Taking What They Give Us: Explaining the Court's Federalism Offensive
Whittington, Keith E., Duke Law Journal
For several years now, the Supreme Court has disquieted observers and commentators by reasserting the presence of constitutional limitations on national power resulting from the federal structure of the American political system. Although not quite amounting to a revolution in American constitutional law, the recent federalism cases are nonetheless striking. (1) They are, of course, most remarkable because they reverse over fifty years of nearly uninterrupted deference to the national government in matters relating to federalism and the structural limits on the powers of the central government. With the exception of an ill-fated attempt to identify such limits in 1976, under the guidance of then-Associate Justice William Rehnquist, (2) the post-New Deal Court had carefully refrained from giving judicial teeth to the idea that the national government was one of enumerated powers.
In recent years, the Rehnquist Court has signaled its seriousness about federalism. It has acted on the issue not once, but repeatedly, over nearly a decade. (3) Moreover, the Court has not limited its focus to a single doctrine or aspect of federalism, but rather has opened multiple fronts to be prosecuted simultaneously. (4) Perhaps most notably, the Court has even been willing to return to service an old war-horse from pre-New Deal campaigns: the Commerce Clause. (5) The Court's concern with federalism has contributed significantly to a historically unprecedented spate of federal legislation being struck down as unconstitutional. In sharp contrast to most of its predecessors, the Rehnquist Court has trained nearly as much of its activist fire on its fellow coordinate branches of the federal government as on the relatively powerless states and localities.
The Court's actions raise any number of problems and puzzles. Not least among those puzzles is the matter of explaining why the Court has taken this course. Of course, it is possible to develop a purely jurisprudential explanation that would conclude that the Court has taken these actions simply because the Constitution, properly interpreted, compelled it to do so when faced with the type of legislation at issue in these cases. Without question, the jurisprudential explanation would be complicated and controversial. (6) The text of the Constitution has not changed in regard to federalism during this period, and the statutes that the Court has examined generally have not been especially innovative. What has changed is not the Constitution or the laws, but the Court's understanding of the Constitution. If the Court has reached the correct judicial answers to these constitutional questions only recently, then it remains to be explained why this Court is willing or able to get these cases right when previous Courts were not. A jurisprudential explanation of the Court's recent federalism offensive will have to be supplemented with a political explanation. Although the political investigation need not be hostile to the jurisprudential one, this Essay will limit itself to the former.
The federalism offensive can best be understood as a product of the Court's taking advantage of a relatively favorable political environment to advance a constitutional agenda of particular concern to some individuals within the Court's conservative majority. The Court has moved carefully but steadily to reestablish some federalism-based constraints on the national government. The exercise of the power of judicial review striking down acts of Congress, and on federalism grounds no less, (7) immediately evokes images of the Lochner-era (8) Court's pitched battles with the Roosevelt administration over the New Deal and the Court's ultimate humiliation. (9) The analogy is misplaced, however. This Court is not in the same position or pursuing the same strategy as the Lochner-era Court, and it is much more likely that the Court will be able to maintain its current efforts without significant political costs. …