Comfortably penumbral

Boston University Law Review

Volumn 77, Issue 5, 1997, Pages 1089-1120

  Denning, Brannon P ^a   Reynolds, Glenn Harlan ^a  

^a NONE

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EID: 0031378074     PISSN: 00068047     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (209)

1. The victory for the textualists and originalists is nearly complete, as shown by recent instances of the more "liberal" members of the Court taking the new conservative majority to task for allegedly ignoring text and history in their decisions. See, e.g., Printz v. United States, 117 S. Ct. 2365, 2389 (1997) (Stevens, J., dissenting).
2. Justice Stevens wrote: There is not a clause, sentence, or paragraph in the entire text of the Constitution of the United States that supports the proposition that a local police officer can ignore a command contained in a statute enacted by Congress pursuant to an express delegation of power enumerated in Article I.
3. Id.; see also id. at 2390 (criticizing the majority's response to historical arguments as "weak"). As Jeffrey Rosen notes, "liberals have become the defenders of judicial restraint and conservatives the defenders of judicial activism." Jeffrey Rosen, Nine Votes for Judicial Restraint, N.Y. TIMES, June 29, 1997, at E15.
4. BOSTON UNIVERSITY LAW REVIEW [Vol. 77:1089 Moreover, the new post-New Deal generation of legal scholars has embraced text and history to justify results that commentators might characterize as "liberal." See, e.g., CASS R. SUNSTEIN, THE PARTIAL CONSTITUTION 119 (1993) ("Any system of interpretation that disregards the constitutional text cannot deserve support.");
5. Akhil Reed Amar, The Consent of the Governed: Constitutional Amendment Outside Article V, 94 COLUM. L. REV. 457 (1994) (invoking text and history in support of an unenumerated right to "alter or abolish" the Constitution outside of the Article V amending process);
6. see also Brannon P. Denning, Means to Amend: Theories of Constitutional Change, 65 TENN. L. REV. 155 (1997).
7. See generally 1 BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991) (relying on history to support his theory of amendatory change through "constitutional moments" instead of through the Article V amendment process).
8. Historian Laura Kalman has described this as a new trend in "legal liberalism." LAURA KALMAN, THE STRANGE CAREER OF LEGAL LIBERALISM 1 (1996).
9. See Printz, 117 S. Ct. at 2366 ("Because there is no constitutional text speaking to the precise question . . . the answer to the . . . challenge must be sought in historical understanding and practice, in the Constitution's structure, and in this Court's jurisprudence.").
10. Glenn H. Reynolds, Penumbral Reasoning on the Right, 140 U. PA. L. REV. 1333, 1333 (1992).
11. 381 U.S. 479, 483-86 (1965) (striking down a Connecticut statute forbidding the use of contraceptives because the guarantees in the Bill of Rights have "penumbra[s] where privacy is protected from governmental intrusion" into the marital relationship).
12. See, e.g., Anthony Lewis, Justices on a Mission, N.Y. TIMES, June 30, 1997, at A11 (criticizing conservative Supreme Court Justices for becoming "result-oriented" and reaching their intended result without regard to precedent or constitutional doctrine); Jeffrey Rosen, Dual Sovereigns, NEW REPUBLIC, July 28, 1997, at 16, 17 (accusing the Court's conservative Justices of ignoring constitutional text and misconstruing constitutional history, thereby creating "bad constitutional law").
13. See, e.g., Anthony Lewis, Justices on a Mission, N.Y. TIMES, June 30, 1997, at A11 (criticizing conservative Supreme Court Justices for becoming "result-oriented" and reaching their intended result without regard to precedent or constitutional doctrine); Jeffrey Rosen, Dual Sovereigns, NEW REPUBLIC, July 28, 1997, at 16, 17 (accusing the Court's conservative Justices of ignoring constitutional text and misconstruing constitutional history, thereby creating "bad constitutional law").
