTRODUCTION

From 1937 to 1995, federalism was part of a “Constitution in ex-
ile.”1 Except for the brief interlude of the National League of Cities
doctrine2—which, like Napoleon’s ill-fated return from Elba, met with
crushing defeat3—the post–New Deal Supreme Court has been al-
most completely unwilling to enforce constitutional limits on national
power vis-à-vis the states.4 The reason, by all accounts, has much to
do with federalism’s historic link to other aspects of our expatriate

Copyright © 2001 by Lynn A. Baker and Ernest A. Young.
† Thomas Watt Gregory Professor, University of Texas School of Law. B.A. 1978, Yale

University; B.A. 1982, Oxford University; J.D. 1985, Yale Law School. E-mail: [email protected]
utexas.edu.

†† Assistant Professor, University of Texas School of Law. B.A. 1990, Dartmouth College;
J.D. 1993, Harvard Law School. E-mail: [email protected]

This Article is based on a paper presented at the Constitution in Exile conference
hosted by the Program in Public Law at Duke University School of Law on October 5–7, 2000.
We are grateful to Chris Schroeder for inviting us and to the conference participants for their
comments and questions. Special thanks to Ann Althouse, Frank Cross, Calvin Johnson, Neil
Kinkopf, Susan Klein, Larry Kramer, Sandy Levinson, and Bob Young for their helpful com-
ments, as well as to Richard Markovits and the student participants in his legal scholarship
seminar. Cristina Carlucci, Chris Johns, Sean Keveney, Victoria Matthews, and Brenna Ryan
provided excellent research assistance. We also like to take every chance we get to thank our
spouses, Sam Dinkin and Allegra Young, for putting up with us generally.

1. By “Constitution in exile, ” we refer to the organizing metaphor of this conference.
2. See Nat’l League of Cities v. Usery, 426 U.S. 833, 852 (1976) (holding that generally

applicable federal regulatory laws could not be enforced against state governments “in areas of
traditional governmental functions”).

3. See Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 531 (1985) (expressly
overruling the National League of Cities doctrine).

4. It may be, as Professor Van Alstyne has observed, that this exile was not complete until
Garcia’s rejection of National League of Cities in 1985. William W. Van Alstyne, The Second
Death of Federalism, 83 MICH . L. REV . 1709, 1722 (1985). Until Garcia, Van Alstyne argues,
judicial enforcement of the Constitution ’s federalism provisions may have been very deferential
to federal power, but the Court had never disavowed the power of review altogether. Id.

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76 DUKE LAW JOURNAL [Vol. 51:75

constitution—e.g., economic substantive due process, legislative non-
delegation—which were banished for their collusion against the New
Deal.

The revival of federalism as a constitutional force in 1995 with
the Supreme Court’s decision in United States v. Lopez5 has spurred
renewed efforts to link “states’ rights” to the discredited aspects of
the Court’s pre–New Deal jurisprudence. Dissenting in Lopez, for
example, Justice David Souter emphatically tied the Court’s aggres-
sive enforcement of Commerce Clause limits on federal power to the
economic substantive due process of Lochner v. New York:6

The fulcrums of judicial review in [economic substantive due proc-
ess] cases were the notions of liberty and property characteristic of
laissez-faire economics, whereas the Commerce Clause cases turned
on what was ostensibly a structural limit of federal power, but under
each conception of judicial review the Court’s character for the first
third of the century showed itself in exacting judicial scrutiny of a
legislature’s choice of economic ends and of the legislative means
selected to reach them.

7

Viewed in this light, the Lopez Court’s holding that Congress had ex-
ceeded the limits of its commerce power entailed “a backward glance
at both the old pitfalls” of the Lochner era.8 Nor is Justice Souter the
only critic of Lopez and similar cases to ask whether the Rehnquist
Court ’s revival of enforceable federalism limits on national power
“portend[s] a return to the untenable jurisprudence from which the
Court extricated itself almost 60 years ago.”9

5. 514 U.S. 549, 567 (1995) (invalidating the federal Gun-Free School Zones Act, 18
U.S.C. § 922 (1994), as beyond Congress’s authority under the Commerce Clause). One might
alternatively trace this “federalist revival,” Vicki C. Jackson, Federalism and the Uses and Limits
of Law: Printz and Principle?, 111 HARV . L. REV . 2180, 2213 (1998), to the Court’s somewhat
earlier decisions in New York v. United States, 505 U.S. 144, 174–188 (1992) (holding that Con-
gress may not “commandeer” state legislatures by forcing them to enact laws), or Gregory v.
Ashcroft, 501 U.S. 452, 470 (1991) (establishing a “clear statement rule” disfavoring statutory
constructions that alter the federal balance).

