To the Editor:
I read the lucid and cogent article by David B. Rivkin, Jr. and Lee A. Casey, “Federalism (Cont’d.)” [December 1996], with interest and sympathy.
I served as law clerk to Justice Louis D. Brandeis in the 1935-36 Supreme Court term. It is inconceivable to me that he would have differed from the position of the authors. Moreover, to turn to an issue of enormous concern to me, Justice Brandeis would surely have supported the single-sex status of Virginia Military Institute (VMI) and also of the Citadel, responding not only to his belief in states’ rights but also to his identification with the South. I testified by deposition on behalf of the single-sex status of VMI, and was cross-examined at enormous length by lawyers from the New York ACLU, who were also attacking the Citadel.
The provincialism vis-à-vis the traditional South of Justice Stephen Breyer and other members of the Court majority in the VMI case would seem, in the light of the position of Messrs. Rivkin and Casey, a flagrant attack on responsible federalism.
It goes without saying that I do not believe that all the states will do a marvelous job in matters now redelegated to them, but, as the article makes clear, the authors do not believe that the purpose of the Supreme Court is to save us from ourselves or, rather, it should do so only in cases of the most clear-cut interferences with liberty and with freedom of speech.
David Riesman
Harvard University
Cambridge, Massachusetts
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To the Editor:
David B. Rivkin, Jr. and Lee A. Casey mention the Supreme Court’s requirement that all state laws must, at a minimum, be rationally related to a proper governmental purpose in order to be constitutional. This rule, which they call “uncontroversial,” is predicated on the Fourteenth Amendment’s equal-protection clause. Unlike the authors, however, I believe that this doctrine is not only controversial but dead wrong.
Messrs. Rivkin and Casey also cite the Tenth Amendment, which says that those powers which the Constitution does not give to the federal government or prohibit to the states—in other words, powers simply not referred to at all—are reserved (exclusively) to the states. If not expressly prohibited, in fact, states can generally make laws even on matters that are addressed by federal law (though, because of the Constitution’s supremacy clause, in cases of conflict state laws will succumb). Aside from these restrictions, however, it was intended that the states be free to legislate without limits, as the Tenth Amendment makes perfectly clear.
Nor was the equal-protection clause intended to change all this. Considering that it was part of the post-Civil War amendments, it is nearly impossible to believe that it was understood to address anyone but blacks and perhaps racial groups generally. For example, can anyone besides liberal judicial activists say with a straight face that those who enacted the equal-protection clause in 1868 had the protection of homosexuals in mind?
But even if I were to concede that the equal-protection clause applied to homosexuals, as the Court recently held in Romer, and, based on other cases, to women and aliens (and the list goes on), it would still seem absurd that it was intended to give the judiciary the power to strike down any state law which lacks a “proper governmental purpose”—without regard to the limitations actually found in the Constitution, and therefore based ultimately on nothing but the subjective politics of individual judges disguised as law.
Todd Bank
East Meadow, New York
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To the Editor:
In their article, “Federalism (Cont’d.),” David B. Rivkin, Jr. and Lee A. Casey have illuminated a position that is highly critical of federal regulation. Surely federal regulation needs to be evaluated carefully and limited to situations where it is needed. Yet their broadside attack on the constitutional basis of federal regulation, in my view, goes too far.
First, it bears noting that virtually all civil-rights legislation and the regulation under it rest on the commerce clause. The famous case of Heart of Atlanta Motel established the constitutional foundation for the 1964 Civil Rights Act. There have been few pieces of legislation in our nation’s history that have been more important in shaping attitudes and practices toward minorities. The approach of Messrs. Rivkin and Casey calls into question not only the statutes they mention but the whole host of anti-discrimination laws that are so fundamental to the modern American legal landscape. It is not realistic to think that states will substitute consistent standards in the area of civil rights for those that have evolved under federal statutes based on the commerce clause.
