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.