14. See generally Glenn Harlan Reynolds, Sex, Lies and Jurisprudence: Robert Bork, Griswold, and the Philosophy of Original Understanding, 24 GA. L. REV. 1045 (1990) (criticizing Robert Bork's attacks on penumbral reasoning as result-oriented and inconsistent with original understanding).
15. See Reynolds, supra note 3, at 1334-36.
16. See, e.g., ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW 263-65 (1990) (stating that with the "result-first, premises-to-follow form of legal 'reasoning[,]' . . . [t]here are no rules, only passions"); see also Reynolds, supra note 6, at 1062 (describing Robert Bork's criticism of Griswold).
17. See, e.g., ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW 263-65 (1990) (stating that with the "result-first, premises-to-follow form of legal 'reasoning[,]' . . . [t]here are no rules, only passions"); see also Reynolds, supra note 6, at 1062 (describing Robert Bork's criticism of Griswold).
18. 116 S. Ct. 1620, 1623 (1996) (striking down Colorado's Amendment Two, which prohibited the passage of legislation or implementation of policies at any level of state or local government granting additional protections to homosexuals).
19. CHARLES L. BLACK, JR., STRUCTURE AND RELATIONSHIP IN CONSTITUTIONAL LAW 29 (Ox Bow Press 1985) (1969).
20. Reynolds, supra note 3, at 1334.
21. See id. at 1334-37. Note that Douglas's use of the term "penumbra" in Griswold was not new - Karl Llewellyn had used the word three decades earlier. See Karl Llewellyn, The Constitution as an Institution, 34 COLUM. L. REV. 1, 26-28 (1934) (describing how the edges of the working Constitution are not sharp but "penumbra-like" and in "constant flux"). For more on this history, see Henry T. Greely, A Footnote to "Penumbra" in Griswold v. Connecticut, 6 CONST. COMMENTARY 251 (1989) (inquiring into the history of the word "penumbra" from judicial opinions prior to Griswold); Burr Henly, "Penumbra": The Roots of a Legal Metaphor, 15 HASTINGS CONST. L.Q. 81, 83 (1987) (exploring the penumbra metaphor's origin and significance).
22. See id. at 1334-37. Note that Douglas's use of the term "penumbra" in Griswold was not new - Karl Llewellyn had used the word three decades earlier. See Karl Llewellyn, The Constitution as an Institution, 34 COLUM. L. REV. 1, 26-28 (1934) (describing how the edges of the working Constitution are not sharp but "penumbra-like" and in "constant flux"). For more on this history, see Henry T. Greely, A Footnote to "Penumbra" in Griswold v. Connecticut, 6 CONST. COMMENTARY 251 (1989) (inquiring into the history of the word "penumbra" from judicial opinions prior to Griswold); Burr Henly, "Penumbra": The Roots of a Legal Metaphor, 15 HASTINGS CONST. L.Q. 81, 83 (1987) (exploring the penumbra metaphor's origin and significance).
23. See id. at 1334-37. Note that Douglas's use of the term "penumbra" in Griswold was not new - Karl Llewellyn had used the word three decades earlier. See Karl Llewellyn, The Constitution as an Institution, 34 COLUM. L. REV. 1, 26-28 (1934) (describing how the edges of the working Constitution are not sharp but "penumbra-like" and in "constant flux"). For more on this history, see Henry T. Greely, A Footnote to "Penumbra" in Griswold v. Connecticut, 6 CONST. COMMENTARY 251 (1989) (inquiring into the history of the word "penumbra" from judicial opinions prior to Griswold); Burr Henly, "Penumbra": The Roots of a Legal Metaphor, 15 HASTINGS CONST. L.Q. 81, 83 (1987) (exploring the penumbra metaphor's origin and significance).
