The Federalism Decisions of Justices Rehnquist and O'Connor: Is Half a Loaf Enough?
Epstein, Richard A., Stanford Law Review
INTRODUCTION: FROM THE OLD TO THE NEW SYNTHESIS I. THE BASIC SCOPE OF THE COMMERCE CLAUSE II. DUAL SOVEREIGNTY AND THE TENTH AMENDMENT III. STATE SOVEREIGN IMMUNITY A. Background B. The Eleventh Amendment C. The Bill of Rights and the Fourteenth Amendment 1. The Takings and Equal Protection Clauses as limitations on state sovereign immunity 2. Recent cases CONCLUSION
INTRODUCTION: FROM THE OLD TO THE NEW SYNTHESIS
In many ways the basic structure of constitutional law circa 2006--which features a strong national government of unlimited authority and weak protection of economic liberties and property rights--derives from the New Deal synthesis circa 1937. That synthesis insists that an extensive national role in the regulation of economic affairs is an indispensable tool for social progress. For the better part of fifty years that synthesis dominated both judicial and academic writing on American federalism. One of the great transformations that took place during the critical Chief Justiceship of William H. Rehnquist involved a systematic and prolonged challenge of that worldview. I have little doubt that many contributors to this Symposium will be critical of the efforts of Chief Justice Rehnquist and Justice O'Connor to "turn back the clock" on this critical question of federalism. My thesis is the precise opposite. I praise the two Justices for breaking the intellectual logjam on so critical an issue. Yet, at the same time, I take the view that on many key questions of federalism they should have pushed harder and moved farther than they ultimately did. I defend that thesis with respect to three critical areas of law: the scope of the Commerce Clause, dual sovereignty and the Tenth Amendment, and the doctrine of sovereign immunity.
To set the stage ever so briefly, during the first third of the twentieth century, members of the American left wing--then represented by the Progressive movement--were outsiders to American constitutional law, looking in. (1) Its intellectual leaders, such as Louis Brandeis and Felix Frankfurter, railed against the Old Court for its retrograde resistance to modern social legislation, chiefly (but not exclusively) as it related to big business and the labor markets. (2) Their intellectual and political campaign met with continuing success, culminating in a major shift in judicial worldview during the 1936-1937 Term on two recurrent and interlocking constitutional issues: the structural questions of federalism and the protection of economic liberties and private property. After the campaign's brief hiatus during the Vinson Court (1946-1953), the Warren Court (1953-1969) did much to consolidate and expand the early New Deal victories. Its work was carried forward in relative quiet through much of the Burger Court (1969-1986)--a Court which proved more innovative on other fronts. (3) The Rehnquist Court (1986-2005), which has now drawn to a close, made inroads on the New Deal synthesis on both federalism and property rights. On the federalism side, it helped make debate over the scope of the commerce power a live issue, and it sought to breathe new life into the Tenth Amendment and the doctrine of sovereign immunity. On questions of property rights, Chief Justice Rehnquist, Justice O'Connor, and other members of the conservative bloc questioned the view that the Takings Clause of the Constitution places no barriers to the ability of either Congress or the states to impose whatever forms of regulation on land use development that public officials see fit. (4)
In this Article I shall only address the federalism issues, but my silence on economic liberties issues should not be read as agreement with the 1937 revolution or with the Court's subsequent treatment of property rights.
It is important to recall that the great achievement of the Progressives and their followers was to sweep away all constitutional obstacles to the implementation of their political and social agenda--an agenda which championed comprehensive regulation of business and property at both the federal and state levels. …