States’ Right Rulings: A Tempest in a Constitutional Teapot

On June 27, the U.S. Supreme Court ended its term with astonishing eclat. Public attention focused on two opinions that addressed rather abstract questions of government structure. This was unusual: Ordinarily, controversy attaches cases that involve individual rights, like affirmative action or abortion.

The first of these opinions was Printz vs. United States. Issued dramatically on the last day of the term, Printz struck down provisions in the Brady Handgun Violence Prevention Act that required state law enforcement officers to conduct background checks on gun purchasers. Split 5-4, the court ruled that the federal government could not require state officials to “minister or enforce a federal regulatory program.” The strongly worded dissent of the four “liberal” justices--John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer--sharply contradicted the reasoning and conclusion of the majority. “Neither explicitly nor implicitly did the Framers issue any command that forbids Congress from imposing federal duties on . . . local officials.”

Legal observers were quick to seize upon Printz as portending important limitations on federal power. And it is quite true that at least five conservative justices have consolidated into a bloc determined to reaffirm the cause of states’ rights. They have, for some time now, pushed through a steady pulse of decisions increasing state sovereign immunity and trimming back the power of the federal government. Yet, these decisions have, in fact, merely nibbled at the edges of a concededly vast and practically overwhelming federal authority.

That is why Printz occasioned only a muted, low-key response from Capitol Hill. There was a time in U.S. history when questions of federalism were supremely controversial. Indeed, conservative decisions restricting federal power were one of the primary reasons why President Franklin D. Roosevelt sought unsuccessfully to pack the Supreme Court in 1937. But that time is now long past.

Federal politicians understand that, in today’s world, the finding in Printz is largely symbolic. Even Justice Sandra Day O’Connor, the majority’s fifth vote, stated explicitly that the decision “does not spell the end of the objective of the Brady Act,” because Congress could easily circumvent the impact of the court’s restrictions. Congress could, for example, have federal officials conduct background checks for handguns, or it could even require state officials to conduct these background checks as a precondition for the receipt of federal grants. The court, as Sen. Edward M. Kennedy (D-Mass.) remarked, “only grazed the Brady law.”

The court’s fierce division in Printz left the daily realities of the federal government virtually untouched. The decision generated intense ideological heat, but little practical fire. Given the brute and inescapable scope of contemporary federal administration, the result could hardly be otherwise.

The second opinion that stirred public controversy was Boerne vs. Flores. In Boerne, a city had applied an historic preservation ordinance to prevent a small Roman Catholic church from expanding. The archbishop of San Antonio sued, alleging this was illegal under the Religious Freedom Restoration Act (RFRA). In deciding the case, the Supreme Court ruled that RFRA was unconstitutional.

Whereas the debate about Printz was largely academic, the imbroglio over Boerne engulfed the nation. The decision was branded by religious leaders as “one of the worst mistakes this court has ever made, comparable to rulings that allowed slaves to be treated as property and that approved the World War II imprisonment of Americans of Japanese descent.” But bitter though these charges are, the dispute over Boerne, as with Printz, contains less than meets the eye.

Boerne was attacked as if it suppressed individual rights of religious freedom, yet this is not quite accurate. In 1990, the Supreme Court had decided Dept. of Human Resources of Oregon vs. Smith, which held that the right of free exercise of religion did not require that neutral, generally applicable laws be subject to rigorous constitutional scrutiny, even if they greatly burdened the ability of some to practice their religion. Three years later, Congress passed RFRA, which prohibited all such results, unless it could be demonstrated that they served a compelling government interest and were the least restrictive means of furthering that interest. Congress claimed the authority to enact RFRA under Section 5 of the 14th Amendment, which gives Congress the power “to enforce, by appropriate legislation” rights protected by the amendment against infringements by the states. All agree that the free exercise of religion is one such right.

In Boerne, the court held that the 14th Amendment gave Congress the power to enforce constitutional rights, but not the power to define the nature of those rights. The court found RFRA unconstitutional because the statute formulated the right of free exercise in a way that contradicted the court’s decision in Smith. The court showed little disagreement on the basic point that Congress could not redefine a right that it had sought to enforce under Section 5. Seven justices explicitly endorsed this conclusion, while the two remaining justices refused even to consider the question, preferring instead to advocate that Smith itself be reconsidered and overruled.

In essence, therefore, Bourne turns on questions involving the separation of powers rather than individual rights. At issue is whether Congress or the court can have the last word on the meaning of the Constitution. Sen. Orrin Hatch (R-Utah) was thus right to observe that, “The Supreme Court has thrown down the gauntlet.”

Yet, that gauntlet had actually been thrown down long ago. Though our democratic forms of government are the most venerable in the world, we have, from the very outset, accepted the institution of judicial review by which popular enactments of the legislature can be nullified by a majority of unelected justices. That institution rests squarely upon the premise articulated by Chief Justice John Marshall in 1803: “It is emphatically the province and the duty of the judicial department to say what the law is.”

Boerne is contentious in part because, in contrast to the Brady Act, there is no obvious method, short of constitutional amendment, by which that RFRA can be salvaged. But Boerne is more deeply unsettling because it so baldly restates the premise of judicial review. Though this premise was not controversial among the justices, it seemed to be for the nation, forcing us to ponder, yet again, the democratically anomalous implications of a structure of enforceable constitutional law.

As Justice Anthony M. Kennedy wrote in his opinion for the court, “If Congress could define its own powers by altering the 14th Amendment’s meaning, no longer would the Constitution be ‘superior paramount law, unchangeable by ordinary means.’ ”