24. See id. at 1334-37. Note that Douglas's use of the term "penumbra" in Griswold was not new - Karl Llewellyn had used the word three decades earlier. See Karl Llewellyn, The Constitution as an Institution, 34 COLUM. L. REV. 1, 26-28 (1934) (describing how the edges of the working Constitution are not sharp but "penumbra-like" and in "constant flux"). For more on this history, see Henry T. Greely, A Footnote to "Penumbra" in Griswold v. Connecticut, 6 CONST. COMMENTARY 251 (1989) (inquiring into the history of the word "penumbra" from judicial opinions prior to Griswold); Burr Henly, "Penumbra": The Roots of a Legal Metaphor, 15 HASTINGS CONST. L.Q. 81, 83 (1987) (exploring the penumbra metaphor's origin and significance).
25. See Griswold, 381 U.S. at 482-84.
26. See id. at 527 (Black, J., dissenting) ("Connecticut's law as applied here is not forbidden by any provision of the Federal Constitution as that Constitution was written.").
27. See, e.g., id. at 510 (Black, J., dissenting) (stating that the government has a right to invade privacy unless it is expressly prohibited by a constitutional provision).
28. See, e.g., Reynolds, supra note 6, at 1074-81 (arguing that Douglas's analysis in Griswold is consistent with statements of Framers such as James Iredell and Samuel Chase, and later experts on Framing-era thought such as Joseph Story).
29. See, e.g., JEAN EDWARD SMITH, JOHN MARSHALL: DEFINER OF A NATION 437 (1996) ("Like all of Marshall's great constitutional decisions, the Dartmouth College opinion is uncluttered with citations to cases and precedent. That reflected a deliberate choice rather than ignorance or carelessness. . . . [A]s he usually did when wrestling with fundamental constitutional questions, Marshall preferred to reason from general principles.").
30. 17 U.S. (4 Wheat.) 316 (1819) (holding that Congress has the power to establish a national bank, and the states do not have the power to impede the bank by taxation).
31. See Reynolds, supra note 3, at 1345 n.47 (concluding that McCulloch is "a rather clear product of penumbral reasoning").
32. See infra Part II.
33. See McCulloch, 17 U.S. (4 Wheat.) at 409 (admitting that "[t]he power of creating a corporation . . . is not expressly conferred on Congress").
34. Id. at 407.
35. "Congress shall have Power . . . [t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." U.S. CONST. art. I, § 8, cl. 18.
36. See McCulloch, 17 U.S. (4 Wheat.) at 419-20. Compare U.S. CONST. art. I, § 8 (enumerating Congress's powers), with U.S. CONST. art. I, § 9 (restricting Congress's powers).
37. McCulloch, 17 U.S. (4 Wheat.) at 414-15 (comparing the phrase "absolutely necessary" in Article 1, Section 10, Clause 2 of the Constitution with "necessary," as stated in the Necessary and Proper Clause, and finding that "the convention understood itself to change materially the meaning of the word 'necessary' by prefixing the word 'absolutely'").
38. The Supremacy Clause states; This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land, and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. U.S. CONST. art. VI, § 2.
39. See McCulloch, 17 U.S. (4 Wheat.) at 404-06.
40. See id. at 421 ("We admit, as all must admit, that the powers of the government are limited, and that its limits are not to be transcended.").
41. See id. Thus, Marshall expressed what amounts to a test for congressional exercise of its "implied" powers: [W]e think the sound construction of the constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional. Id.
42. See id. at 423. Marshall wrote: Should Congress, in the execution of its powers, adopt measures which are prohibited by the constitution; or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the government; it would become the painful duty of this tribunal . . . to say that such an act was not the law of the land. Id.
43. See id. at 406; see also U.S. CONST. amend. X. Marshall noted, however, that any proper interpretation of the Tenth Amendment itself must take into account the other provisions of the Constitution and the facts of its ratification, such as the fact that it was framed by the people of the United States and operated as an obligation on the states through the Supremacy Clause. He wrote that the Tenth Amendment "[left] the question, whether the particular power which may become the subject of contest has been delegated to the one government, or prohibited to the other, to depend on a fair construction of the whole instrument." McCulloch, 17 U.S. (4 Wheat.) at 406 (emphasis added).
