Opponents of federalism are mired in a time warp

By Charles Fried

The Wall Street Journal, May 16, 2000

The Constitution grants Congress the power to “regulate commerce among the several states.” But that doesn’t mean Congress can give women who are the victims of “gender motivated violence” a federal cause of action against their assailants. For that reason, the Supreme Court yesterday struck down the Violence Against Women Act (VAWA). To have ruled otherwise, the court would have had to abandon its 1995 decision that the Commerce Clause did not allow Congress, in the Gun Free School Zone Act, to make it a federal crime to possess a gun in the vicinity of a school.

If the court had upheld these laws, it would have given free rein to Congress, as Chief Justice William Rehnquist wrote yesterday, to “use the Commerce Clause to completely obliterate the Constitution’s distinction between national and local authority.” Given Congress’s frequently demonstrated tendency to use the federal law as a billboard for whatever cause will attract national attention, this concern for the integrity of our constitutional structure is certainly warranted.

Both the VAWA and Gun Free School Zone cases — along with the court’s other federalism rulings — were decided by 5-4 votes. Not only have these federalism cases been as closely divided as they can be, but there is a depressing fixity in the makeup of the factions. The dissenters have been the same — John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer — and they have recycled the same arguments, making it clear they will persist until one more vote comes their way. In yesterday’s decision, Justice Souter made it clear that he “doubt[s] that the majority’s view will prove to be enduring law.”

This not only makes for dismal reading, but has had a baleful effect on the development of the law. By refusing to accept the majority’s attempt to breathe life into the federalism doctrine, the dissenters — who include some of the ablest minds on the court — have missed the opportunity to collaborate in fashioning a meaningful, yet practical, demarcation between the national and the local.

Instead of that enterprise, which is what a well-functioning court should give us, we have a rearguard action by justices who seem to be caught in a time-warp. The dissenters write as if they were the students of Felix Frankfurter defending the New Deal against the devastation of the pre-1937 court and its “nine old men.” But there is no danger that we will return to those times when the court thought Congress lacked power to impose federal wage and hours laws or national labor laws.

In yesterday’s case, the losing plaintiff had alleged she was the victim of a brutal rape, for which there is ample redress in the courts of every state. To bring this into federal court, Congress had to claim that all the days of work lost by similar victims added up to a “substantial effect on commerce” — a form of reasoning, as Justice Rehnquist wrote, that would permit Congress “to regulate not only all violent crime, but all activities that might lead to violent crime, regardless of how tenuously they relate to interstate commerce.”

The lines are hard to draw. In the VAWA case the court drew them sensibly. But in other federalism cases the court has produced results that can only be considered absurd. That is because some of the federalism cases have been shaped more by the majority’s need to keep five votes together — there is always the danger that someone will defect — than by the dictates of law or logic.

Good examples of this illogic are the 1995 and 1996 “sovereign immunity” cases, in which the court held that Congress may not authorize ordinary citizens to sue the states in any court, state or federal, to enforce citizens’ rights against the state. In one case, state employees claimed to have been underpaid under the federal wage and hours law. In the other, private citizens complained that the state had infringed their patent rights.

How does it make sense to say that Congress may impose wage and hours laws on states, but that state employees — unlike any other workers — cannot sue in any court to enforce that right? Or that the states are as bound by the patent laws as anyone else, but that, unlike private patent violators, they may not be sued in the specialized federal court system set up to deal with patent violations?

These nonsensical results can only have come about because the majority of the court lacked the confidence (or the votes) to simply say that the laws in question were an infringement of states’ rights. Instead the court tried to achieve the same result through the back door, by preserving the laws but making their enforcement impossible. If the four dissenting justices were not mired in unyielding obstructionism, they would join with the majority to shape a more sensible federalism doctrine.