Georgetown Law Journal: Separation anxiety: Congress, the courts, and the Constitution

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Separation anxiety: Congress, the courts, and the Constitution

Clinton, Hillary Rodham

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.

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

Of course, the dire prophecy has not come to pass. Today, worker safety, the minimum wage, and the sale and purchase of stocks all have a place on Congress's legislative agenda. There is lively debate among my Senate colleagues, and among the public at large, on the kind of policies we should adopt in these areas. But there has not been much debate-at least not until recently-on whether Congress can enact the policies it chooses.

In trying to make sense of the 1937 "switch in time" at the Supreme Court,14 it is not enough to look back at the earlier years, shake our heads, and say "Boy, the Court sure did get it wrong." It is not as if the Court back then went adrift simply by missing a word or two in the Constitution. Instead, the meaning of the Constitution was being challenged and reshaped by powerful economic and social forces that our Nation had never before seen. Urbanization and industrialization conspired to make the stock market crash of 1929 an especially hard landing. And the resulting depression, together with ominous developments overseas, required a forceful national response.

The contours of that response-the proper role, shape, and size of our national government-were debated vigorously in the halls of Congress, in the White House, and among the American people themselves. The decisions of the Court during those years were an integral part of that debate. Instead of dissecting the Court's opinions for doctrinal errors, we might better understand them as cautionary voices in the national dialogue, reminding the nation of the America that once was: smaller, more agrarian, and less centralized. As the President and Congress pressed forward with a new vision of Nationhood, the Court stayed in the rear, as if to say: "The New Deal is a big deal. Are you sure this is the road you want to take? Are you really sure?"

II.

Thirty years later, the civil rights movement sparked another round of passionate constitutional dialogue. This time, the Court was not in the rear but out in front. Brown v. Board of Education15 was decided a full decade before the Civil Rights Act was passed. And although many of us now think of Brown as an unassailable expression of fundamental truth, the decision hardly commanded universal assent in the 1950s. Respected legal scholars criticized the decision for violating "neutral principles."16 Facing massive community resistance, federal courts throughout the South approached Brown with caution and, in some cases, outright defiance.17 And school districts across the country proceeded to implement Brown's mandate with "all deliberate speed,"18 prompting the Court to complain ten years after Brown that "there has been entirely too much deliberation and not enough speed."19

Given the deep entrenchment of Jim Crow, the Court could hardly have expected immediate compliance with its newly declared principle of equality. In 1954, Brown was just the opening volley in a national debate over the meaning of equal protection. That debate-pitting the Court and a growing chorus of protestors against powerful Southern judges, governors, and legislatures-could not have turned out the way it did without the participation of Congress and the executive branch. As Archibald Cox observed in 1966: "A Supreme Court decision [holding] that the [F]ourteenth [A]mendment required the keepers of places of public accommodation to serve Negroes without discrimination or segregation could never have commanded the same degree of assent as the equal public accommodations title of the Civil Rights Act of 1964."20 "In this sense," Professor Cox said, "the principle of Brown v. Board of Education became more firmly law after its incorporation into . . . the Civil Rights Act of 1964."21

The idea that Congress can, by statute, make a constitutional principle "more firmly law" does not appear in grade school textbooks or in the Constitution itself. But I think it is a fair description of what happened in the 1960s and, to some extent, in the 1930s, as well. Judge John Minor Wisdom, no minor hero in the civil rights movement, may have been too pessimistic in 1966 when he said: "The courts acting alone have failed."22 But he was correct that the struggle for civil rights could not have been won by the courts alone. By enacting the logical extension of Brown into law, Congress made Brown itself "more firmly law."