44. See McCulloch, 17 U.S. (4 Wheat.) at 407-09. Marshall wrote: [I]t may with great reason be contended, that a government, entrusted with such ample powers [to tax, to borrow money, to regulate commerce, to declare war, etc.], on the due execution of which the happiness and prosperity of the nation so vitally depends, must also be entrusted with ample means for their execution. Id. at 408; see also id. at 416-17 (arguing that, for example, the power to regulate the post implies the power to punish crimes like stealing letters).
45. Id. at 408.
46. See id. at 425.
47. See id. (arguing that a state should be restrained "from such other exercise of [its taxing] power, as is in its nature incompatible with, and repugnant to, the constitutional laws of the Union").
48. See id. at 426-27.
49. See id. at 427; see also SMITH, supra note 17, at 444-55.
50. See McCulloch, 17 U.S. (4 Wheat.) at 426 ("[T]he constitution and the laws made in pursuance thereof are supreme; [and] they control the constitution and the laws of the respective States , and cannot be controlled by them."); see also id. at 427 ("It is of the very essence of supremacy to remove all obstacles to its action within its own sphere, and so to modify every power vested in subordinate governments, as to exempt its own operations from their own influence.").
51. Id. at 426 (emphasis added). Marshall's characterization of McCulloch's argument is obviously sympathetic.
52. See id. at 425-26.
53. See Reynolds, supra note 3, at 1345 n.47 (quoting BORK, supra note 8, at 27). Strangely enough, Judge Robert Bork endorses McCulloch, a rather clear product of penumbral reasoning, as a "magnificent example of reasoning from the text and structure of the Constitution." BORK, supra note 8, at 27. It is hard to understand on what basis Judge Bork distinguishes the methodology of McCulloch, which he regards as exemplary, from that of Griswold, which he execrates. Such are the drawbacks of advocacy scholarship.
54. BLACK, supra note 10, at 17.
55. See Reynolds, supra note 3, at 1337-43 (discussing the role of penumbral reasoning in the areas of standing and sovereign immunity).
56. See id. at 1333.
57. See supra note 1 (noting the criticisms Justice Stevens leveled against the majority in Printz v. United States, 117 S. Ct. 2365 (1997)).
58. See, e.g., Lewis, supra note 5, at A11 (stating that the Justices are "once more inventing doctrines to make the United States less of a nation"); Rosen, supra note 5, at 17 (criticizing the Court for not basing recent cases on text).
59. 116 S. Ct. 1620 (1997).
60. See id. at 1629 (Scalia, J., dissenting); see also infra Part II.E (discussing Romer).
61. 117 S. Ct. 2365 (1997); see infra notes 86-112 and accompanying text (discussing Scalia's Printz opinion).
62. Reynolds, supra note 3, at 1347.
63. The Eleventh Amendment states: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. CONST. amend. XI.
64. n See Reynolds, supra note 3, at 1341-43 (discussing then-Justice Rehnquist's dissent in Nevada v. Hall, 440 U.S. 410 (1979) (holding that a state is not constitutionally immune from suit in other state courts)).
65. 116 S. Ct. 1114 (1996).
66. Id. at 1119.
67. Id. at 1122 (citations omitted).
68. 491 U.S. 1 (1989).
69. U.S. CONST. art. I, § 8, cl. 3.
70. Seminole Tribe, 116 S. Ct. at 1127.
71. Id.
72. Id. at 1127-28 (quoting Pennhurst State Sch. and Hosp. v. Halderman, 465 U.S. 89, 97-98 (1984)).
73. See id. at 1130 ("[W]e long have recognized that blind reliance upon the text of the Eleventh Amendment is 'to strain the Constitution and the law to a construction never imagined or dreamed of.'" (quoting Principality of Monaco v. Mississippi, 292 U.S. 313, 326 (1934))); see also Pennhurst, 465 U.S. at 98 ("In short, the principle of sovereign immunity is a constitutional limitation on the federal judicial power established in Article III."); Ex parte New York, 256 U.S. 490, 497 (1921) ("[T]he entire judicial power granted by the Constitution does not embrace authority to entertain a suit brought by private parties against a State without consent given . . . .").
