Federalism and the Double Standard of Judicial Review

By Baker, Lynn A.; Young, Ernest A. | Duke Law Journal, October 2001 | Go to article overview

Federalism and the Double Standard of Judicial Review


Baker, Lynn A., Young, Ernest A., Duke Law Journal


INTRODUCTION

From 1937 to 1995, federalism was part of a "Constitution in exile." (1) Except for the brief interlude of the National League of Cities doctrine (2)--which, like Napoleon's ill-fated return from Elba, met with crushing defeat (3)--the post-New Deal Supreme Court has been almost completely unwilling to enforce constitutional limits on national power vis-a-vis the states. (4) The reason, by all accounts, has much to do with federalism's historic link to other aspects of our expatriate constitution--e.g., economic substantive due process, legislative nondelegation--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. Lopez (5) 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 aggressive 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 process] 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 exceeded 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)

In this Article, we seek to respond to these concerns by asking whether federalism and economic substantive due process really belonged 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 standard of judicial attitude, whereby governmental economic experimentation is accorded all but carte blanche by the courts, but alleged violations of individual civil rights are given meticulous judicial attention." (11)

The very idea of double standards is problematic. As our colleague 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 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.

The question, in other words, is whether federalism belongs on the judicial desuetude side of the Court's double standard. The double standard was developed for three distinct sets of reasons: concerns about the institutional competence of courts to answer the sort of questions raised by economic substantive due process and similar doctrines; views about the necessity of judicial review in certain areas in contrast to relying on political safeguards for protection of some constitutional values; and widely held attitudes about the relative importance of personal or cultural liberties vis-a-vis economic ones. …

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