But let me add that it is also unclear whether Congress, acting alone, could have triumphed. Let us not forget that the Civil Rights Act, even with Brown as a backdrop, did not exactly pass by unanimous consent.23 To the contrary, the legislation was the subject of fierce debate in both houses of Congress and beyond.24 The record quotes one member of the House as saying: "If a department store manager wants to hire blond sales clerks, he can hire all blond sales clerks. His wife might object but the Federal Government cannot."25 One Senator worried that "if this bill were passed, . . . the America that believes in liberty rather than Government by regimentation, would be supplanted by a police state."26 A state court judge wrote in a reported opinion that compelling a white employee to provide services to a black person "is involuntary servitude."27 And a well-known scholar said that the bill expressed "a principle of unsurpassed ugliness."28 Sadly, in 1964, it was still common for prominent commentators to compare a federal ban on discrimination in business and employment to McCarthyism, communism, and even fascism.29

If the passage of the Civil Rights Act helped to make Brown "more firmly law," then the Court's 1968 ruling in Heart of Atlanta partly repaid the favor. Coming on the heels of two tragic assassinations in the same year, Heart of Atlanta secured the crowning legislative achievement of the civil rights movement with an awkward constitutional blessing: The Court held that the Civil Rights Act was a valid exercise of Congress's power to regulate commerce.30 But in doing so, the Court squarely acknowledged that Congress had enacted the statute to address "a moral and social wrong" and that the intent to address a moral and social wrong did not make Congress's enactment any less valid.31

With those words, the dialogue between Congress and the Court had come full circle: It was Congress's prerogative to safeguard social equality after all. And racial discrimination, if it is wrong, is just as wrong when perpetrated by the Heart of Atlanta Motel as it is when perpetrated by the Topeka Board of Education. The American people would soon embrace this new understanding of racial equality and congressional power. Indeed, they would embrace it so fully that we take it for granted today.

What we learn from the civil rights movement, and also from the New Deal, is that the meaning of the Constitution cannot be completely discovered by simply sitting down with the text and reading the words. Our fundamental law has shown a remarkable capacity to absorb new meanings and new commitments arising from extraordinary social, political, and economic change. Those meanings and commitments are forged from passionate dialogue and debate, vigorous dissent, and sometimes disobedience. The process is not always tidy. But the key to its legitimacy lies in the unique ways in which Congress, the courts, and the executive branch have together reflected, refined, and given expression to the fundamental principles that the American people wish to make "more firmly law."32

III.

With this history in mind, what are we to make of the dramatic revisions of constitutional law happening today, during your law school years? Because we do not yet have the benefit of hindsight, it may be too early to tell. But what we have seen in recent years gives me pause. It is tempting to believe that the body politic cannot help but scratch a thirty-year itch for constitutional change. But the fact is that the body politic has played no significant role in the changes afoot today. Those changes have come directly from the courts in a series of rulings that have effectively worked to exclude the body politic from the ongoing search for constitutional meaning.

The Court decisions to which I am referring have been handed down so recently that most Americans have had little opportunity to step back and take stock of what has happened. But let me try to offer a quick summary. No fewer than seven times in the last seven Terms, the Supreme Court has invalidated part of a federal statute on the ground that Congress exceeded its power to regulate commerce, its power to enforce the Fourteenth Amendment, or its inherent power within our system of "dual sovereignty."33 Those statutes include the Gun-Free School Zones Act,34 the Religious Freedom Restoration Act,35 the Brady Handgun Violence Prevention Act,36 the Trademark Remedy Clarification Act,37 the Age Discrimination in Employment Act,38 the Violence Against Women Act,39 and the Americans with Disabilities Act.40

These cases take up hundreds of pages of the U.S. Reports, and I will not pretend to be an expert on their doctrinal details. But let me share a few thoughts on why I find their trajectory a cause for concern.

First, it is important to put the Court's recent activity into historical perspective. United States v. Lopez, the 1995 case that said that Congress cannot make it a crime to knowingly possess a gun within 1,000 feet of a school,41 was the first time in sixty years that the Court had imposed a substantive limit on what Congress can and cannot do under the Commerce Clause. Echoing a prophecy stated in an earlier era, the Court warned that if the law were upheld, then "there never will be a distinction between what is truly national and what is truly local."42

Five years later, in United States v. Morrison, the Court held that Congress had no power to give Christy Brzonkala, a Virginia college student raped by two of her classmates, a federal civil remedy for gender-motivated violence.43 Morrison was decided during the same Term as Kimel v. Florida Board of Regents, which held that state employers guilty of age discrimination cannot be sued for damages in federal court, despite a federal statute that says they can.44 Building on Kimel, the Court in Trustees of the University of Alabama v. Garrett held that state employees wronged by discrimination based on disability cannot sue their employers for damages in federal court, even though the Americans with Disabilities Act says they can.45 This trio of decisions-Morrison, Kimel, and Garrett-represents the first time since Reconstruction that the Court has limited Congress's power to combat discrimination.46 And it remains unclear just how far the Court will go.47

