TABLE OF CONTENTS
Page
I. Introduction 1
"A legislature is not a court of law." 1
Courts should not "tread on legislative ground." 1
"Surely Congress has the power . . ." 2
II. Judicial Review under the Rehnquist Court 5
"[T]o pass the line which circumscribes the judicial department" 5
A. Commerce Clause: Lopez and Morrison 5
B. Section V of the Fourteenth Amendment 6
City of Boerne: Setting the Standard 6
Progeny of City of Boerne: 11th Amendment Cases 8
Florida Prepaid 8
Kimel 10
Garrett 11
C. A Few Reflections 12
III. Sharing Duties of Constitutional Interpretation 14
The power to "say what the law is" 15
IV. Conclusion 17
"An immense and frightening antidemocratic power" 17
(Bush v. Gore)
MEMORANDUM OF LAW
From: Laurence H. Tribe
Re: Supreme Court encroachment on congressional authority
Date: April 5, 2001
The Supreme Court has traditionally recognized the considerable latitude that the Constitution grants Congress to choose the means of carrying out its powers under Article I and the Civil War Amendments, and thus has deferred to legislative determinations of the necessity and propriety of particular measures. The Court as currently composed, however, seems increasingly willing to second-guess the judgments of Congress, even in areas that the Constitution explicitly entrusts to the legislative branch. Recent decisions of the Rehnquist Court (most of which are supported by the same five-Justice majority) have cut back not only on congressional authority - within judicially set outer boundaries - to interpret the Constitution, but also on Congress's ability to choose the means of implementing its enumerated powers. The current Court's effort to aggrandize itself vis-à-vis the democratically elected legislature has upset the traditional institutional balance between the political and judicial branches, and may threaten our system of democracy itself.
This memo examines the potential threat posed by the Rehnquist Court's recent decisions regarding congressional power. In Part I, the memo examines the different institutional capacities of the judicial and legislative branches, and explains that courts, by their very nature, are ill-equipped to make the types of determinations that the legislature regularly must make when it enacts laws. Part I then conducts a historical survey of the Supreme Court's relationship with Congress, highlighting its traditional deference to congressional legislation that does not infringe on a particular constitutional protection. Part II reviews the jurisprudence of the Rehnquist Court, demonstrating the sharp contrast between the deferential past, and the current Court's heightened scrutiny of federal statutes enacted pursuant to Congress's affirmative powers, such as the Commerce Clause of Article I and § 5 of the Fourteenth Amendment. Part III examines the competencies of the legislative and judicial branches with respect to constitutional interpretation. Finally, Part IV concludes with a word on the recent presidential election, and characterizes it not as an aberration but rather as an unsettling illustration of a larger trend on the Court today.
I
INTRODUCTION
"A legislature is not a court of law." (1)
The Supreme Court's traditional deference to Congress seemed to stem, in large part, from its recognition of the distinct institutional characteristics of the legislative and judicial branches: While the courts must decide individual cases and controversies, employing strict evidentiary standards, the legislature's capabilities of factfinding, compromise, and prophylactic system-management enable it to protect rights as a whole better than the courts. Even more fundamentally, an unelected judicial institution such as the U.S. Supreme Court must, in a nation where power lies ultimately in the people, take care to ensure that its rulings do not intrude without constitutional justification upon the will of that popular sovereign. By contrast, a representative body like Congress, because it embodies the mandate of the people, is not similarly constrained. Thus, the very institutional factors that counsel restraint when the Supreme Court itself defines the bounds of a constitutional right likewise recommend deference, when the Court examines a congressional measure to protect federal rights. (2)
Courts should not "tread on legislative ground" (3)
In McCulloch v. Maryland, (4) the Court, speaking through Chief Justice John Marshall, established the primary standard of review of legislation enacted pursuant to Congress's affirmative powers (5) -- the rational relationship standard:
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. (6)
The McCulloch Court held that Congress could employ any means rationally related to effectuating one or more of its enumerated powers, as long as the chosen means did not conflict with another constitutional provision or constraint. In the 1960s, the Court found that Congress has similarly broad power to enforce the Thirteenth, Fourteenth and Fifteenth Amendments. (7)
McCulloch made clear that the Court, when reviewing federal legislation under the rational relationship standard, should not second-guess Congress's determinations regarding the means that are "necessary and proper" to carry out its enumerated powers. (8) If a court finds that a federal statute is rationally related to the effectuation of one or more of the broad objectives the Constitution affirmatively empowers Congress to pursue, and does not infringe on any constitutional right or transgress any constitutional prohibition, it must defer to Congress's clearer representative mandate as well as to its greater capacity to arrive at politically legitimate compromises and to make broad factual determinations. As the Supreme Court declared in McCulloch v. Maryland, to do otherwise "would be to pass the line which circumscribes the judicial department, and to tread on legislative ground." (9)
"Surely Congress has the power . . ." (10)
The Supreme Court's Commerce Clause jurisprudence tells the story of a judiciary that learned the hard way not to tread on legislative ground. The unbending, and rather arbitrary, lines drawn by the Court from the 1880s until the mid-1930s in the commerce area (for example, distinguishing "commerce" from "mining" and "manufacturing") (11) brought it into serious disrepute until it abandoned that course in 1937, (12) and such a judicial role in economic regulation is "now[]discredited." (13) Since the late 1930s and early 1940s, the Supreme Court, recognizing its own institutional limitations, for decades deferred to Congress's judgments regarding the effect of an activity on commerce, (14) including legislative determinations that the minimum wage and hour standards of individual industries, (15)or the racially discriminatory activities of an individual restaurant (under an "aggregation" or "cumulative effects" principle), would substantially affect commerce. (16)