6. 198 U.S. 45, 64 (1905) (striking down a state maximum-hours law for bakers as a viola-
tion of the “freedom of master and employee to contract” protected by due process).

7. Lopez, 514 U.S. at 606 (Souter, J., dissenting).
8. Id. at 608.
9. Id. For similar concerns, see, e.g., Peter M. Shane, Federalism’s “Old Deal”: What’s

Right and Wrong with Conservative Judicial Activism, 45 VILL . L. REV . 201, 208 (2000); Dan
Braveman, Enforcement of Federal Rights Against States: Alden and Federalism Non-Sense, 49
A M. U. L. REV . 611, 656 (2000). See also John Gibbons, Our Federalism, 12 SUFFOLK U. L.
REV . 1087, 1096–99 (1978) (making similar charges against earlier judicial enforcement of fed-
eralism).

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2001] FEDERALISM AND THE DOUBLE STANDARD 119

ing that polygamy is “forever prohibited.”202 As Justice Scalia has
pointed out, this requirement amounted to an “effort by the majority
of citizens to preserve its view of sexual morality . . . against the ef-
forts of a geographically concentrated and politically powerful mi-
nority to undermine it.”203 The preferences of polygamists in the new
western states, however, did not “undermine” the marriage laws of
the majority of states in any direct sense. Rather, the majority states
seem to have acted out of a straightforward desire to impose their
own moral code on others in the absence of a constitutional amend-
ment reflecting a nationwide consensus on the issue.

A second scenario involves an attempt by some states to capture
a disproportionate share of federal monetary or regulatory largesse.
Any conditional offer of federal funds, for example, is highly likely to
make some states better off at the expense of other states.204 Such an
offer implicitly divides the states into two groups: (1) states that al-
ready comply, or that without financial inducement would happily
comply, with the funding condition, and for which the offer of federal
money therefore poses no real choice; and (2) states that find the
funding condition unattractive and therefore face the choice of fore-
going the federal funds to avoid complying with the condition or
submitting to undesirable federal regulation to receive the offered
funds. One therefore would expect such conditional funding legisla-
tion to be enacted only if a (substantial) majority of states fall within
the first group: that is, they already willingly comply with, or favor,
the stated condition, and the conditional offer of funds is therefore no
less attractive to them than a similar unconditional offer. For the
states in the majority (and their congressional representatives), a vote
in favor of the conditional grant is nearly always a vote to impose a

202. Arizona Enabling Act, ch. 310, 36 Stat. 557, 569 (1910); New Mexico Enabling Act, ch.
310, 36 Stat. 557, 558 (1910); Oklahoma Enabling Act, ch. 3335, 34 Stat. 267, 269 (1906); Utah
Enabling Act, ch. 138, 28 Stat. 107, 108 (1894). The complying state constitutional provisions—
which are still in force—may be found at ARIZ. CONST. art. XX, ¶ 2; N.M. CONST. art. XXI, § 1;
OKLA. CONST. art. I, § 2; UTAH CONST. art. III, § 1. Indeed, the Arizona, New Mexico, and
Utah enabling acts required that these provisions be “irrevocable without the consent of the
United States and the people of said State.” Arizona Enabling Act, ch. 310, 36 Stat. at 569; New
Mexico Enabling Act, ch. 310, 36 Stat. at 558; Utah Enabling Act, ch. 138, 28 Stat. at 108.

203. Romer v. Evans, 517 U.S. 620, 648 (1996) (Scalia, J., dissenting). The majority’s opposi-
tion to polygamy may be traceable to abolitionist ideology as well as sheer anti-Mormon senti-
ment. See Akhil Reed Amar, Race, Religion, Gender, and Interstate Federalism: Some Notes
from History, 16 QUINNIPIAC L. REV. 19, 24 (1996) (asserting that in 1865 the Republican party
considered slavery a form of polygamy).

204. For a more extensive discussion of this argument, see Baker, Conditional Federal
Spending, supra note 161, at 1939–51; Baker, Spending Power, supra note 15, at 212–17.

