They’re Back: The Rehnquist Court is returning to constitutional principles that the New Deal Court had simply pushed aside.

This essay first appeared in the February 14, 2000 Legal Times.
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Having served in all three branches of the federal government, Abner Mikva truly is, as we say, a government man. It comes as no surprise, therefore, to find him defending government in these pages. His column ("Beyond Original Intent," page 12, Daily Report, Feb. 1, 2000) is an unqualified attack on the Supreme Court's recent efforts to restrain federal power.

And why should the Rehnquist Court not exercise Mikva, given his constitutional vision? He writes: "Those of us who came out of law school reading the opinions of Roosevelt's New Deal Court were pretty wellpersuaded that Congress could pass just about any legislation it saw fit. My constitutional law professor assured us that the commerce clause and the 'necessary and proper' clause gave Congress all the power it needed."

Thus, the theme and title of the essay: The Rehnquist Court is, Mikva believes, "recycling" the "bad constitutional interpretations" of caseslike Schechter Poultry Corp. v. United States (1935). Franklin Roosevelt's 1937 Supreme Court-packing scheme brought an end to such interpretations, ofcourse, to Mikva's apparent delight.

Indeed, an essay that more thoroughly conveyed, in so short a compass,the idea that the Constitution is the willing handmaiden of federal power wouldbe hard to find. Mikva criticizes United States v. Lopez (1995), which found Congress powerless under the commerce clause to create gun-free schoolzones. He goes after New York v. United States (1992) and Printz v. United States(1997), which held that Congress cannot "commandeer" state legislatures and agentsto serve federal ends.

He condemns the admittedly more difficult cases that have followedSeminole Tribe v. Florida (1996), which invoke the 11th Amendment to hold statesimmune from certain suits in federal courts. And looking to the future, he lamentsthe signals at last month's oral argument in United States v. Morrison, which suggest that the Supreme Court may well find that Congress exceeded itspowers under both the commerce clause and the 14th Amendment when it enacted the Violence Against Women Act.

Thus, notwithstanding his years on the bench, what we see here is thesoul of a congressman, bent, like the administration he recently served, onproviding better living through bigger government (as Madison Avenue might put it).Not once in the essay do we find even a hint of any limits on federal power.

Indeed, despite the focus on federalism, the phrase "enumerated powers"is nowhere to be found. It's as if that con law professor of long ago hadneglected to give the customary opening lecture, which Chief Justice WilliamRehnquist gave as he began Lopez: "We start with first principles. The Constitution establishes a government of enumerated powers."

Wrong for 150 Years?

Mikva's analysis invokes instead that most confused and misleading ofideas, "judicial activism." Charging the Rehnquist Court with having "discountedthe importance of stare decisis" (in the words of Justice John Paul Stevens),Mikva likens today's Supreme Court to its pre-1937 counterpart, which was accusedof being "a hotbed of judicial activism," he reminds us. Holding Congress toits enumerated powers is judicial activism, it seems, whereas discerning powers nowhere enumerated, to enable government to grow, is not.

The problem with that view, especially when it is joined with respect for stare decisis, is the inconsistency and historical embarrassment thatfollows. To contend that the 1937 Court finally got it right is not only to"discount" stare decisis but to imply that for 150 years, when power remained more orless within constitutional bounds, the court had it wrong. That's an awfullylong time to be wrong about the Constitution.

Indeed, in taking the tentative steps it has taken toward reviving the doctrine of enumerated powers, the Rehnquist Court may be far morerespectful of stare decisis than the New Deal Court ever was. But don't take my word on that-or on the machinations of the New Deal Court Mikva lionizes.

'Tortured Interpretations'

Rexford Tugwell, one of the principal architects of the New Deal, put it plainly some 30 years after the court had completed its revolution withUnited States v. Carolene Products Co. (1938). In a 1968 essay entitled "Rewritingthe Constitution," Tugwell declared: "To the extent that these New Dealpolicies developed, they were tortured interpretations of a document intended toprevent them."

So much for judicial restraint, to say nothing of judicial integrity. Yetin so writing, Tugwell was merely echoing his mentor-and Mikva's idol, one imagines- Roosevelt, who in 1935 wrote to the chairman of the House Waysand Means Committee, "I hope your committee will not permit doubts as to constitutionality, however reasonable, to block the suggested legislation."

Arguments from stare decisis and judicial activism lead ultimately to substantive matters, of course, and to the question of just what, in theend, the Constitution says and means. Thus, with the political posturing aside,we can turn to the document itself-or there's no point in having aConstitution.

Doing so, it's not a little revealing to find Mikva complaining that for years there weren't many who thought that Congress had to "jump hurdles"before enacting legislation; but now, when Congress wants to protect civil rights,the Supreme Court is insisting "that legislators find and declare the existenceof a particular problem caused by some kind of state action before theyestablish rules and remedies."

Well, yes, that's what the Constitution calls for. Section 5 of the 14th Amendment authorizes Congress "to enforce, by appropriate legislation, the provisions of this article." And those provisions-in '1, inparticular-prohibit states from abridging, depriving, or denying in the relevant ways. That'swhy the Violence Against Women Act, insofar as it rests on '5, should be struck down: It provides private remedies against private parties, not againststate actors. In addressing a matter that Congress has no authority to address,the act runs afoul of the doctrine of enumerated powers.

Yet for Mikva, textualism is not to be eschewed entirely. In fact, herails against what he takes to be the Rehnquist Court's extratextual reading ofthe 11th Amendment. One reads the amendment "in vain," he writes, "to find any mention of the words 'sovereign immunity.' "

True, those words are not there, any more than the words "privacy" or "association" or "expression" are in the Bill of Rights. But the idea-quite apart from the scope or application the Supreme Court has given it-isplainly entailed by the amendment. Textualism, in short, is not literalism.

10th, 11th Amendments

It is Mikva's summation, however, that speaks volumes not simply abouthis constitutional vision but about the larger state of constitutional lawtoday. After surveying the recent work of the court, Mikva concludes that "the10th and 11th amendments, pretty much dormant for more than a half-century, havebeen given a new vitality-a shot in the arm that at least four members of theCourt recognize is not justified by constitutional history or the jurisprudenceof 200 years" (emphasis in original).

Reflect on that formulation. If the 10th and 11th amendments were prettymuch dormant for more than a half-century, the implication is that they were not dormant prior to that time. But if that is so, then the four justices who believe their revival to be mistaken cannot point to "constitutionalhistory," much less to "the jurisprudence of 200 years," to justify their belief.Either the court was wrong for 150 years, or it has been wrong for 50 years-butnot both.

Mikva's indifference to such "rational niceties," if I may, is no better illustrated than by his contention that if the court continues on itscurrent course, " 'federalism' is going to get some definitions that James Madisonwould not like or recognize." That is the same James Madison, let us note, whowrote in Federalist No. 45 that under the new Constitution the powers of thefederal government would be "few and defined."

It is understandable that a government man would find Madison's actual words inconvenient. But that is no reason for the rest of us to ignore those words, or to ignore the actual words or meaning of the Constitution, for that matter. However tentatively and uncertainly, the Rehnquist Court is at least moving toward the questions that the New Deal Court simply pushed aside to make way for the modern state.