In the 1960s, when Congress began more vigorously enforcing the civil rights protections of the Thirteenth, Fourteenth, and Fifteenth Amendments, the Court demonstrated its keen awareness of Congress's broad authority to determine the most suitable means of carrying out its affirmative powers. The Court made clear that, in enforcing the protections of the Fifteenth Amendment, Congress could do more than simply prohibit unconstitutional conduct. Even if a litigant could not prove that a state practice (such as one that diluted minority voting strength) itself violated the Constitution, Congress could prohibit such conduct if it rationally determined that the prohibition was likely to prevent other state action that was unconstitutional. (17)
In a similar vein, beginning with Katzenbach v. Morgan, (18) the Court has repeatedly indicated that Congress might, when enforcing the protections of the Fourteenth Amendment, prohibit a state activity (there, requiring certain Peurto Rican voters in New York to pass English literacy tests) that the Supreme Court had held does not violate the Constitution, if Congress reasonably determined that such a measure was necessary or useful to prevent violations of the Constitution by the state or its subdivisions. (19)
In Jones v. Mayer, (20) the Court upheld Congress's authority pursuant to § 2 of the Thirteenth Amendment to prohibit private radical discrimination in the real estate and housing markets through the use of racially restrictive covenants. (21) Even though § 1 of the Amendment, which simply decrees that "[n]either slavery nor involuntary servitude… shall exist within the United States," does not itself outlaw mere discrimination based on race, the Court, citing McCulloch, (22) acknowledged the plenary authority of Congress to define the necessary and proper means of addressing what it could rationally deem to be slavery's contemporary legacy, (23) holding that this authority encompasses the power "to determine what are the badges and the incidents of slavery, and the authority to translate that determination into effective legislation." (24) In cases subsequent to Morgan and Jones, the Court repeatedly acknowledged Congress's power both under Article I and pursuant to § 5 of the Fourteenth Amendment or pursuant to the other enforcement provisions of the Civil War Amendments to enact prophylactic measures to deter, or remedial measures to redress, violations of constitutional guarantees. (25)
II
JUDICIAL REVIEW UNDER THE REHNQUIST COURT
"[T]o pass the line which circumscribes the judicial department" (26)
Against this backdrop of long-standing judicial deference, it is striking to observe how significantly recent decisions of the Rehnquist Court have cut back on Congress's ability to choose the means of implementing its enumerated powers. (27) In 1976, the Court, for the first time in forty years, declared that Tenth Amendment precepts constitute an independent source of judicially enforceable limits on the exercise of congressional power. (28) Correspondingly, in 1996, the Court held that the Eleventh Amendment, whose text and history whisper not a hint of any such meaning, prohibits Congress from abrogating state sovereign immunity pursuant to its Article I enumerated powers. (29) Increasingly, a bare majority of the Court, in the name of protecting states' rights, has also been asserting a dubious power to second-guess congressional determinations with respect to its affirmative powers. And the combined effect of the Court's Eleventh Amendment holdings and such second-guessing has, as we shall see, been particularly devastating.
A.
The Commerce Clause
Lopez and Morrison
Given the controversial history of the Supreme Court's Commerce Clause jurisprudence, it may seem surprising that the Court would ever again challenge legislative determinations with respect to interstate commerce that are least arguable. Yet in United States. v. Lopez, (30) the Court held that, in enacting Section 922(q)(1)(A) of the Gun-Free School Zones Act (31) (which established federal criminal liability for knowing possession of a handgun within a school zone), Congress had exceeded its power under the Commerce Clause, because the conduct regulated - possession of a gun near a school - did not itself substantially affect interstate commerce, and because that activity, not being commercial in character, was ineligible for aggregation so as to evaluate its cumulative impact on the nation's commerce. (32) In a somewhat similar vein, in United States v. Morrison, (33) the Court held that a section of the Violence Against Women Act of 1994 (VAWA), (34) which would have provided victims of gender-motivated violence with a civil remedy in federal court against their private attackers, was not a proper exercise of congressional authority under the Commerce Clause, because incidents of violence against women were not economic or commercial activities, whose impact could properly be aggregated to assess the substantiality of their effect on interstate commerce. Morrison, however, differed from Lopez in that Congress, in the case of VAWA, compiled a vast legislative record to support its findings that violence against women had a substantial negative effect on commerce and on the national economy. (35) Nevertheless, the Court, in both cases, for the first time since before the New Deal, refused to defer to Congress's determination that a particular activity affected interstate commerce to an extent that warranted the exercise of its Article I power.
The decisions in Lopez and Morrison were surprising to many and were certainly notable in that they demonstrated that the Court, far from rubber-stamping, would closely scrutinize exercises of that power whenever its object falls outside the Court's notions of the commercial. Even so, Lopez and Morrison may not prove to be extensive limitations, as a practical matter, on Congress's power to enact law. (36) The decisions discussed below, in which the Court placed substantial limitations on congressional authority pursuant to § 5 of the Fourteenth Amendment to enact and enforce laws, seem more likely to have a significant - indeed, potentially severe - impact on the ability of Congress to enforce laws protecting individual rights.
