Monday, July 16, 2012

Enumerated Powers, Political Safeguards and Enumerated Rights

By Mike Dorf


The joint dissent in the ACA case begins by framing the discussion around a distinction between difficult questions--the particular ones posed by the facts and arguments--and an easy question: Whether there are any judicially enforceable limits on Congress's affirmative powers.  As to the latter, the joint dissent states: 
"Whatever may be the conceptual limits upon the Commerce Clause and upon the power to tax and spend, they cannot be such as will enable the Federal Government to regulate all private conduct and to compel the States to function as administrators of federal programs."
That's fair enough, but nowhere does the joint dissent directly address a subsidiary question: Are the courts the proper institution to enforce the limits on the scope of Congress's enumerated powers?  Well, one might say, that's because the Court has long enforced such limits.  As the joint dissent says, "innumberable cases" affirm the principle of limits on the power of Congress, and precisely because those are cases, they necessarily imply that the courts have a role to play in enforcing the limits.


Yet not all that long ago--in 1985 in the Garcia case--a majority opinion of the Supreme Court endorsed the view, advanced first by the late Herbert Wechsler and also by Jesse Choper and later Larry Kramer, that the limits on the powers of Congress are for Congress itself to note and observe.  In Wechsler's phrase, there are "political safeguards" built into our federal system that ensure that the interests of states will be represented in the national government.  Wechsler pointed to the Electoral College, to equal suffrage in the Senate, and to the drawing of House districts within states as examples of such safeguards.  Kramer later emphasized how political parties coordinate policy between federal and state officials.  Thus, when Republicans successfully campaigned in the 1994 and 2010 midterms on the principle that the federal government was intruding into domains of state regulatory primacy, they were vindicating the "political safeguards" theory.


To be sure, the political safeguards theory never sat well with conservatives, who dissented in Garcia.  Moreover, although Garcia itself has not been formally overruled, Rehnquist Court decisions of the 1990s and early 2000s clearly rejected the political safeguards theory.  For the current and most recent generations of conservatives, the fact that Congress has incentives to protect states' rights is not a sufficient reason for the courts to leave Congress to police itself on those occasions when it arguably invades states' rights.  Here is the analogy that Justice Powell drew in a footnote in his Garcia dissent:
"One can hardly imagine this Court saying that, because Congress is composed of individuals, individual rights guaranteed by the Bill of Rights are amply protected by the political process. Yet the position adopted today is indistinguishable in principle. The Tenth Amendment also is an essential part of the Bill of Rights."
That analogy is suggestive because, of course, the Bill of Rights has something to say about enumeration of individual rights as well.  The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."  Although modern cases only rarely invoke the Ninth Amendment, it is a powerful companion to the principle stated in the Tenth Amendment.  The Ninth says that there are unenumerated rights of the people, while the Tenth says that there are some powers that are not given to Congress.


We then have the further question of whether the unenumerated rights and/or the limits on the enumerated powers of Congress should be enforced by the courts.  There are three possibilities.


1) Judicially enforce both the limits on the enumerated powers and the unenumerated rights.  Justice Powell took this position in his Garcia dissent and it is the official position of the Court's doctrines as a whole.   But perhaps just barely.  The liberals say they accept that there are judicially enforceable limits on the enumerated powers of Congress, but the ACA dissenters (and CJ Roberts on this point) are right that they have difficulty pointing to concrete things Congress can't do under their theory.   Meanwhile, of the conservatives who enforce the limits on Congress, only Justice Kennedy is strongly on the record in favor of enforcing unenumerated rights.  Both Justices Scalia and Thomas are on the record as against the enterprise, with the CJ and Justice Alito too new to the Court to have faced the fundamental questions directly.  (Notably, the leading academic proponent of the activity/inactivity distinction that prevailed in the Commerce Clause portion of the ACA Case, Randy Barnett, strongly favors unenumerated rights as well.)