In addition, their approach supports, perhaps ironically, a highly activist judicial temperament. Yet members of Congress are elected; federal judges are not. For courts to take an aggressive view toward the federal commerce power, as suggested by the authors, would move them to the forefront of social policymaking. We should not want courts striking down a vast range of regulatory laws that Congress has passed.
Moreover, the authors’ reliance on the presumed original intent of the Framers raises serious methodological questions. We want to know what the Framers’ intent was when they adopted provisions of the Constitution, but why should we deem a particular historical attitude in 1787 to be the definitive basis for modern constitutional interpretation? This question opens up the entire debate about a dynamic or living Constitution versus a more static Constitution.
This is not the place fully to develop a theory and argument in favor of a living view of constitutional law. The key point is that conditions have changed since 1787. Courts in many areas of constitutional law have recognized this as they have evolved meanings for key provisions.
The authors have written a provocative piece, and that is all to the good. We do need a healthy broad debate about federal and state power.
Thomas O. Sargentich
Co-Director, Program on Law
and Government
American University
Washington, D.C.
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David B. Rivkin, Jr. and Lee A. Casey write:
We appreciate the responses to our article. David Riesman’s kind letter points out an excellent example of how the modern Supreme Court has “reinterpreted” the Constitution’s text, changing its meaning in order to strike down institutions that were unquestioned by its Framers but which are now unfashionable among the “enlightened.” That Justice Brandeis might have agreed with our analysis is both flattering and a fair gauge of how far the judiciary has come in the last 60 years. On matters of judicial restraint, Justice Brandeis, whose politics were of the liberal variety, was the Antonin Scalia of his time—or, more appropriately—the conservative Justice Scalia can fairly be characterized as the Brandeis of our own.
We obviously share Todd Bank’s concern that judges not make policy for the states in the guise of upholding the Fourteenth Amendment’s due-process and equal-protection clauses. We cannot, however, agree with his interpretation of the equal-protection clause’s reach. Although that provision was occasioned by the need to protect recently freed slaves from Reconstructed state governments, neither its text nor the evidence of its original meaning suggests that its protection was limited to the freedmen, or to their descendants. The equal-protection clause guarantees all “persons” “equal protection of the laws.” The battles, of course, are fought over what “equal protection of the laws” means.
Finally, in response to Thomas O. Sargentich, we believe that the ends cannot justify the means. Much civil-rights legislation has, indeed, been based on the commerce clause. Where racial discrimination genuinely affects interstate commerce, Congress can properly use its commerce power to correct it. A hotel’s refusal to serve black customers, for example, can impede the free flow of goods and services in interstate commerce, and congressional action is entirely appropriate. That some civil-rights legislation might not survive scrutiny under the original meaning of the commerce clause does not, and cannot, justify Congress in ignoring that meaning, and in usurping power the Constitution denied it.
More broadly, the approach we advocate—that Congress, the courts, and the President should all limit themselves to the power granted them by the Constitution and its amendments in accordance with the document’s original meaning—does not promote an “activist” judiciary. Judicial “activism” should be assessed by the quality of the judicial act—in making law as opposed to interpreting and applying it—rather than by the quantity of unconstitutional legislation invalidated. When Congress legislates in the constitutionally defined sphere of federal authority, the courts must suffer its laws, however wrongheaded they think the result. When Congress exceeds its constitutional power, the courts may not permit its legislation, regardless of how good they think the result.
The Framers purposefully eschewed an unwritten constitution subject to change by accretion and evolution over time in favor of a written constitution that can be changed only by amendment. Courts are not bound by the personal, subjective intent of the Framers, but they are bound by the meaning of the words and concepts the Framers used at the time the Constitution was written and ratified. There is no contemporary evidence—not one letter, paper, pamphlet, or broadsheet—indicating that the Constitution’s Framers and ratifiers understood it to give the judiciary the power constantly to redraft that document. The courts that have, in Mr. Sargentich’s phrase, “evolved meanings for key provisions” different from the original meaning were engaged not in a process of constitutional explication but in a quiet coup d’état.
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