B.
Section V of the Fourteenth Amendment
City of Boerne: Setting the Standard
In City of Boerne v. Flores, (37) the Court defined the outer boundaries of Congress's § 5 enforcement power. Congress had passed the Religious Freedom Restoration Act of 1993 (RFRA), by nearly unanimous votes in both houses, stating its intent (38) to overrule Employment Division v. Smith, (39) a decision in which the Court held that it would not subject neutral, generally applicable laws to strict scrutiny (even when the laws, as applied, severely burdened the exercise of religion). (40) Recognizing that some language in Katzenbach v. Morgan (41) could be understood to mean that Congress had the authority under §5 to enact legislation that reflected a constitutional interpretation different from that decreed by the Court, the majority specifically addressed the issue and denied the existence of any such shared congressional power to define constitutional rights. (42) The Court in City of Boerne acknowledged that "[i]t is for Congress in the first instance to 'determin[e] whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment,' and its conclusions are entitled to much deference." (43) Nevertheless, said the Court, although Congress may adopt preventive rules and remedial measures under § 5 to protect rights guaranteed by the Fourteenth Amendment, (44) it may not disagree with the Court's interpretation as to the existence or scope of constitutional guarantees. In the Court's view, "Congress does not enforce a constitutional right by changing what the right is. It has been given the power 'to enforce,' not the power to determine what constitutes a constitutional violation." (45)
Without protest on the merits from any Justice on this crucial point, the majority summarily dismissed the idea that Congress could "decree the substance of the Fourteenth Amendment's restrictions on the States." (46) In so doing, the Court initiated what appeared to be a significant and lasting cutback on congressional power by pronouncing that measures enacted pursuant to § 5 must exhibit "a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end," (47) rather than simply requiring that such measures be plausible as means of enforcing an arguable interpretation of the Fourteenth Amendment, and that they not violate the Bill of Rights. The Court in City of Boerne provided less guidance than would have been desirable on the tough question of how anyone, and especially the Court, is to judge such proportionality and congruence. Nor did the Court elucidate how, in light of McCulloch v. Maryland's (48) explicit declaration that it was institutionally troublesome and constitutionally dubious for the judiciary to decide such questions of "degree," the Court could apply a "congruence and proportionality" standard.
Progeny of City of Boerne: Eleventh Amendment Cases
The absence of any dissent on the merits of the Court's § 5 analysis suggests that the Court did not see itself in City of Boerne as announcing a transformation, much less a significant one, in the law. But subsequent cases vindicated those who suggested that the Court's decision in City of Boerne worked a significant change indeed in the legal landscape that had evolved around § 5 of the Fourteenth Amendment.
As noted previously, Congress no longer has the authority to abrogate state Eleventh immunity pursuant to Article I - with the result that it is only by exercising its power under § 5 of the Fourteenth Amendment that Congress may require states to submit to citizen suits in federal court. (49) The application of City of Boerne in the Eleventh Amendment context has demonstrated the stringency of the "congruence and proportionality" standard. Even when the Court agrees that Congress has the power to enforce the right in question, (50) it still makes its own determination as to the precise scope of the right, and studies the legislative record for proof of a pattern of frequent state violations of the right as formulated by the Court and for proof that abrogation of state immunity is needed. Thus the Court, performing a function clearly at odds with its special institutional role (and completely inconsistent with the teachings of McCulloch), carefully scrutinizes a question of degree - the "congruence and proportionality" of the remedy provided by Congress.
Florida Prepaid
In Florida Prepaid v. College Savings Bank, (51) the Court, interpreting the power of Congress to abrogate state Eleventh Amendment immunity to enforce the Patent and Plant Variety Protection Remedy Clarification Act, first agreed with Congress that a patent was "property right" entitled to protection under the Fourteenth Amendment. (52) However, noting that the Fourteenth Amendment applies only to state deprivations of property "without due process of law," the Court went on to contend that Congress must prove not only that the States had infringed many patents, but also that there were no adequate remedies at state law (for example, under state tort law). (53) The Chief Justice examined the legislative record and found first, little proof of widespread patent violations (54) and, second, almost no evidence that Congress even considered the issue of state remedies. (55)
Justice Stevens, writing for the four dissenters, (56) demonstrated that Congress had in fact compiled a substantial legislative record, (57) but because the legislative materials failed to establish the strict necessity of the federal legislation, the majority treated the statute as doomed under City of Boerne. In short, without even mentioning McCulloch v. Maryland's (58) flatly contrary approach, the Florida Prepaid Court essentially took unto itself the responsibility of deciding whether the violations Congress chose to address are sufficiently "widespread and persisting" (59) to make the particular remedy Congress decided to enact a suitably tailored response. Thus have laws enacted by Congress pursuant to § 5 suddenly been saddled with something between intermediate and strict scrutiny, effectuating what can only be understood as a substantial, albeit not conclusive, presumption of unconstitutionality.
