Can a ten-year-old girl successfully sue a local school board for failing to prevent the sexual harassment of the young lady by an elementary-school classmate? Should an Alabama state court judge be able to display his hand-carved copy of the Ten Commandments in his courtroom? Can the people of a state decide that no state municipality is permitted to forbid discrimination on the basis of sexual orientation? Is a state forbidden from declaring that only English shall be used for official state business? These are a few of the more outlandish questions that federal courts have recently addressed. Some remain unresolved, but all suggest that the federal government, through the federal courts, is now engaged in supervising and circumscribing the activities of states and their people to an extent all but undreamed of until recently.
Two hundred and eight years ago, when the Tenth Amendment to the United States Constitution was ratified, there was general agreement with its text: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Two hundred and eight years ago, Americans thought of themselves as citizens of their states first, and only secondarily as citizens of a national federation. Now it is unclear that most Americans are even aware of the Tenth Amendment, let alone the principle that the federal government is supposed to be one of limited and enumerated powers.
How did we come to this pass? Is there any hope that the federal courts will once again read the Constitution and, at least to the extent implied by that document, resurrect something of the doctrine of states’ powers, if not states’ rights? In the nation’s law schools, among a very few professors and an increasing number of students, there is a faint sense that the federal government and the federal courts have gone too far. A national organization called the Federalist Society, with local chapters in many law schools and even many local bar associations, is now the most intellectually exciting and fastest-growing professional legal organization. Its central tenet is that the continued success of our republic depends on a reawakening of understanding that ours is a federal system—an aggregate of sovereign states united for common purposes but with divergent governmental philosophies. While it is ironic that the Federalist Society has adopted the name of the “strong central government” advocates of the late 18th century, even Washington, Hamilton, and Madison would have been astonished at present-day incursions of the central government and its courts.
The Federalist Society is swimming against the tide of most of recent legal history and legal philosophy. The story of the present usurpation of the states’ primary responsibility for domestic law and policy seems to begin in the legal academy in the first decades of the 20th century. For many years, the Supreme Court had held that neither the state nor the federal governments ought to be permitted to interfere with agreements between employers and employees and, in particular, that in government had any business dictating minimum wages or maximum hours for workers. Indeed, for the most part, state and federal courts were even hostile to workers’ organizations that sought, by collective bargaining, to raise wages or control hours or working conditions. The courts held that the doctrines which forbade state or federal interference with freedom of contract were based on fundamental Anglo-American principles of individual liberty, and that these principles were protected and enhanced by the Constitution.
A few judges—and many academics—vigorously began to dissent. Oliver Wendell Holmes, Jr., the great judicial skeptic who is regarded by most contemporary law professors as an even greater jurist than John Marshall, declared (almost certainly incorrectly) that the 1787 Constitution did not embrace any social theory—neither that of laissez-faire nor of the organic state. Holmes’ admirers, most prominently at the law schools of Harvard, Yale, and Columbia, soon put together a legal philosophy, if one can call it that, known as “Legal Realism.” The Legal Realists developed Holmes’ agnostic disdain into a broader set of notions that there are no hard and fast rules to the law, and that the decisions of courts are best recognized as social products of their times or of the preferences of individual judges. The Legal Realists dismissed the legal philosophy of the Kramers—that there are certain eternal, noble, and divinely inspired principles which form the essential foundation of the law and the Constitution—as so much sentimental nonsense.
President Franklin D. Roosevelt found the ideas of Legal Realism to his liking, and with the Democratic majorities in Congress in the 1930’s, he remade the nature of the federal government without benefit of constitutional amendment. At first the Supreme Court resisted, but after the smashing Roosevelt electoral victories of 19?2 and 1936 and Roosevelt’s threat to pack the Court with his appointees, it suddenly reversed itself hi major decisions in 1937, in what was later to be called the “Constitutional Revolution” (and might have been as aptly labeled the “Constitutional Abandonment”), the Supreme Court declared that Congress, through its power to regulate interstate commerce, could impose collective bargaining even on businesses carried on within a state, and that it was perfectly appropriate for states to regulate wages and hours, at least for women. Freedom of contract, it seemed, was dead as a constitutionally mandated principle.