2) Judicially enforce the unenumerated rights but not the limits on the enumerated powers of Congress.  This is the "political safeguards" approach.   Justice Powell's Garcia footnote suggests that the distinction is unprincipled but he may have been mistaken in thinking that individuals and states are similarly situated.  The whole theory of modern rights doctrine is that the rights of individuals and minorities are judicially protected because the vulnerable among them cannot adequately protect themselves in the political process.  Wechsler, Choper and Kramer have offered powerful reasons to think that states do have the means of protecting themselves through the political process.  Perhaps they're wrong, but if so, it is incumbent on those who think so to explain why.  Justice Powell's Garcia dissent does not do so.


3) Judicially enforce the limits on the enumerated powers of Congress but not the unenumerated rights.  As noted above, this is the position of Justices Scalia and Thomas.  Justice Ginsburg notes the seemingly upside-down-ness of their view in her dissent in the ACA Case: Even if one thought, per Powell in Garcia, that states are no less deserving of judicial protection than individuals, that's hardly a reason to think that they are more deserving of judicial protection.


So how do Justices Scalia and Thomas and some of their academic fellow travelers justify this odd juxtaposition?  Essentially by denying that the Ninth Amendment means what it says.   Justice Scalia's majority opinion in the Heller case reads "the people" in the Second Amendment to mean individuals, in part because the same term in the Ninth Amendment, "the people",  "unambiguously refer[s] to individual rights."   Yet he and the fellow travelers have argued that the individual rights they reference are not federal constitutional rights, despite the plain import of the text.

It is sometimes suggested that the real reason that judicial conservatives do not want to read the Ninth Amendment to mean what it pretty plainly says is that they fear that doing so would license the courts to strike down legislation whenever they disapproved of the underlying policy.  That concern, in my view, could legitimately underwrite a judicial policy along the lines advanced in the late 19th century by James Bradley Thayer: across-the-board deference to legislative bodies.  But given the capacity of judicially developed doctrines under the enumerated rights and federalism to license judicial "legislation" with just as much vigor (e.g., HellerCitizens United, the ACA case as the joint dissent saw things), it is hard to see a principled basis for singling out unenumerated rights for judicial non-enforcement.

13 comments:

Sam Rickless said...

"So how do Justices Scalia and Thomas and some of their academic fellow travelers justify this odd juxtaposition? Essentially by denying that the Ninth Amendment means what it says. Justice Scalia's majority opinion in the Heller case reads "the people" in the Second Amendment to mean individuals, in part because the same term in the Ninth Amendment, "the people", "unambiguously refer[s] to individual rights." Yet he and the fellow travelers have argued that the individual rights they reference are not federal constitutional rights, despite the plain import of the text."

This strikes me as not quite accurate, at least as a statement about Justice Scalia. Here is Justice Scalia in his Troxel v. Granville dissent:

"[T]he Constitution’s refusal to “deny or disparage” other rights is far removed from affirming any one of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judges’ list against laws duly enacted by the people."

Justice Scalia seems to be arguing that from the claim that some unenumerated rights are retained by the people and cannot be denied or disparaged by the Federal Government, it does not follow that this or that particular right is retained by the people and cannot be denied or disparaged by the Federal Government. Seemingly on the strength of this, Justice Scalia concludes that it would be a mistake *for a Federal judge* interpreting 9A to identify any particular right as deserving of protection under 9A. It seems a bit quick to describe this argument as the claim that the individual rights referenced by 9A are not federal constitutional rights. It might be more accurate to say that the argument is that although the individual rights referenced by 9A are federal constitutional rights, no particular such right is identified by 9A, and hence no particular such right is protected by 9A.

How good is Justice Scalia's argument, and does it contradict his "plain meaning" originalism? My own view is that although the argument is poor, it does not contradict his "plain meaning" originalism. The Constitution says that some unenumerated rights (against the federal government) are retained by the people (i.e., by individual people), but a fortiori does not tell us what those unenumerated rights are. This much we can all agree on. The issue is what follows from this. Justice Scalia thinks it follows that a judge interpreting the Constitution ought not identify this or that right as deserving of protection under 9A. But in saying this, Scalia is going beyond "plain meaning" originalism and venturing into general theory of adjudication. His theory is neither supported by nor contradicted by his originalism. (The theory seems to be that there is no objective way for a Federal judge to identify unenumerated rights as deserving of protection under 9A, and that allowing a Federal judge to identify such rights would spell political disaster.) But it's really no good as a theory. Why? Because if the Constitution says that there are federal rights retained by the people, those rights are held against the legislative and executive branches. But this means that neither the legislative nor the executive branch can be left to decide what those rights are. This means that either the judicial branch must be left to decide what those rights are *or* 9A serves no purpose. But I take it that even Scalia accepts that rules of construction require that each of the clauses of the Constitution serves at least some purpose. Scalia's argument therefore fails.