To be sure, preventing those injured by state violations of federal standards from suing the state for damages as a result of those violations left often the possibility of injunction suits seeking prospective relief only and of suits for damages on behalf of the injured brought by the Labor Department. But those possibilities must not be allowed to obscure Congress's determination that, in this case as in many health and safety and environmental matters, budgetary and other limitations may well make enforcement through damage suits by private litigants the only practical way to translate congressional rhetoric into economic and environmental power. Congress's efforts to revise the patent (60) and bankruptcy laws (61) to declare explicitly its intent to abrogate state immunity, as well as its inclusion of similar provisions in various pieces of civil rights legislation, (62) indicate Congress's determination that citizen suits for monetary relief are helpful in ensuring compliance with these laws by making noncompliance costly. Recent Supreme Court decisions invalidating these congressional attempts to abrogate state sovereign immunity thus threaten to hamper the legislature's ability to enforce federal law by the means it deems most "necessary and proper." (63)
Kimel
The Court's searching analysis of the comprehensive congressional record in Florida Prepaid indicated that future attempts to abrogate state Eleventh Amendment immunity would be unlikely to withstand the Court's careful scrutiny. And, as predicted, in Kimel v. Florida Board of Regents, (64) the same five-Justice majority found that Congress did not have the power under § 5 to enforce the Age Discrimination in Employment Act of 1967 (ADEA) by authorizing federal damage suits by state employees against the States as sovereigns.
Equating the Court's past holdings subjecting state age classifications to only rational-basis review (and upholding them on that basis) with a statement of the Court's own view of age classifications, rather than construing its own prior holdings (65) as mere instances of institutional deference to state political processes, the Court in Kimel - not accustomed to thinking of itself as acting out of such deference - construed those prior holdings as substantive determinations of the limited scope of the constitutional right. Having supposedly determined age discrimination in employment to be constitutional unless patently irrational, the Court had little patience for any contrary conclusion by Congress. (66)
Garrett
In Board of Trustees of the University of Alabama v. Garrett, (67) the same 5-4 majority once again asserted its monopoly over constitutional interpretation, reaffirming that "it is the responsibility of this Court, not Congress, to define the substance of constitutional guarantees" (68) - a mantra of exclusivity that had by then become routine. Writing for the majority, Chief Justice Rehnquist, applying the "now familiar principles" of City of Boerne, (69) argued that, like the elderly, the disabled enjoyed only minimal constitutional protection. (70) Thus, the States could discriminate against the disabled, just as they could against the elderly, provided that they had some rational basis for doing so. (71) The Chief Justice then went on to assess whether Congress had "identified a history and pattern of unconstitutional employment discrimination by the States against the disabled." (72) He found the legislative record inadequate to support such a "history and pattern" of unconstitutional conduct. (73) The Court, conducting its own admittedly "close review" of the legislative materials, determined that the record contained only six "real" instances of unlawful state action. (74) The Court thus concluded that Congress had not properly identified a sufficient volume of constitutional violations to justify abrogating state immunity from suit. (75)
The Court still had to confront one of its own precedents, Cleburne v. Cleburne Living Center, Inc., (76) in which - after upholding on its face, under minimum rationality review, a local ordinance requiring that group homes for the mentally retarded must apply for and obtain special use permits - the Court had proceeded to examine the record more closely, employing heightened as-applied scrutiny, to overturn the city's denial of a special use permit to the particular group home involved in the case. (77) Evidently unable to fit that decision into its insistence that the Equal Protection Clause never permits even a court to demand more than minimum rationality to justify discrimination against the mentally disabled and thus that Congress, surely, could demand no more under § 5 (a massive non sequitur), the Garrett majority simply misstated what the Court in Cleburne had done! (78)
Justice Breyer, writing on behalf of the dissenters in Garrett, accused the majority of requiring Congress to assemble a record that would support a judicial finding of state discrimination, and observed pointedly that "a legislature is not a court of law." (79) The dissent remarked, after reviewing the rich legislative record, that "[t]he Court's failure to find sufficient evidentiary support may well rest upon its decision to hold Congress to a strict, judicially created evidentiary standard." (80) Justice Breyer argued that this strict standard was at odds with the Court's institutional role and with the resulting traditional deference to Congress, (81) and that it seemed reminiscent of the Court's "now-discredited" commerce clause jurisprudence. (82) The dissent concluded, in a statement that could have been supported by a citation to McCulloch v. Maryland, that "[t]he Court, through its evidentiary demands, its non-deferential review, and its failure to distinguish between judicial and legislative constitutional competencies, improperly invades a power that the Constitution assigns to Congress." (83)
C.
A Few Reflections
The troubling results of Florida Prepaid, Kimel and Garrett mean that the Court is now ignoring the profound differences between courts and legislatures that should make Congress its valuable partner in the protection of constitutional rights. The legislature is not bound by presumptions, standards of review, burdens of proof, and other procedural bars. (84) Thus, Congress, when fulfilling its constitutionally delegated role to make laws appropriate to enforce the Fourteenth Amendment, should not be limited to the standards of proof that courts must follow. Yet, the Court not only subjected Congress to a "strict, judicially created evidentiary standard," but also took on a quasi-legislative role for itself. By the Court's own admission, its use of a "congruence and proportionality" test requires it to engage in the very judgments of "degree" that Chief Justice Marshall wisely held in McCulloch were utterly inappropriate for the judiciary. To make such inquiries, the Chief Justice declared in McCulloch, is "to pass the line which circumscribes the judicial department, and to tread on legislative ground." (85) Insofar as the Court has stepped over that line, its usurpation of Congress's institutional role threatens the delicate balance of powers among the branches established by our Constitution.
III.