One new precedent in favor of centralized power can easily sweep aside ten old ones against, and over the next 30 years, the federal courts permitted the interstate commerce power to be used to regulate areas as diverse as state wheat production and racial discrimination in restaurants and motels. Even more outrageously, what could not be done directly by federal legislation under the interstate commerce power could soon be accomplished indirectly by the federal courts’ interpretation of the 14th Amendment.
Passed after the Civil War, the 14th Amendment was originally designed to allow newly freed slaves to own property and to make contracts. But it became a tool, in the hands of mid-20th-century federal courts, to impose a centralized, secularized, and egalitarian social vision on the entire nation. Freed of the restraints of religion and tradition that the pre- Legal Realist jurisprudence had embraced, judges weaned on Legal Realism or Holmesian skepticism rewrote the 14th Amendment in the same manner that the New Deal Court had rewritten the Commerce Clause. Federal judges began to read the 14th Amendment provisions that no state should be permitted to deprive any person of the “equal protection of the laws” nor to deprive any person of life, liberty, or property without “due process” as a license to turn the restrictions of the Bill of Rights against the states and to set up strict rules about which state policies were permissible and which were not. With the scantiest evidence, and in the face of overwhelming data to the contrary, the Supreme Court declared that the 14th Amendment was designed to “incorporate” at least some, and perhaps all, of the protections of the Bill of Rights against state governments.
There is no doubt that the Bill of Rights, the first ten amendments to the point, had been drafted in the late 18th century in order to reassure the proponents of strong state governments that the federal government would not infringe on the sovereignty of the states or their people. Without even acknowledging the usurpation, the federal courts turned the Bill of Rights into a tool to reduce radically the discretion of the state governments.
The First Amendment clearly provides, for example, that “Congress shall make no law abridging the freedom of speech . . . or regarding an establishment of religion,’ but the congressional prohibition was soon read—blatantly contrary to the intention of the framers of the Bill of Rights, if not of those of the 14th Amendment itself—to extend to state legislatures and officials as well. The 14th Amendment was used to forbid Bible reading and prayers in state schools, to dictate permissible police practices by local law-enforcement officials, and, in general, to mandate educational and penal policy for states and localities. In the 1960’s, the federal courts, guided by egalitarianism and emboldened by the triumph of Legal Realism, ordered that all state legislatures had to be redistricted solely on population, even though, for almost two centuries, many states had emulated the federal government’s model and had an upper house of the legislature based on traditional political subdivisions.
In a final series of judicial social-engineering feats, the 14th Amendment’s Due Process Clause was read to bar any state or locality from interfering with unenumerated “privacy rights,” including the right of married adults to purchase contraceptives and the right of women to secure first-trimester abortions. The Supreme Court stopped just short of declaring that the 14th Amendment prohibited any state from enforcing laws against consensual sodomy, but the Court did declare, on the basis of the 14th Amendment, that no state could prohibit any of its localities from forbidding discrimination against homosexuals. To this day, no one has been able successfully to reconcile the two holdings—they stand as an affirmation of the triumph of Legal Realism.
When Ronald Reagan came to power in 1981, he swore he would appoint judges who would interpret, rather than rewrite, the Constitution, hi recent years, as Republican-appointed judges have settled into a semi-permanent majority on the Court, there have been some signs of a return to a Constitution with content. Federalism flourished in the 1995 ruling in the Lopez case that the federal government had no business, even using its commerce power, to regulate the carrying of guns in or near local schools. Nor, according to the Supreme Court, could the federal government conscript state officials to carry out its mandates regarding handgun regulation. Nevertheless, even a Court dominated by purportedly conservative Republican justices has held that the states were not permitted to impose term limits on their federal representatives, that states could not maintain male-only military academies, that local chapters of the Jaycees could not discriminate on the basis of sex, and that state courts could not permit peremptory challenges to jurors based on race.
Until very recently, the federal courts even tended to uphold federal requirements that state and local bodies enforce racially discriminatory “affirmative action” programs. These have now been all but outlawed by the Supreme Court, although the executive branch continues to try to implement them. Following federal statute, political redistricting was mandated in order to increase the number of minority elected officials, but fortunately this has come under increasing scrutiny, and there have even been signs that a majority of the Supreme Court is nearing a declaration that all government-mandated discrimination on the basis of race is unconstitutional. This may have been the principle actually enshrined in the 14th Amendment, and a return to a color-blind Constitution would have the serendipitous result of reducing federal influence on the states.
