Separation anxiety: Congress, the courts, and the Constitution

Thank you for inviting me to be part of the important work of the American Constitution Society. I appreciate all that the Society has done, and is doing, to stand up for traditional American values like respect for human dignity, individual rights, genuine equality, and access to justice. Your voice will make an important contribution to the public debate over some of the pressing legal issues of our time.

The title of my remarks tonight is Separation Anxiety: Congress, the Courts, and the Constitution. With a nifty title like that, you may wonder if I am trying to make law review again. I enjoyed law school, and especially constitutional law, and I would love to be a law student all over again were it not for my new job. Fortunately, that job, that privilege-being a United States Senator-has kept me intimately involved with constitutional questions and values. I want to share with you a few thoughts on the current state of separation of powers in our national government.

Thirty years separate my law school experience from yours. But you, the law students of today, and I have something important in common: During our student years, we have both witnessed dramatic changes in constitutional law-the kind of changes that make the most recent edition of a constitutional law textbook obsolete, the kind of changes that undo settled understandings and put new ones in their place.

I.

In 1969, when I entered Yale Law School, America was engaged in battle on several fronts. Abroad, our commitments in Vietnam were deepening and beginning to create tremendous divisions. Here at home, the War on Poverty vied for attention and resources. Yet what I recall most vividly from this period is the great intensity and passion with which Congress, the courts, and the American people discussed and debated the meaning of racial equality. That debate forever changed our understanding of the civil rights guaranteed by the Constitution. And it led to legislative and legal developments that dramatically altered American society.

Five years before I started law school, Congress passed one of the most heroic pieces of legislation of the twentieth century: the Civil Rights Act of 1964.1 For the first time since Reconstruction, Congress had enacted a law prohibiting racial discrimination by private entities. Under Title II, a color bar could no longer separate one race from another in restaurants, theaters, motels, amusement parks, trains, buses, and taxicabs.2 Under Title VI, no recipient of federal funds, public or private, could engage in racial discrimination in any of its programs or activities.3 And under Title VII, a person could no longer be turned down for a job because she was black.4

Looking back today, it is hard to imagine that the law could have been otherwise. But when Congress adopted similar legislation in 1875, the Supreme Court struck it down. In a decision that laid the groundwork for Plessy v. Ferguson,5 the Court held that Congress had no power to establish "a code of municipal law [regulating] all private rights between man and man."6 It was not for Congress, the Court said, to enforce "social rights of men and races in the community."7 Four score and one year later, in a case that ended the Heart of Atlanta Motel's policy of refusing to rent rooms to blacks, the Court shifted gears, upholding the Civil Rights Act of 1964 as a valid exercise of congressional power.8 That decision made the Civil Rights Act a permanent fixture on the landscape of our Nation's fundamental law.

How did this change in our understanding of congressional power come about? I am sure many of you have explored this question. And one thing that we can all agree on is that the change did not occur overnight. For a few clues, we might begin by recognizing that the Civil Rights Act was not the first time in the last century that popular legislation forged a new consensus on the scope of Congress's constitutional authority.

A hundred years ago, our nation saw an unprecedented period of industrialization and economic expansion. The growth of big business and industry brought many benefits-higher incomes, more homes with plumbing and electricity, and, of course, the automobile. But it also posed many challenges, not all of which were believed to be within Congress's power to address. In 1895, when the American Sugar Refining Company bought the stock of four of its competitors, the Supreme Court held that stock purchases were beyond Congress's authority to regulate.9 In 1918, the Court struck down a law prohibiting children between the ages of fourteen and sixteen from working in mines or factories more than eight hours a day.10 And in 1935, the Court held unconstitutional an economic recovery package that, among other things, prescribed a minimum wage.11

Those decisions were all extensions of a common organizing principle-the right of "free contract"12-which the Court spared no pains to trumpet in the most prophetic terms. In the 1918 child labor case, the Court warned that if Congress were allowed to regulate the hours children could work, then "all freedom of commerce will be at an end, and the power of the states over local matters may be eliminated, and thus our system of government be practically destroyed."13