SHARING DUTIES OF CONSTITUTIONAL INTERPRETATION
Dickerson v. United States (86) brought the Court back to the difficult issue examined in City of Boerne: Congress's power to override a Court decision by enacting legislation that reflects a contrary constitutional interpretation. In Dickerson, the Court considered the constitutionality of 18 U.S.C. § 3501 (a statute passed in the wake of Miranda v. Arizona (87) to replace the Court's rule that defendants be read their Miranda rights with a more flexible test to ensure that confessions be voluntary). (88) Once again relying on the principle first pronounced in City of Boerne - that "Congress may not legislatively supersede our decisions interpreting and applying the Constitution" - the Court sought to determine "whether the Miranda Court announced a constitutional rule or merely exercised its supervisory authority [which exists] in the absence of congressional direction." (89) Finding that it had established such a "constitutional rule," the Court declared that its decision "may not be in effect overruled by an Act of Congress." (90) Only then did the Court ask whether it should overrule Miranda; for reasons of stare decisis, it decided it should not do so. (91)
As Justice Scalia's dissent forcefully argued, the Court's analysis seemed at odds with Marbury v. Madison, (92) because, instead of first finding that 18 U.S.C. § 3501 violated the Constitution (as a Court must to justify striking down a duly enacted law), the Court concentrated solely on whether its decision in Miranda could not be "contradict[ed]" by the legislature. (93) Justice Scalia accused the majority of suggesting "that this Court has the power, not merely to apply the Constitution but to expand it, imposing what it regards as useful 'prophylactic' restrictions upon Congress and the States. That is an immense and frightening antidemocratic power, and it does not exist." (94) Justice Scalia reasoned that § 5 of the Fourteenth Amendment demonstrated that, "[w]here the Constitution has wished to lodge in one of the branches of the Federal Government some limited power to supplement its guarantees, it has said so." (95) In fact, Justice Scalia claimed, implicitly acknowledging the strict review to which the Court had subjected recent § 5 legislation, "[t]he power with which the Court would endow itself under a 'prophylactic' justification for Miranda goes far beyond what it has permitted Congress to do under authority of that text." (96)
The power to "say what the law is" (97)
Although Justice Scalia's main point - that the Constitution itself does not require the Miranda warning - is a questionable one, (98) his argument that the Court may invalidate a statute only upon holding that it violates the Constitution, and not merely upon showing that the statute contradicts a Court decision about the Constitution, seems irrefutable. The Court's power of judicial review does not permit that the Constitution always be equated with the Supreme Court's view of it.
Even conceding that point, it seems that the Court's power "to say what the law is" (99) might carry with it a dormant limitation on the power of other branches to engage in constitutional interpretation. But this need not be the case. A functional approach - allowing Congress a limited power to define - to broaden or to narrow - the content of Fourteenth Amendment rights could be reconciled, at least in theory, with Marbury v. Madison (100) and the Court's power of judicial review. (101) It is the Court's responsibility, under Marbury, to strike down acts of Congress which the Court concludes are unconstitutional - nothing more. Marbury implies little or nothing about the criteria by which the Court should determine whether an act of Congress is constitutional; it requires only that such criteria exist, should be meaningful, and should derive from the Constitution. (102)
When the Court announces a constitutional rule, it should not be understood to be defining a single point of constitutional meaning, but rather a range of points within a larger constitutional sphere. Indeed, given the quite different institutional and federalism-based constraints under which the judicial branch and the political branches operate, the Supreme Court should never imagine itself to be divining the one true meaning of a concept like equal protection or free religious exercise but should, rather, think of itself as discerning the boundaries of a range of permissible meanings, with the understanding that, at least in theory, different subsets of that range might correspond to the constructions permissible for Congress when acting pursuant to § 5.
This more flexible understanding of the Court's exercise of constitutional interpretation allows the judiciary to "say what the law is" while still taking account of Congress's need for flexibility to carry out its functions. As the Court defines the contours of constitutional meaning, Congress will fill in the spaces between the boundaries thus outlined and will thereby help the Court gather a firmer understanding of where the outer perimeters of constitutional meaning should lie. Such is the dialogue contemplated by the text, structure and history of the Constitution; such is the dialogue in which a current five-Justice majority insistently refuses to engage, and which that majority abruptly ends.
IV
CONCLUSION
"[A]n immense and frightening antidemocratic power" (103)
Bush v. Gore (104) seems to reflect a culmination of sorts in the five-Justice majority's growing encroachment upon Congress's power. Through its per curiam opinion, the majority contravened Article II and the Twelfth Amendment, which commit to Congress the authority and responsibility to count electoral votes. (105) The Constitution arguably sought to minimize the Court's role in resolving closely contested federal presidential elections, since Congress - as a political body - obviously expresses the people's will far more accurately than could an unelected Court. (106) If the majority had left the counting to Congress, its decision might have reinforced (or, for the more cynical, instilled) the view that the Court did not, after all, deem itself the sole voice of the Constitution and that the Court's views of the Constitution were not the only legitimate views. Instead, the five-Justice majority again all but asserted that it is the law and that it defines both legal and political reality.
In its recent treatment of congressional legislation enacted under the Commerce Clause of Article I and § 5 of the Fourteenth Amendment, and, most recently, its disdainful treatment of Congress (and of the state courts) in Bush v. Gore, the Rehnquist Court, in seeking to install itself as the sole authoritative expositor of the Constitution, has radically constricted the reach of Congress's power to perform its institutional role.
