Statement of Professor Eugene Volokh

before the Subcommittee on Administrative Oversight and the Courts

at the hearing entitled

“Should Ideology Matter? Judicial Nominations 2001,” June 26, 2001

Mr. Chairman, Senator Sessions, thank you for inviting me to address this very important topic. My name is Eugene Volokh, and I’m a professor of law at the University of California at Los Angeles.

The chief point I’d like to make today is that the Supreme Court’s recent jurisprudence, including the views of the Court’s more conservative members, has been firmly within the mainstream of American constitutional thought. One may agree or disagree with this jurisprudence, but one has to acknowledge that it’s entirely mainstream.

The substantive federal power decisions (United States v. Lopez, 514 U.S. 549 (1995), City of Boerne v. Flores, 521 U.S. 507 (1997), and United States v. Morrison, 529 U.S. 598 (2000)) are excellent examples of this sort of mainstream, eminently justifiable constitutional decisionmaking. The Constitution clearly sets up a federal government of enumerated powers—this is one of the fundamentals of James Madison’s scheme. That’s clear from the text of the document, and from all the contemporaneous historical evidence.

By very mildly reining in federal power, the Supreme Court has simply reaffirmed this fundamental constitutional principle. In fact, in one of these cases, Boerne, even Justices Stevens and Ginsburg agreed that the Congress had overreached its enumerated powers. And in Jones v. United States, 529 U.S. 848 (2000), all nine Justices (in an opinion written by Justice Ginsburg) took the view that applying a federal arson statute to “traditionally local criminal conduct” with no connection to commercial activity would at least pose a very serious constitutional problem.

Moreover, even in Lopez and Morrison, the debate was between the more liberal Justices’ position that Congress has powers that are 100% unlimited (except by the Bill of Rights), and the more conservative Justices’ position that Congress has powers that are 95% unlimited. Congress still has tremendous powers, even in areas of traditional state influence. The Court simply recognized that at some point even Congress’s great powers go too far. The decisions are important, but they are mostly symbolic constraints. They do not seriously interfere with Congress’s power to legislate.

Likewise, the state sovereign immunity decisions are part of a tradition that goes back a century and a half. There’s a contentious historical debate about how the Constitution should be interpreted on this question; I don’t know which side is right on this matter. But though as a policy matter I do not like sovereign immunity, it’s clear to me that the Court’s decisions follow a longstanding tradition, and are consistent with the great majority of the precedents.

Though the Rehnquist Court has not tried to transfigure the legal system by overturning state laws anywhere nearly as much as the Warren Court did, it has been striking down federal laws more often than past courts have. But this is largely because there are now more federal laws than in the past, especially in constitutionally sensitive areas.

Before the advent of the Internet, most speech restrictions (except in the specialized area of radio and television broadcasting) were imposed by states. Congress had never passed the Book Decency Act or the Movie Decency Act. But when Congress stepped in to restrict speech in the new nationwide (and international) medium of the Internet, naturally the Court stepped in, and imposed on Congress the same rules that it had long imposed on the states.

Until recent years, violent crime—except in the context of clearly interstate transactions—was largely seen as a state matter. But when Congress enacted laws such as the Gun-Free School Zones Act or the Violence Against Women Act, the Supreme Court had to step in and consider whether Congress had overreached the constitutional boundaries. That is the Court’s job, and the further Congress tries to reach, the more likelihood there will be that there is indeed overreaching.

Eugene Volokh

Professor of Law

UCLA School of Law