An Entrenched Legacy: How the New Deal Constitutional Revolution Continues to Shape the Role of the Supreme Court

4 The Court’s Federalism Revolution

4 the court’s federalism revolution The revival of federalism has become a defining theme of the Rehnquist Court. Commentators have described the Court’s decisions as sparking a ‘‘federalism revolution.’’ But this so-called revolution comes after a long dormancy. From the late 1930s to the early 1990s, constitutional provisions related to federalism were largely ignored. Under the leadership of the late Chief Justice William Rehnquist, however, and through a wide array of cases employing both the Tenth and Eleventh Amendments, the Court has slowed or even stalled the constitutional drift of power from the states to the federal government that began in the 1930s. This new federalism has attempted to resuscitate the role of the states in the constitutional system, as well as to revive certain federalism doctrines that were abandoned during the New Deal. Although the Rehnquist Court’s revolution involved the revival of numerous constitutional provisions related to federalism, one provision that the Court did not revive or rely upon was the Ninth Amendment. Prior to the New Deal, the Ninth and Tenth Amendments were seen as together limiting the scope of federal powers.1 While the Tenth Amendment confined the federal government only to the powers enumerated in the Constitution, reserving all unenumerated powers to the states, the Ninth Amendment created a rule of construction that limited the interpretation of those enumerated federal powers. In this way, according to Professor Kurt Lash, ‘‘the rule of the Ninth preserved the principle of the Tenth’’ by preventing the undue expansion of enumerated powers. But after the New 1. Kurt T. Lash, James Madison’s Celebrated Report of : The Transformation of the Tenth Amendment, 74, 158 Geo. Wash. L. Rev. 165, 193 (2006). 72 ■ an entrenched legacy Deal, this federalist application of the Ninth Amendment was abandoned . During its federalism revival six decades later, Lash notes, the Rehnquist Court did not employ the Ninth Amendment, which had long since disappeared from the federalism debate, but used only the Tenth Amendment as the constitutional basis for limiting federal power.2 The Values of Federalism The most-often cited value of federalism is that it provides a check on any tyrannical tendencies of the federal government. By granting only limited powers to the national government, as well as by maintaining two levels of competing governments, the framers sought to control the power of the national government. According to Justice Stephen Breyer, a division of authority between the state and federal levels can protect liberty ‘‘by restricting the burdens that government can impose from a distance and by facilitating citizen participation in government that is closer to home.’’3 As Professor Akhil Amar writes, federalism offers a structure of ‘‘overlapping legal remedies for constitutional wrongs.’’4 Although recent history has focused attention on instances where the federal government had to intervene to address state violations of civil rights, there have also been times when the states had to rise up to remedy federal abuses. Prior to Bivens v. Six Unknown Federal Agents, for example, the state law of trespass provided the only remedy for persons whose homes had been illegally searched by federal agents.5 Furthermore, in the early habeas corpus cases, the states provided an avenue through which those who were incarcerated in federal prisons and in violation of their federal constitutional rights could obtain their freedom.6 A second value of federalism relates to the close relationship existing between state governments and their constituencies, the 2. Id. at 169. 3. United States v. Morrison, 529 U.S. 598, 655 (2000) (Breyer, J., dissenting). 4. Akhil Reed Amar, Of Sovereignty and Federalism, 96 Yale L. J. 1425, 1504 (1987). 5. 403 U.S. 388 (1971). 6. Amar, Of Sovereignty and Federalism, 1509. the court’s federalism revolution ■ 73 assumption being that the smaller the governing unit the more likely it is to be responsive to the needs of the community.7 Obviously , state legislatures are more connected to and aware of localized interests than is Congress. In the framers’ view, republican forms of government were suitable only to small territories, because ‘‘only a small republic could maintain the voluntary attachment of the people.’’8 Small, localized political units are also able to foster a deeper sense of community and increased opportunities for political participation. At the same time, definite boundaries between state and federal authority allow voters to be able to hold the appropriate of...