No such monolithic claim to power is contemplated in the Constitution's design, whose genius lies in pluralism and in the interplay of checks and balances, and no such monolithic claim can attributed to the far narrower assertion of institutional prerogative made by Marbury v. Madison. (107) By continually narrowing the authority of the most directly representative branch of the national government, the Court has thwarted the basic plan through which the Constitution preserves democracy and protects liberty. Thus, the recurring 5-4 majority of the Court on these matters has become a genuine threat to our system of government - a threat that can be redressed only by the closest attention to the future composition of the Court. Assuming the role of final arbiter of democratic stability, five Justices in Bush v. Gore attempted to avoid the "irreparable harm" to the country that they perceived would result from "casting a cloud" over the
legitimacy of the next President. (108) In so doing, those Justices may have cast a cloud over the legitimacy of the Court itself - even if not, as Justice Scalia put it in another context, as "some sort of nine-headed Caesar, giving thumbs-up or thumbs-down to whatever outcome, case by case, suits or offends its collective fancy," (109) then as an institution that, however decent its intentions, has come to threaten important underpinnings of constitutional democracy.
1. 1 Bd. of Trustees of the Univ. of Ala. v. Garrett, 121 S. Ct. 955, 971 (2001) (Breyer, J., dissenting) ("Congress,
unlike courts, must, and does, routinely draw general conclusions-- for example, of likely motive or of likely
relationship to legitimate need-- from anecdotal and opinion-based evidence of this kind, particularly when the
evidence lacks strong refutation.").
2. 2 3 McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 423 (1819).
4 17 U.S. (4 Wheat.) 316 (1819).
5 See, e.g., U.S. Const. art. I, § 8 (enumerating affirmative congressional powers).
6 McCulloch, 17 U.S. (4 Wheat) at 421; see Tribe, supra note 2, § 5-3, at 805.
7 Each of the Civil War Amendments contains a provision declaring that "Congress shall have power to enforce
this article by appropriate legislation." See U.S. Const. amend. XIII, § 2; U.S. Const. amend. XIV, § 5; U.S.
Const. amend. XV, § 2. See Jones v. Mayer, 392 U.S. 409, 439 (1968); see id. at 443 (affirming broad
congressional power to enforce the Thirteenth Amendment); Katzenbach v. Morgan, 384 U.S. , 641, 657 - 58
(upholding analogous power with respect to the Fourteenth Amendment); South Carolina v. Katzenbach, 383
U.S. 301, 326); see id. at 337 (upholding analogous power under the Fifteenth Amendment).
8 See McCulloch v. Maryland, 17 U.S. (4 Wheat) 316, 423 (1819); U.S. Const., art. I, § 8, cl. 18 ("Congress
shall have Power . . . To make all Laws which shall be necessary and proper for carrying into Execution the
foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or
in any Department of Officer thereof.").
9 17 U.S. (4 Wheat.) 316, 423 (1819).
10. 10 11 See Tribe, supra note 2, § 5-4, at 810 - 17.
12 See id. § 5-4, at 811 (discussing National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S.
1 (1937) and other decisions expanding the scope of congressional power to regulate interstate commerce).
13 Bd. of Trustees of the Univ. of Ala. v. Garrett, 121 S. Ct. 955, 975 (2001) (Breyer, J., dissenting).
14 See Tribe, supra note 2, § 5-4, at 814 - 15.
15 See United States v. Darby, 312 U.S. 100, 118 - 119 (1941) (invoking McCulloch v. Maryland as well as the
Commerce Clause to uphold the wage and hour provisions of the Fair Labor Standards Act.); Tribe, supra note
2, § 5-4, at 812 - 13.
16 See Katzenbach v. McClung, 379 U.S. 294 (1964) (deferring to congressional determination that
discriminatory practices by a small restaurant, if aggregated with other similar practices, could have a serious
effect on commerce; see also Heart of Atlanta Motel, Inc., v. United States, 379 U.S. 241, 258 - 59 (1964)
(upholding power of Congress to prohibit discrimination in places of public accomodation); Wickard v. Filburn,
317 U.S. 111, 127 - 28 (1942) (judging a farmer's production of wheat for home consumption by the
cumulative effects standard to fall within Congress's regulatory power). See id. at 129 n.29 (citing McCulloch).
See Tribe, supra note 2, § 5-4, at 813 - 15.
17 See id. § 5-16, at 933 - 34 (comparing City of Mobile v. Bolden, 446 U.S. 55 (1980) (holding that at-large
voting procedure did not constitute a constitutional violation if the litigant could not prove intentional
discrimination), to City of Rome v. United States, 446 U.S. 156 (1980) (upholding prohibition of a similar
practice under the Voting Rights Act of 1965, which requires a showing of discriminatory purpose or effect).
18 384 U.S. 641 (1966).
19 See Katzenbach v. Morgan, 384 U.S. 641, 652 (1966) (holding that, although the Court had found in Lassiter
v. Nothamption County Board of Elections, 360 U.S. 45 (1959), that English literacy requirements did not
violate the Equal Protection Clause, Congress could reasonably have determined, based on its findings
regarding historical discrimination against the Puerto Rican community in New York, that a prohibition of
English literacy tests there was a useful means of empowering that community to protect itself through the use
of the franchise against unconstitutional discrimination based on national origin.). This part of the holding of
Katzenbach v. Morgan - essentially that Congress may empower a community by extending to it a broader right
to vote than Section 1 of the Fourteenth Amendment alone would secure - is the narrower and less controversial
of the opinion's grounds for upholding Congress's action. See Tribe, supra note 2, § 5-16, at 937.