Joe said...

The citation to Troxel brings to mind that Thomas joined the majority. This is a case (shades of Jan Crawford!) where Thomas deserves some credit.

Thomas does not appear to deny 9A rights and/or advances the basic process via the privileges or immunities route (see, e.g., his separate opinions in Saenz and McDonald).

Back to the main post. Functionally, there are various textual "limits on the enumerated powers" such as no bill of attainder, the 1A and so forth.

Though admittedly liberals on the Court (but see Souter in Printz speaking of needing to pay for services and Ginsburg joining Boerne) are not big fans, there are federalism rules that libs have accepted such as Lopez or allowing states to put their capitals where they want.

Textual limits and some minimum rationality test for "necessary and proper" therefore can provide some honest limits on congressional powers w/o ala Barnett them being open-ended "national problems" clauses.

But, yes, enumerated powers broadly speaking would be given discretion ala FN4 of Carolene Products. The ACA case, though I might be biased, is not a good place to draw lines here since the CC power was clearly valid there.

Lopez made more sense & the dissent there (as with the gun cases, even though liberal professors like Levinson et. al. accept the RKBA even if their have disdain for the Scalia opinion) was somewhat misguided in not seeing a chance for some compromise.

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Chris Simpelton said...

Before embarking on this interesting intellectual exercise, we might do well to read the Ninth Amendment one more time. "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." What does that say? It says "don't worry, Mr. Hamilton, just because we emphasized certain specific rights, it doesn't mean the people don't have other rights that we didn't write about here." it is an expression of the fact that some rights are so fundamental and inalienable that the mere expression of other rights does not imply the evisceration of others. You have, for example, the undeniable right to breathe. You also have the right to look at the sunrise and eat spaghetti. Can Congress take those rights away? Yes, theoretically, it can. But only with a piece of legislation conforming to the strictures of an express enumerated power, properly limited. It is only because our federal government has extended its power beyond all rational bounds in a federalist Constitutional structure that one needs to think about judicial enforcement of unenumerated powers. The framers who wrote those words would never have imagined that Congress had the power to tax away one's right to gaze at a celestial body,mor to compel a citizen to abstain from spaghetti consumption on pain of a statutory penalty collected by a gastronomically agnostic tax man. Perhaps since we have a new view of the taxing power and commerce clause, we should reconsider whether the Ninth Amendment similarly "breathes" with the changing times and shifting political winds. Come to think of it, I feel tht I SHOULD have a fundamental right to eat broccoli!

Cristiero Rola said...

Meanwhile, of the conservatives who enforce the limits on Congress, only Justice Kennedy is strongly on the record in favor of enforcing unenumerated rights. Both Justices Scalia and Thomas are on the record as against the enterprise, with the CJ and Justice Alito too new to the Court to have faced the fundamental questions directly. (Notably, the leading academic proponent of the activity/inactivity distinction that prevailed in the Commerce Clause portion of the ACA Case, Randy Barnett, strongly favors unenumerated rights as well.)Windows 7 ultimate Key
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Joe said...

First, Hamilton wasn't the concern of the 9A. He wanted the feds to have MORE power, if anything.

"the power to tax away one's right to gaze at a celestial body"

Not seeing where Congress is trying to do this or stopping us from eating broccoli (or not eating it; the law is about coverage ... more like "forcing" us to have the stuff) etc.

The 9A is a reminder that the feds can only go so far but let's not go overboard here. Or, forget that back in the "charming days of yore," many people's rights were denied in other ways.

The feds banned the mailing of contraceptive material in the late 19th Century. It allowed states to block the spread of abolitionist literature in the early 19th Century. Just to get some perspective.

Chogavl Hong said...

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