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burden solely on other states. Whether a state that finds the funding
condition unattractive (and is therefore in the minority) chooses to
decline the offer of federal funds or to acquiesce in the stated condi-
tion, those states in the majority may well improve, and will only
rarely worsen, their competitive position relative to that state.205

An example will make the phenomenon more concrete. If most
states already have set their minimum drinking age at twenty-one, for
example, then those states should find it attractive to impose a
drinking age condition on federal highway funds.206 Such a condition
would bring about one of two possible results. Either outlier states
with minimum drinking ages lower than twenty-one will comply with
the condition, accepting the preferences held by the dominant major-
ity, or they will forfeit whatever amount of highway funds are tied to
the condition. The latter result, of course, would leave more funds
available for those states in the majority. The ability to impose
spending conditions thus presents states in the majority with a “no
lose” proposition—“no lose,” that is, except to the extent that such
measures undermine the autonomy of all states in the long run.

A final scenario arises when states seek federal regulation to
avoid externalities or other collective action problems associated with
regulating a particular subject at the state level. Consider, for exam-
ple, a not-so-hypothetical state of affairs under which a majority of
the states wishes to discourage homosexual relationships. A solid
majority of the citizens in each of these states may share this prefer-
ence and support state laws making clear that gay partners are not en-
titled to family benefits, that gay couples cannot adopt children, and
the like. Nonetheless, the leaders of these states may know that many
private companies are more progressive on these issues and that the
minority states that refuse to enact such anti-homosexual laws will
have an advantage in attracting corporate facilities to their state. The
states in the majority thus may seek to enact their anti-homosexual
social preferences at the federal level. The primary goal here, unlike
in the first scenario discussed above, need not be the imposition of
the majority states’ moral code on the remaining states or the preser-
vation by the majority states’ citizens of their view of sexual morality
against the efforts of a politically powerful minority to undermine it.

205. By “competitive position” here we mean a state’s position, relative to other states, in
the competition for individual and corporate residents and their tax dollars.

206. South Dakota v. Dole, 483 U.S. 203 (1987); see Baker, Conditional Federal Spending,
supra note 161, at 1943–45, 1978–87 (discussing Dole).

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has labored under the double standard for so long that any propo-
nents of judicial review in federalism cases—no matter how mild that
review ultimately might be in its application—are easily tarred as “ex-
tremists.” As Robert Nagel eloquently argues, however, it is the “na-
tionalists” who long have taken the more radical positions.396 Thus,
the “most extreme version of radical nationalism proposes the elimi-
nation of the states,”397 while “[m]odern antifederalists do not want to
abolish the national government. . . . By and large, they do not even
argue for significant changes in current political practices. The most
that can be said is that they do not accept the view that states are of
no value in our political system.”398

Professor Nagel concludes that “there is no antifederalist pro-
gram equivalent to the radical nationalist position that dominates the
case law and the academy and is taken for granted.”399 An equiva-
lently radical antifederalist proposal, he believes, “would be to abol-
ish the national government and return to the kind of confederation
that preceded unification. Such a return would involve abolishing the
House of Representatives, the Presidency, much of the Judicial
Branch, the Bill of Rights, national taxation, and all commerce clause
regulation.”400 Professor Nagel adds that “[a]s far as I know, no one
on the Court or in the academy even mentions, much less supports,
any of these changes.”401

We have attempted, in this Article, to help “normalize” debates
about federalism and judicial review. We have questioned the long-
standing assumption that states’ rights are somehow importantly dif-
ferent from other areas of constitutional law in which the necessity
and value of judicial review are taken for granted. We have argued,
therefore, that concerns about judicial competence, necessity, and the
normative value of federalism are all insufficient to justify a double
standard of judicial review between federalism and other constitu-

396. Robert F. Nagel, Real Revolution, 13 GA. ST. U. L. REV. 985 (1997).
397. Id. at 988. Nagel notes that this “idea in one form or another has had advocates as far

back as Alexander Hamilton, and an adventuresome modern thinker occasionally mentions
some variation. Such proposals are important mainly in indicating how wide the range of per-
missible discourse is among radical nationalists.” Id. (footnotes omitted).

398. Id. at 1003.
399. Id. at 996.
400. Id.
401. Id. Mr. Young wishes to note that while his coauthor has proposed a radical restruc-

turing of one whole chamber of the national legislature, see Lynn A. Baker & Samuel H.
Dinkin, The Senate: An Institution Whose Time Has Gone?, 13 J.L. & POL. 21, 23 (1997), the
most radical thing he has ever proposed is the application of the Erie doctrine in maritime cases.
Ernest A. Young, Preemption at Sea, 67 GEO. WASH. L. REV. 273, 277 (1999).

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tional principles. To say that, of course, is merely to begin a long and
complex discussion about what sort of judicial review we should have
in this area. That conversation cannot move forward, however, until
we welcome constitutional federalism home from its long “exile.”

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