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Federalism and the Double Standard of Judicial Review

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Federalism and the Double Standard of Judicial Review 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. BAKER & YOUNG.DOC 12/03/01 9:27 AM 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 AM. 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). BAKER & YOUNG.DOC 12/03/01 9:27 AM 2001] FEDERALISM AND THE DOUBLE STANDARD 77 In this Article, we seek to respond to these concerns by asking whether federalism and economic substantive due process really be- longed in constitutional exile together in the first place. The Supreme Court has not, of course, taken the Lochner experience as a cue to abandon the power of judicial review altogether. Instead, the Court simply has shifted its most searching judicial scrutiny from one class of cases, generally involving state and federal regulation of economic life, to others, involving free speech, personal privacy, and racial and gender equality.10 This shift is frequently described as “a double stan- dard of judicial attitude, whereby governmental economic experimen- tation is accorded all but carte blanche by the courts, but alleged vio- lations of individual civil rights are given meticulous judicial attention.”11 The very idea of double standards is problematic. As our col- league Douglas Laycock aptly insists, “we should take the whole Constitution seriously. We cannot legitimately pick and choose the clauses we want enforced.”12 Without losing sight of this point, we mostly will set it aside for purposes of this Article.13 The fact is that for much of the last century, the Supreme Court, with widespread academic support, has behaved as if “constitutional provisions are like the animals in George Orwell’s barnyard: some are considerably 10. For recent examples, pointing in both “conservative” and “liberal” directions, see, e.g., Stenberg v. Carhart, 530 U.S. 914, 945–46 (2000) (striking down a state ban on “partial birth” abortion procedures); Boy Scouts of America v. Dale, 530 U.S. 640, 659 (2000) (holding that a state antidiscrimination law violated the constitutionally protected freedom of association); United States v. Virginia, 518 U.S. 515, 558 (1996) (holding that state operation of a single-sex military academy violated the Equal Protection Clause); Romer v. Evans, 517 U.S. 620, 635 (1996) (striking down a state constitutional provision disadvantaging homosexuals); Rosenber- ger v. Rector of the University of Virginia, 515 U.S. 819, 845–46 (1995) (striking down, under the Free Speech Clause, a state university program that excluded religious publications from re- ceiving school funds); Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995) (striking down a federal affirmative action program for racial minorities); R.A.V. v. City of St. Paul, 505 U.S. 377, 396 (1992) (holding that the First Amendment precluded prosecution for cross burn- ing). See also Griswold v. Connecticut, 381 U.S. 479, 486 (1965) (recognizing a constitutionally protected right to privacy); Brown v. Bd. of Educ., 347 U.S. 483, 495 (1954) (holding that ra- cially segregated public schools violate the Equal Protection Clause). 11. HENRY J. ABRAHAM, FREEDOM AND THE COURT: CIVIL RIGHTS AND LIBERTIES IN THE UNITED STATES 10 (4th ed. 1982) (emphasis added). 12. Douglas Laycock, Equal Citizens of Equal and Territorial States: The Constitutional Foundations of Choice of Law, 92 COLUM. L. REV. 249, 267 (1992); see also Sanford Levinson & Ernest A. Young, Who’s Afraid of the Twelfth Amendment? 29 FLA. ST. U. L. REV. (forthcom- ing 2001) (manuscript at 44–45, on file with the Duke Law Journal) (suggesting “plausible rea- sons to treat all constitutional violations as equally worthy of concern”). 13. But see infra Part II.C (suggesting that the same judicial competence issues that make courts reluctant to enforce federalism also ought to militate against judicial articulation of dou- ble standards). BAKER & YOUNG.DOC 12/03/01 9:27 AM 78 DUKE LAW JOURNAL [Vol. 51:75 more equal than others.”14 What we want to explore in this Article is why the Constitution’s principles of federalism have been grouped with the goats rather than the sheep.
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