Beyond the damage that these cases do to civil rights, and the fact that they upset settled understandings of congressional power, what is troubling about them is that they do not occur at a time in our Nation's history when there is a significant public clamor for a different constitutional vision. To be sure, there has been a general tendency in recent decades in favor of a smaller role for national government, although many have rethought such notions in the wake of September 11th.48 But more importantly, the recently invalidated statutes themselves provide compelling evidence that the American people are not the true wizards behind the Court's velvet curtain.

The Gun-Free School Zones Act passed the House by a vote of 313 to 1; it cleared the Senate by unanimous consent.49 The Violence Against Women Act was part of a bill that passed the Senate 95 to 4; in the House, 421 Members voted for the Act and not a single Member voted against it.50 The Age Discrimination in Employment Act passed the House 381 to 38 and cleared the Senate by a vote of 93 to 5.51 Finally, the Americans with Disabilities Act-heralded as a model of bipartisan legislation-passed the House 403 to 20 and passed the Senate 76 to 8.52

But even more astounding than the Court's willingness to override commonsense legislation with such broad support is its eagerness to do so in terms which are deliberately designed to exclude Congress-and by extension, the American people-from playing a part in defining what the Constitution requires and what it permits.53 The recent cases do not pretend to be opening arguments in a longer debate. Instead, they are self-conscious pronouncements asserting the Court's authority to be the sole and final arbiter of constitutional meaning.54 More and more, it seems, Congress and the American people, by extension, are regarded by the Court as mere targets of judicial discipline, unable to live and govern themselves within "judicially enforceable outer limits."55

The Court may have the final say on constitutional interpretation, but I do not see any reason why it should have the only say.56 The current Court's palpable distrust of Congress stands in sharp contrast to the Framers' faith in the ability of the political process to distribute power and restrain its exercise. As the Court itself observed fewer than two decades ago, "the Framers chose to rely on a federal system in which special restraints on federal power over the States inhered principally in the workings of the National Government itself, rather than in discrete limitations on the objects of federal authority."57 Indeed, James Madison noted that the composition of my institutional home, the United States Senate, is "at once a constitutional recognition of the portion of sovereignty remaining in the individual States, and an instrument for preserving that residuary sovereignty."58 Echoing Madison, the Court, speaking through Justice Blackmun, has said that "[s]tate sovereign interests . . . are more properly protected by procedural safeguards inherent in the structure of the federal system than by judicially created limitations on federal power."59

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.

IV.

Let me conclude tonight with a call to action on two fronts. First, what we see happening in the courts today underscores how important it is that we in the Senate diligently exercise our constitutional duty to scrutinize judicial nominees-including nominees to the lower federal courts. Let us not forget that cases like Lopez and Morrison affirmed the decisions of lower-court judges who laid the groundwork for the dramatic shifts in doctrine we see today.72 I applaud the efforts of my colleagues on the Senate Judiciary Committee who have done the hard work of ensuring that our federal judges are fair, disciplined, and faithful to the law. The nominations process is an important form of national dialogue on the relationship between Congress and the courts. And for each nominee, it is crucial that the Senate discharge its duty to "advise" before it "consents."73

Second, and even more important, it is imperative that you-the future lawyers, judges, legislators, and policymakers of our Nation-stay engaged and stay involved in the great constitutional issues of our day. It is easy to become disenchanted, even cynical, with some of the recent developments in American law and politics. But as Eleanor Roosevelt once said, it is always better to light one candle than to curse the darkness. If each and every one of you make the commitment to light one candle, then together you will make America glow with the promise of liberty and equality guaranteed by our fundamental law. Together you will forge a constitutional vision sanctioned by the American people and worthy of our Nation's greatest ideals.

May your future be bright, and may your passion for justice be a flame that never dies.

1. Pub. L. No. 88-352, 78 Stat. 241 (1964) (codified as amended at 42 U.S.C. [sec] 2000 (2000)).

2. Pub. L. No. 88-352, 78 Stat. 241 (1964) (codified as amended at 42 U.S.C. [sec] 2000a (2000)).

3. Pub. L. No. 88-352, 78 Stat. 241 (1964) (codified as amended at 42 U.S.C. [sec] 2000d (2000)).

4. 42 U.S.C. [sec] 2000e-2 (2000).