74. Seminole Tribe, 116 S. Ct. at 1129 (quoting Monaco, 292 U.S. at 321, 323 (citations and footnote omitted in original) (emphasis added)).
75. Id. at 1130 (quoting Hans v. Louisiana, 134 U.S. 1, 17 (1890)).
76. 117 S. Ct. 2028 (1997).
77. Id. at 2033.
78. Id.
79. See Reynolds, supra note 3, at 1345 (suggesting that sovereign immunity may have been intended to inform the substance of the Eleventh Amendment); see also Carlos Manuel Vasquez, What is Eleventh Amendment Immunity?, 106 YALE L.J. 1683, 1722-26 (1997) (discussing the controversy over the original intent behind both Article III and the Eleventh Amendment).
80. See Reynolds, supra note 3, at 1345 (suggesting that sovereign immunity may have been intended to inform the substance of the Eleventh Amendment); see also Carlos Manuel Vasquez, What is Eleventh Amendment Immunity?, 106 YALE L.J. 1683, 1722-26 (1997) (discussing the controversy over the original intent behind both Article III and the Eleventh Amendment).
81. See U.S. CONST. amend. XI.
82. See Akhil Reed Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425, 1456 (1987) ("In fact, the word 'sovereignty' never appears in the Constitution, not even in the Tenth Amendment . . . ." (footnote omitted)); id. at 1466 ("By allowing both federal and state governments to invoke 'sovereign immunity' from liability for constitutional violations, the Court has misinterpreted the Federalist Constitution's text, warped its unifying structure, and betrayed the intellectual history of the American Revolution that gave it birth."); id. at 1473 (calling the Court's interpretation of the intent of the Eleventh Amendment "nonsense"); id. at 1475 ("If the Eleventh Amendment was meant to enshrine the general immunity of state 'sovereigns' from private suits in federal court, it was abysmally drafted."); id. at 1476 (noting that the gap between Supreme Court Eleventh Amendment doctrine and the text of the Amendment "suggests the clear error of the Supreme Court's first interpretive premise that the Amendment is in fact concerned with sovereign immunity"). But see DAVID P. CURRIE, THE CONSTITUTION IN CONGRESS: THE FEDERALIST ERA 1789-1801, at 197-98 (1997). Currie writes: Sovereign immunity is not fashionable today. Nor is it an attractive principle. When government commits wrongs, they ought to be brought to book. When they violate federal rights, or the rights of citizens of other states or nations, they ought to be suable in federal court. But that was not the view of the Third Congress nor of the state legislatures that approved [the Eleventh Amendment]. . . . . . . . [T]he historical context [of the Amendment] belies any attempt at wishful thinking: As the prompt rejection of all ameliorating alterations shows, Congress was in no mood to permit any federal suit against a state by a citizen of another state or of a foreign country. Id.
83. See Akhil Reed Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425, 1456 (1987) ("In fact, the word 'sovereignty' never appears in the Constitution, not even in the Tenth Amendment . . . ." (footnote omitted)); id. at 1466 ("By allowing both federal and state governments to invoke 'sovereign immunity' from liability for constitutional violations, the Court has misinterpreted the Federalist Constitution's text, warped its unifying structure, and betrayed the intellectual history of the American Revolution that gave it birth."); id. at 1473 (calling the Court's interpretation of the intent of the Eleventh Amendment "nonsense"); id. at 1475 ("If the Eleventh Amendment was meant to enshrine the general immunity of state 'sovereigns' from private suits in federal court, it was abysmally drafted."); id. at 1476 (noting that the gap between Supreme Court Eleventh Amendment doctrine and the text of the Amendment "suggests the clear error of the Supreme Court's first interpretive premise that the Amendment is in fact concerned with sovereign immunity"). But see DAVID P. CURRIE, THE CONSTITUTION IN CONGRESS: THE FEDERALIST ERA 1789-1801, at 197-98 (1997). Currie writes: Sovereign immunity is not fashionable today. Nor is it an attractive principle. When government commits wrongs, they ought to be brought to book. When they violate federal rights, or the rights of citizens of other states or nations, they ought to be suable in federal court. But that was not the view of the Third Congress nor of the state legislatures that approved [the Eleventh Amendment]. . . . . . . . [T]he historical context [of the Amendment] belies any attempt at wishful thinking: As the prompt rejection of all ameliorating alterations shows, Congress was in no mood to permit any federal suit against a state by a citizen of another state or of a foreign country. Id.
