Separation anxiety: Congress, the courts, and the Constitution

When the Constitution says that Congress shall have power "to regulate commerce . . . among the several States,"60 does that not suggest that Congress has some role in determining what counts as interstate commerce? When the Constitution says that Congress shall have power to enforce the Equal Protection Clause,61 does that not suggest that Congress has some role in determining what "equal protection" means-or at least some role in determining how "equal protection," as defined by the Court, should be enforced? The Court's recent opinions seem to say no. In the eyes of the Court, whatever Congress may think the Constitution permits or requires does not seem to count for much.62

The net result is that Congress is now left to navigate a doctrinal minefield of magic words. The next time I consider a bill to protect endangered species, should I ask whether spotted owls "substantially affect interstate commerce"63? The next time I consider school safety legislation, should I wonder whether school safety is "truly national" or "truly local"64? And as I work on hate crimes legislation or a bill to ban workplace discrimination based on sexual orientation, how can I be sure it is a "congruen[t] and proportional" response to a constitutional wrong before I hear the answer from the other side of Constitution Avenue?65

These questions begin to give you some idea of the anxiety I feel about the Court's unilateral effort to redefine the separation of powers in our national government. Beyond raising new questions about the constitutionality of substantive legislation, the Court has sought to minimize the significance of Congress's views on those very constitutional questions.

One would like to believe that the imperial tendencies of the current Court reflect at least a coherent, even if undemocratic and ahistorical, theory of the proper balance between state and federal power. To be sure, part of the Court's new federalism seems to have an inexorable logic of its own, however unfaithful to constitutional text, structure, and history it may be.66 But the Court's eagerness to defend state and local prerogatives-in addition to being misguided on its own terms-is also disturbingly selective. The inconsistency is conspicuous in various areas of economic regulation,67 and especially in the area of civil rights.68 These cases appear to reflect a more general pattern of solicitude for economic freedom together with indifference or even hostility toward civil rights.69 One commentator has described this trend as "The New Deal Constitution in Exile,"70 while another has remarked that the current Court's primary preoccupation is not with federalism, but simply with a politically conservative "anti-antidiscrimination agenda."71

I cannot say for sure what is motivating this aggressive project of judicial second-guessing, but it is certainly not the will of the American people. Maybe it is the Court's own anxiety about its place in our evolving idea of Nationhood that explains its felt need to assert that "when it comes to the Constitution, we are the ones in charge." But at the end of the day, as I look through the lens of our Nation's history, it is clear to me that "We the People" must be the ones in charge. It is up to the American people to decide whether the Court's recent adventures in revisionism will fade away or endure.