5. 163 U.S. 537 (1896).

6. The Civil Rights Cases, 109 U.S. 3, 13 (1883).

7. Id. at 22; see also id. at 24-25 ("It would be running the slavery argument into the ground to make it apply to every act of discrimination which a person may see fit to make as to the guests he will entertain, or as to the people he will take into his coach or cab or car, or admit to his concert or theater, or deal with in other matters of intercourse or business.").

8. Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 258 (1964).

9. United States v. E.C. Knight Co., 156 U.S. 1, 18 (1895).

10. Hammer v. Dagenhart, 247 U.S. 251, 277 (1918).

11. A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 550 (1935).

12. Lochner v. New York, 198 U.S. 45, 62 (1905).

13. Hammer, 247 U.S. at 276.

14. Compare United States v. Darby, 312 U.S. 100, 117, 125-26 (1941) (upholding wage and hour requirements of Fair Labor Standards Act and overruling Hammer), Wickard v. Filburn, 317 U.S. 111, 130 (1942) (upholding quota for wheat production in Agricultural Adjustment Act), NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 49 (1937) (upholding National Labor Relations Act provisions establishing comprehensive system for regulating labor-management relations), and W. Coast Hotel Co. v. Parrish, 300 U.S. 379, 400 (1937) (upholding state minimum wage statute), with Carter v. Carter Coal Co., 298 U.S. 238, 316 (1936) (invalidating local system of establishing minimum prices, setting wage and hour requirements, and enforcing collective bargaining agreements pursuant to Bituminous Coal Conservation Act), A.L.A. Schechter Poultry Corp., 295 U.S. at 550-51 (invalidating "codes of fair competition" established in National Industrial Recovery Act), and Hammer, 247 U.S. at 277 (invalidating child labor laws).

15. 347 U.S. 483 (1954).

16. Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1, 34 (1959) (questioning whether in "a situation where the state must practically choose between denying the association to those individuals who wish it or imposing it on those who would avoid it, [there is] a basis in neutral principles for holding that the Constitution demands that the claims for association should prevail").

17. See, e.g., Stell v. Savannah-Chatman County Bd. of Educ., 220 F. Supp. 667, 684 (S.D. Ga. 1963) (holding Brown inapplicable based on factual finding that "Plaintiffs' assumption of injury to Negro students by the continuance of segregated schools is not supported by any evidence in this case"), rev'd, 333 F.2d 55 (5th Cir. 1964); Briggs v. Elliott, 132 F. Supp. 776, 777 (E.D.S.C. 1955) (holding that Brown does not require "the states [to] mix persons of different races in the schools" and that the "Constitution . . . does not require integration").

18. Brown v. Bd. of Educ., 349 U.S. 294, 301 (1955).

19. Griffin v. County Sch. Bd., 377 U.S. 218, 229 (1964). In 1964, ten years after Brown, only 2.25% of black children in the eleven southern states went to desegregated schools. See James R. Dunn, Title VI, the Guidelines and School Desegregation in the South, 53 VA. L. REV. 42, 44 n.9 (1967).

20. Archibald Cox, The Supreme Court, 1966 Term-Foreword: Constitutional Adjudication and the Promotion of Human Rights, 80 HARV. L. REV. 91, 94 (1966).

21. Id. (emphasis added). The discussion that follows relies heavily on the superb analysis in Robert C. Post & Reva B. Siegel, Essay, Equal Protection by Law: Federal Antidiscrimination Legislation After Morrison and Kimel, 110 YALE L.J. 441, 515-22 (2000).

22. United States v. Jefferson County Bd. of Educ., 372 F.2d 836, 847 (5th Cir. 1966) (emphases omitted).

23. The Civil Rights Act passed the House by a vote of 290 to 130, with 104 of the dissenters being southern Democrats. See LUCAS A. POWE, JR., THE WARREN COURT AND AMERICAN POLITICS 232 (2000). In the Senate, the Act eventually passed by a vote of 79 to 18, but not before an 82-day filibuster by southern Senators taking up "63,000 pages of the Congressional Record." Id. at 233.