20 392 U.S. 409 (1968).
21 Id. at 443.
22. 22 24 Id. at 440.
25 See, e.g., Fullilove v. Klutznick, 448 U.S. 448, 483 (1980); City of Richmond v. J.A. Croson Co., 488 U.S.
469 (1989). See Tribe, supra note 2, § 5-16, at 937 - 41 (3d ed. 2000) (discussing congressional power to
enact prophylactic measures to prohibit practices that do not per se violate the Civil War Amendments).
26 McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 423 (1819).
27 See, e.g., Lopez v. United States, 514 U.S. 549 (1995) (holding that Congress does not have affirmative
power under the Commerce Clause to enact the Gun-Free School Zones Act of 1990).
28 See Tribe, supra note 2, § 5-11, at 861 - 63 (discussing the Court's use of the Tenth Amendment in National
League of Cities v. Usery, 426 U.S 833 (1976), to declare the Fair Labor and Standards Act, which would
otherwise be a valid exercise of Congress's commerce power, unconstitutional as applied to state employees).
The holding in National League was later overruled by Garcia v. San Antonio Metropolitan Transit authority,
469 U.S. 528 (1985), see Tribe, supra note 2, § 5-11, at 873, but its declaration about the important limitations
on congressional power inherent in the Tenth Amendment remained influential. See infra note 31.
29 See Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996) (holding that Congress does not have the power
under the Indian Commerce Clause of Article I to abrogate a state's immunity from suit by a private citizen in
federal court).
30 514 U.S. 549 (1995).
31 18 U.S.C. § 922(q)(1)(A).
32 See Lopez, 514 U.S. at 546-66, 568-69.
33 529 U.S. 598 (2000).
34 42 U.S.C. § 13981.
35 Morrison, 529 U.S. at 612 ("[T]he existence of congressional findings is not sufficient, by itself, to sustain
the constitutionality of Commerce Clause legislation.").
36 See Tribe, supra note 2, § 5-5, at 825 ("As least as important as what United States v. Lopez is most likely
to have affected . . . is what Lopez did not touch."); id. at 825 - 33) (discussing Congress's still broad power
to enact legislation under the Commerce Clause).
37 521 U.S. 507 (1997).
38. 38 39 494 U.S. 872 (1990).
40 See Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990).
41 384 U.S. 641 (1966).
42 City of Boerne v. Flores, 521 U.S. 507. 529 (1997).
43. 43 44. 44 45 Id. at 519.
46 Id.
47 Id. at 520.
48 17 U.S. (4 Wheat.) 316, 419-21, 23 (1819) (stating that "degree" of necessity for remedial legislation is for
Congress, not the courts, to decided). See Tribe, supra note 2, § 5-16, at 958 - 59.
49 The Court has consistently reaffirmed its holding in Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), that Congress
may abrogate Eleventh immunity when it acts pursuant to § 5. The Court explained the difference in Congress'
Article I and § 5 powers by arguing that the latter "operated to alter the pre- existing balance between state and
federal power achieved by Article III and the Eleventh Amendment." Seminole Tribe of Florida v. Florida, 517
U.S. 44, 65 - 66 (1996).
50 The Court's decision in College Savings Bank v. Florida Prepaid, 527 U.S.666 (1999), which invalidated
a congressional attempt to abrogate state immunity under the Trademark Remedy Clarification Act, differed
from the cases discussed in the text in this respect. In College Savings, the Court disagreed with a congressional
determination that a trademark constituted property within the meaning of the Fourteenth Amendment. Id. at
673. See Tribe, supra note 2, § 5-16, at 959.
51 527 U.S. 527 (1999).
52 Id. at 637.
53 Id. at 642 (quoting U.S. Const. amend. XIV, § 1.) (emphasis by the Court). That this matter should have
seemed relevant is hard to reconcile with the Court's interpretation of 42 U.S.C. § 1983, a federal statute that
permits individuals to bring suit in federal court against state officials who, acting in their official capacity,
violate federal rights. See Monroe v. Pape, 365 U.S. 167 (1961). In Patsy v. Bd. of Regents of the State of
Florida, 457 U.S. 496 (1982), the Court held that § 1983 contains no exhaustion requirement, thereby allowing
individuals to sue state actors in federal court without first seeking state administrative remedies. 457 U.S. at
516. Thus, in the context of § 1983, a citizen can collect damages for state violations of a federal law without
first proving that there were no procedural remedies at state law. The Court's insistence in Florida Prepaid
that Congress demonstrate a lack of state procedural remedies seems patently inconsistent with the Court's
holding in Patsy.
54 Id. at 640 - 41.
55. 55 Id. at 643. The Court's observation about this evidence is quite remarkable. 56 Justice Stevens' dissenting opinion was joined by Justices Souter, Ginsberg and Breyer.
57. 57 58 17 U.S. (4 Wheat.) 316, 419 - 21, 423 (1819) (degree of necessity of a remedial measure is for legislative,
not judicial branch, to decide). See Tribe, supra note 2, § 5-16, at 958 n. 166.