The federal courts, however, still have a powerful tendency to restrict state sovereignty. For example, in 1997, by a bare five-to-four majority, the Supreme Court held that the state of Maine could not give special state tax benefits to charitable institutions which served primarily state residents and deny them to institutions which served primarily out-of-state residents. Most of the decisions regarding redistricting, race, religion, or alleged rights of privacy have yet to be overturned.
Still, there are occasional moves in the right direction. In 1996, by a five-to-four majority, the Supreme Court reaffirmed the notion of state sovereignty by holding that Congress could not use the Indian Commerce Clause to abrogate the states’ sovereign immunity—their ancient right to decline to be subject to federal lawsuits for state actions.
State sovereign immunity was supposed to be protected by the 11th Amendment, which provides that “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” In that 1996 decision, the Supreme Court breathed new life into the amendment by recognizing that it stood for the proposition that “each State is a sovereign entity in our Federal system.” Unfortunately, in that very same case, the Supreme Court reaffirmed earlier holdings that, when rights arc asserted under the 14th Amendment or the Interstate Commerce Clause, state sovereign immunity goes by the board. The Court thus held—incredibly—that the 14th Amendment somehow implicitly repealed part of the 11th, while the Commerce Clause somehow trumps the later 11th Amendment.
The issue of state sovereign immunity—an essential aspect of state sovereignty—is once again before the Supreme Court. In an extraordinary case, a fifth-grade girl has brought a federal civil-rights suit against her local school board, arguing that it failed to protect her purportedly federally secured right to be free from sexual harassment by a male classmate. As the case was argued before the Court this January, it appeared that a majority of the judges were beginning to agree that, if local school boards were subject to federal lawsuits each time ten-year-old boys teased ten-year-old girls, the notion of local autonomy for schools—perhaps the very heart of states’ rights—was dead. This had been recognized by the federal court of appeals, which had ordered the dismissal of the case. The Clinton administration and feminist organizations demanded that the Supreme Court reverse the court of appeals and declare local school boards liable if they did nothing to prevent “sexual harassment” by fellow pupils. Sometime in the late spring or early summer, we will know how this case comes out, and whether the justices will rescue the states from this latest insult to their prerogatives.
Most legal analysts infer from the hostile questions asked of the ten-year-old plaintiffs lawyers that the justices will affirm the decision of the court of appeals and say that this incursion on local school board autonomy goes too far. The federal courts have also wisely dodged, for the moment, the question of the Alabama judge’s hand-carved copy of the Ten Commandments, which remains in his courtroom. While welcome affirmations of the constitutionally obvious, these are but tiny victories in a war that is all but lost.
The triumph of Legal Realism is still nearly complete, and not just in the federal courts on the issue of state sovereignty. President Clinton, as this is written, claims that 900 constitutional historians support his assertion that his obvious perjury before a grand jury, obstruction of justice, and witness-tampering—felonies all—are not grounds for his impeachment and removal from office. This is a strange construction of a Constitution which clearly mandates the dismissal of a President who commits “high crimes and misdemeanors.” The American people seem, at this writing, broadly to support their President and to believe his lies that his impeachment is just about “lying about sex.” If William Jefferson Clinton stays in office, and/or his Vice President succeeds him for another term, we can expect the appointment of more Supreme Court justices who share their Legal Realist views and their agenda for reducing the prerogatives of the states and expanding the reach of the federal government. This has consistently been the perspective of the two Clinton appointees, Justices Breyer and Ginsburg.
It may be too late to save state sovereignty and the original intention of the Constitution. A slew of bold Supreme Court appointments by a conservative Republican president might help, but so far only Justices Thomas and Scalia, and occasionally Justice Rehnquist, have acknowledged that the Court has been operating for one or two generations in clearly unconstitutional territory. The odds of nominating jurists with their sympathies are not great, and the possibility of getting them confirmed by a Senate which leans toward Legal Realism and away from the original understanding is slight. Perhaps nothing short of a new constitutional convention, or at least a slew of corrective constitutional amendments, will restore some semblance of state sovereignty. The Federalist Society, and the admirers of the Constitution of Madison, Hamilton, Washington, and even Jefferson, face an almost Sisyphean task.