24. Disquieting excerpts from the legislative history are summarized in Post & Siegel, supra note 21, at 492-93 & nn.240-48.

25. 2 STATUTORY HISTORY OF THE UNITED STATES 1132 (Bernard Schwartz ed., 1970) (statement of Rep. Abernethy).

26. Id. at 1293 (statement of Sen. Ervin).

27. Browning v. Slenderella Sys., 341 P.2d 859, 869 (Wash. 1959) (Mallery, J., dissenting).

28. Robert Bork, Civil Rights-A Challenge, NEW REPUBLIC, Aug. 31, 1963, at 22.

29. See Post & Siegel, supra note 21, at 492-93.

30. See Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 258 (1964).

31. Id. at 257.

32. See generally 1 BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991); Larry D. Kramer, The Supreme Court, 2000 Term-Foreword: We the Court, 115 HARV. L. REV. 4 (2001); Post & Siegel, supra note 21, at 513-22. "The Court's authority to interpret the Equal Protection Clause thus depends on more than a mastery of complex precedents or an insularity from political passions. It rests on a special kind of socially situated judgment, a capacity to discern shifts in the ways Americans understand the practices and institutions that organize American life, and an ability to speak from and to those evolving and contested understandings." Id. at 515.

33. More broadly, the Supreme Court has invalidated over twenty-six federal laws since 1995, a remarkable number in light of the fact that the Court struck down only 127 federal laws during the first 200 years after ratification of the Constitution. See Seth P. Waxman, Defending Congress, 79 N.C. L. REV. 1073, 1074 (2001).

34. See United States v. Lopez, 514 U.S. 549, 551 (1995).

35. See City of Boerne v. Flores, 521 U.S. 507, 511 (1997).

36. See Printz v. United States, 521 U.S. 898, 933 (1997); see also id. at 926 (relying on New York v. United States, 505 U.S. 144 (1992)).

37. See Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 691 (1999); Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 630 (1999).

38. See Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 67 (2000).

39. See United States v. Morrison, 529 U.S. 598, 602 (2000).

40. See Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 360 (2001).

41. See Lopez, 514 U.S. at 567 ("The possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce.").

42. Id. at 567-68.

43. See Morrison, 529 U.S. at 627 ("Petitioner Brzonkala's complaint alleges that she was the victim of a brutal assault. But Congress' effort . . . to provide a federal civil remedy can be sustained neither under the Commerce Clause nor under [sec] 5 of the Fourteenth Amendment.").

44. See Kimel, 528 U.S. at 82-83 ("[W]e conclude that the [Age Discrimination in Employment Act] is not 'appropriate legislation' under [sec] 5 of the Fourteenth Amendment.").

45. See Garrett, 531 U.S. at 374 ("[T]o uphold the [Americans with Disabilities] Act's application to the States would allow Congress to rewrite the Fourteenth Amendment law laid down by this Court . . . .").

46. See Post & Siegel, supra note 21, at 443.

47. See Hibbs v. Dep't of Human Res., 273 F.3d 844, 858-59 (9th Cir. 2001) (holding that Family and Medical Leave Act of 1993 was enacted pursuant to valid exercise of Congress's power to remedy continuing effects of past unconstitutional gender discrimination), cert. granted sub nom. Nev. Dep't of Human Resources v. Hibbs, 122 S. Ct. 2618 (2002) (argued Jan. 15, 2003).

48. Cf. Linda Greenhouse, Will the Court Reassert National Authority?, N.Y. TIMES, Sept. 30, 2001, at D14.

49. See 136 CONG. REC. H13,296 (Oct. 27, 1990); 136 CONG. REC. S17,595-607 (Oct. 27, 1990).

50. See 139 CONG. REC. H10,404-05 (Nov. 20, 1993); 139 CONG. REC. S16,301 (Nov. 19, 1993).

51. See 137 CONG. REC. H9557 (Nov. 7, 1991); 137 CONG. REC. S15,445-512 (Oct. 30, 1991).

52. See 136 CONG. REC. H2599, H2638 (May 22, 1990); 135 CONG. REC. S10,732, S10,803 (Sept. 7, 1989). A telling barometer of the bipartisan support for the ADA is the fact that President George Bush filed an amicus brief in Garrett in favor of upholding the ADA's full applicability to the states. See Charles Lane, Court Limits Scope of ADA; Decision Curtails Disabled State Employees' Ability to Sue, WASH. POST, Feb. 22, 2001, at A8.