59 Florida Prepaid v. College Savings Bank, 527 U.S. 627, 645 (1999) (quoting City of Boerne v. Flores, 521
U.S. 507, 526 (1997) (internal quotation marks omitted)).
60 See Florida Prepaid v. College Savings Bank, 527 U.S. 627, 631 - 32 (1999) (observing that Congress, in
response to the Court's sovereign immunity jurisprudence, amended the Patent and Plant Variety Protection
Remedy Clarification Act to state expressly congressional intent to abrogate state sovereign immunity and
require states to submit to suit in federal court for patent violations).
61 See Troy A. McKenzie, Eleventh Amendment Immunity in Bankruptcy: Breaking the Seminole Tribe Barrier,
75 N.Y.U. L. Rev. 199, 212 (2000) (noting that, in response to Supreme Court decisions holding that
Bankruptcy statute did not contain a clear statement of congressional intent to abrogate state sovereign
immunity, Congress amended the Act in 1994 to state explicitly its intent to require states to submit to suit).
The Supreme Court has not yet ruled on the validity of the abrogation provisions of the Bankruptcy Act, but
many commentators agree that the Court is likely to find them unconstitutional. Id. at 215 - 16.
62 See, e.g., Bd. of Trustees of Univ. of Alabama v. Garrett, 121 S. Ct. 955, 960 (2001) (observing that Congress
in the Americans with Disabilities Act expressed the intent to abrogate state sovereign immunity and allow
citizens to enforce the Act by bringing suits for damages against state violators).
63 U.S. Const. art. I, § 8, cl. 18.
64 120 S. Ct. 631 (2000).
65 See Vance v. Bradley, 440 U.S. 93 (1979) (holding that federal statute does not violate equal protection
component of Fifth Amendment Due Process Clause by requiring employees covered by the Foreign Service
retirement and disability system, but not those covered by the Civil Service retirement and disability system,
to retire at the age of fifty); Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307 (1976) (holding that
Massachusetts law requiring police officers to retire at the age of sixty does not violate Equal Protection
Clause).
66 Thus, the Court's self-aggrandizement of the sole power to define the entire meaning of the scope of
Fourteenth Amendment protections made the supposed absence of sufficient legislative findings by Congress
almost an afterthought. Cf. id. at 89 (the Court declaring the Act invalid essentially on its face, before the Court
analyzed its specific remedial provisions).
67 121 S. Ct. 955 (2001).
68 Id. at 963 (emphasis added).
69 Id. at 963.
70 Id. at 963 - 64.
71 Id. at 964.
72 Id. at 965.
73 The Court disregarded some of the evidence of state discrimination as too antiquated to be significant, id.
at 965 n.6 (noting congressional findings that the states had participated in the eugenics movement of the early
twentieth century), and insisted that all of the evidence regarding local governments was entirely irrelevant
simply because local governments lack Eleventh Amendment immunity. Id.
74. 74 75 See Bd. of Trustees of Univ. of Alabama v. Garrett, 121 S. Ct. 955, 965 - 66 (finding only "minimal evidence
of unconstitutional state discrimination.").
76 473 U.S. 432 (1985).
77 Id. at 450.
78. 78 79. 79 80 Id. at 972.
81. 81 82 Id. at 975 (Breyer, J., dissenting).
83 Id. at 975 - 76.
84 See Oregon v. Mitchell, 400 U.S. 112, 248 (1970) (Brennan, White, and Marshall, JJ., concurring in part and
dissenting in part) ("Limitations stemming from the nature of the judicial process . . . have no application to
Congress.").
85 17 U.S. (4 Wheat.) 316, 423 (1819).
86 120 S. Ct. 2326 (2000).
87 384 U.S. 436 (1966).
88 Id.
89 120 S. Ct. at 2332-33.
90 Id. at 2329.
91 Id. at 2336.
92 5 U.S. (1 Cranch) 137 (1803).
93 120 S. Ct. at 2332-33.
94 Id. at 2337 (dissenting opinion).
95. 95 96. 96 97 Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
98. 98 100 5 U.S. (1 Cranch) 137 (1803).
101 Some commentators have suggested that a legislative interpretive authority might interfere with the power
of the judiciary to "say what the law is." See Tribe, supra note 2, § 5-16, at 942 (citing authorities).
102 Although he has signed each of the recent majority opinions invalidating congressional action under § 5,
Justice Scalia conceded this point in Dickerson: "The issue, however, is not whether court rules are "mutable";
. . .. The issue is whether, as mutated and modified, they must make sense. The requirement that they do so is
the only thing that prevents this Court from being some sort of nine-headed Caesar, giving thumbs-up or
thumbs-down to whatever outcome, case by case, suits or offends its collective fancy." 120 S.Ct. at 2342
(emphasis in original).
103 Dickerson v. United States., 120 S. Ct. 2326, 2337 (2000) (Scalia, J., dissenting).
104 121 S.Ct. 525 (2000).
105 See id. at 555 (Breyer, J., dissenting).
106 See id. at 556.
107 5 U.S. (1 Cranch) 137 (1803).
108 See Bush v. Gore, 125 S. Ct. 512, 512 (2000) (Scalia, J., concurring in the judgment to grant a stay.).
109 Dickerson v. U.S., 120 S. Ct. 2326, 2342 (2000) (Scalia, J., dissenting).