53. See, e.g., City of Boerne v. Flores, 521 U.S. 507, 536 (1997) ("When the Court has interpreted the Constitution, it has acted within the province of the Judicial Branch, which embraces the duty to say what the law is. Marbury v. Madison, [5 U.S. (1 Cranch) 137, 177 (1803)]. When the political branches of the Government act against the background of a judicial interpretation of the Constitution already issued, it must be understood that in later cases and controversies the Court will treat its precedents with the respect due them under settled principles, including stare decisis, and contrary expectations must be disappointed."). But see Kramer, supra note 32, at 5-6 ("Marbury staked out a considerably more modest position, venturing only that it was proper for the Court to interpret the Constitution without in any way suggesting that its interpretations were superior to those of the other branches."); id. at 84-90 (arguing that Marbury simply endorsed a "departmental" or "coordinate" theory of review whereby each branch may express its views on constitutional issues, with none being final or authoritative).

54. See Kramer, supra note 32, at 14 ("The Rehnquist Court no longer views itself as first among equals, but has instead staked its claim to being the only institution empowered to speak with authority when it comes to the meaning of the Constitution.").

55. United States v. Lopez, 514 U.S. 549, 566 (1995). The current Court's palpable distrust of Congress stands in sharp contrast to the Framers' faith in the ability of the political process to distribute power and restrain its exercise. As the Court itself observed fewer than two decades ago, "the Framers chose to rely on a federal system in which special restraints on federal power over the States inhered principally in the workings of the National Government itself, rather than in discrete limitations on the objects of federal authority." Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 552 (1985).

56. See Kramer, supra note 32, at 13 ("There is . . . a world of difference between having the last word and having the only word: between judicial supremacy and judicial sovereignty. We may choose to accept judicial supremacy, because we need someone to settle certain constitutional questions and, for a variety of historical and jurisprudential reasons, the Supreme Court seems like our best option. But it does not follow either that the Court must wield its authority over every question or that, when it does, the Court can dismiss or too quickly supplant the views of other, more democratic institutions.").

57. Garcia, 469 U.S. at 552.

58. THE FEDERALIST No. 62, at 408 (James Madison) (B. Wright ed., 1961); see also THE FEDERALIST No. 46, at 332 (James Madison) (B. Wright ed., 1961) (asserting that federal government, given its constitutional structure, "will partake sufficiently of the spirit" of the states and will "be disinclined to invade the rights of the individual States, or the prerogatives of their governments").

59. Garcia, 469 U.S. at 552.

60. U.S. CONST. art. I, [sec] 8, cl. 3.

61. U.S. CONST. amend. XIV, [sec] 5.

62. See Kramer, supra note 32, at 129 ("[W]hat Congress thinks about the Constitution carries no formal legal weight in the eyes of the Rehnquist Court, and has only so much practical weight as the Justices think it deserves (which typically turns out to be not much).").

63. United States v. Lopez, 514 U.S. 549, 559 (1995).

64. Id. at 567-68.

65. City of Boerne v. Flores, 521 U.S. 507, 520 (1997). For a persuasive critique of the Court's new tailoring requirements under Section 5, see Evan H. Caminker, "Appropriate" Means-Ends Constraints on Section 5 Powers, 53 STAN. L. REV. 1127 (2001).

66. Compare, e.g., U.S. CONST. amend. XI ("The judicial power of the United States shall not . . . extend to any suit . . . against one of the United States by citizens of another state . . . ."), with Federal Maritime Comm'n v. S.C. State Ports Auth., 122 S. Ct. 1864, 1867-68 (2002) (holding that Eleventh Amendment bars executive branch agency from adjudicating complaint for damages against nonconsenting state by citizen of same state), Alden v. Maine, 527 U.S. 706, 712 (1999) (holding that Eleventh Amendment bars federal claim for damages by in-state citizen against nonconsenting state in state court), and Seminole Tribe v. Florida, 517 U.S. 44, 47 (1996) (holding that Eleventh Amendment bars federal suit for damages against nonconsenting state despite express authorization by Congress pursuant to Article I); cf. Nina Totenberg, States Rights (NPR radio broadcast, May 28, 2002) (reporting criticism of Court's Eleventh Amendment jurisprudence from scholars across the ideological spectrum).

67. See, e.g., Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 561-66 (2001) (striking down state restrictions on tobacco advertising as infringement on commercial speech rights); Phillips v. Washington Legal Found., 524 U.S. 156, 160, 167-69, 172 (1998) (finding interest earned on client funds required by state law to be held in special accounts funding legal aid to be "private property" of client for Taking Clause purposes, even though such funds would not earn interest for client absent the state law); Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1019, 1027 (1992) (restricting scope of state prerogative to regulate land use under Takings Clause).

68. See, e.g., Boy Scouts of Am. v. Dale, 530 U.S. 640, 644 (2000) (applying First Amendment associational rights principle to invalidate state civil rights statute prohibiting Boy Scouts from excluding homosexuals); City of Richmond v. J.A. Croson Co., 488 U.S. 469, 486, 499-500, 506-08 (1989) (invalidating local minority contracting set-aside program under Equal Protection Clause).

69. See, e.g., Hoffman Plastic Compounds, Inc. v. NLRB, 122 S. Ct. 1275, 1283 (2002) (reversing NLRB order requiring backpay to be paid by employer who, without knowledge that employee was an illegal immigrant, unlawfully terminated employee for organizing a union); Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 600 (2001) (limiting "prevailing party" entitled to attorneys' fees under various civil rights statutes to a party who has secured judgment on merits or court-ordered consent decree); Alexander v. Sandoval, 532 U.S. 275, 285-86 (2001) (finding no private right of action to enforce Title VI regulations prohibiting disparate impact discrimination); Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 109, 119 (2001) (finding form employment contracts requiring arbitration of employment discrimination claims enforceable under federal law).

70. William E. Forbath, The New Deal Constitution in Exile, 51 DUKE L.J. 165 (2001).

71. Jed Rubenfeld, The Anti-Antidiscrimination Agenda, 111 YALE L.J. 1141 (2002).

72. See Brzonkala v. Va. Polytechnic Inst. & State Univ., 169 F.3d 820 (4th Cir. 1999) (en banc), aff'd sub nom. United States v. Morrison, 529 U.S. 598 (2000); United States v. Lopez, 2 F.3d 1342 (5th Cir. 1993), aff'd, 514 U.S. 549 (1995). The Supreme Court has seen fit to rein in some of the most activist lower-court decisions. See, e.g., Am. Trucking Ass'ns, Inc. v. EPA, 175 F.3d 1027, 1033 (D.C. Cir. 1999) (reviving nondelegation doctrine to invalidate clean air standards), rev'd in relevant part sub nom. Whitman v. Am. Trucking Ass'ns, 531 U.S. 457 (2001); Dickerson v. United States, 166 F.3d 667, 671 (4th Cir. 1999) (holding that Miranda is not a rule of constitutional law), rev'd, 530 U.S. 428 (2000). But additional cases continue to test the limits. See, e.g., United States v. Emerson, 270 F.3d 203, 227-29 (5th Cir. 2001) (agreeing with district court that Second Amendment confers an individual right to bear arms, notwithstanding contrary indications in United States v. Miller, 307 U.S. 174, 178 (1939)).

73. See U.S. CONST. art. II, [sec] 2, cl. 2.

* United States Senator (D-New York). J.D., Yale Law School, 1973; B.A., Wellesley College, 1969. These Remarks were delivered on March 12, 2002, at the Georgetown University Law Center and sponsored by the Georgetown student chapter of the American Constitution Society (ACS). The author thanks Judy Areen and John Podesta for their dedication to the work of ACS and the Georgetown law students in its membership. The author also thanks Peter Rubin, founding President of ACS, and David Halperin, Executive Director of ACS, for their exceptional leadership in guiding ACS to its meteoric rise over the past four years.

** O'Melveny & Myers LLP, Washington, D.C. Former law clerk to Justice Ruth Bader Ginsburg, U.S. Supreme Court, October Term 2000. J.D., Yale Law School, 1998; M.A., Oxford University, 1993; B.S., Stanford University, 1991.