84. See, e.g., Amar, supra note 69, at 1478-79 (characterizing the Court's decision in Ex Parte Young, 209 U.S. 123 (1908), as a "fiction").
85. See supra Part II.A.
86. See generally United States v. Lopez, 514 U.S. 549 (1995) (striking down the Gun-Free School Zones Act on the grounds that Congress, in passing the Act, had exceeded its authority under the Commerce Clause).
87. 514 U.S. 779 (1995).
88. See id. at 838 (Kennedy, J., concurring) ("In my view, however, it is well settled that the whole people of the United States asserted their political identity and unity of purpose when they created the federal system.").
89. See id. at 849 (Thomas, J., dissenting) ("[T]he notion of popular sovereignty that undergirds the Constitution does not erase state boundaries, but rather tracks them.").
90. Id. at 793 (quoting Powell v. McCormack, 395 U.S. 486, 548 (1969)).
91. See id. at 793-95.
92. See U.S. CONST. art. I, § 2, cl. 2 (stating that a Representative must be twenty-five years old, a seven-year U.S. citizen, and, when elected, an inhabitant of the state represented).
93. "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." U.S. CONST. amend. X.
94. Thornton, 514 U.S. at 802 (quoting 1 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 627 (1833)).
95. Id. at 804-05.
96. See id. at 845 (Thomas, J., dissenting).
97. Id. at 827.
98. See BLACK, supra note 10, at 11-13 (arguing that inference from structure could limit state interference with the operation of the federal government even absent other explicit textual support).
99. 117 S. Ct. 2365 (1997).
100. Rosen, supra note 5, at 17.
101. 18 U.S.C. §§ 921-930 (1994) (establishing guidelines for the purchase, transport, and licensing of firearms).
102. See id. § 922.
103. See Printz, 117 S. Ct. at 2368-69.
104. Id. at 2369.
105. Id. at 2370.
106. Id.
107. Id. at 2376 (quoting Monaco v. Mississippi, 292 U.S. 313, 322 (1934)).
108. See id.
109. Id.
110. Id. at 2378.
111. Id.
112. See id.
113. Id.
114. Id.
115. Id. at 2379 n. 13 (emphasis added).
116. See supra notes 73-87 and accompanying text (discussing Thornton).
117. Printz, 117 S. Ct. at 2388 n.2 (Stevens, J., dissenting).
118. Id. at 2389 (Stevens, J., dissenting). Of course, whether that law was a constitutional exercise of that power was, really, the crux of the problem.
119. See id. at 2387 (Stevens, J., dissenting). This comment is interesting in light of the majority opinion, in which Justice Stevens joined, in Boerne v. Flores, 117 S. Ct. 2157 (1997). See infra notes 113-28 and accompanying text (discussing Boerne).
120. 462 U.S. 919 (1983) (invalidating the "legislative veto" as contrary to the Framers' intent to house all legislative power in a single procedure designed in accord with the doctrine of separation of powers).
121. Printz, 117 S. Ct. at 2393-94 (footnote omitted).
122. See id. at 2394.
123. Or with his majority opinion in Camps Newfound/Owatonna, Inc. v. Harrison, 117 S. Ct. 1590 (1997). See infra notes 133-48 and accompanying text (discussing Camps Newfound).
124. Printz, 117 S. Ct. at 2391.
125. See infra notes 133-48 and accompanying text.
126. 117 S. Ct. 2157 (1997).
127. U.S. CONST. amend. XIV, § 5.
128. 42 U.S.C. §§ 2000bb to 2000bb-4 (1995).
129. See Boerne, 117 S. Ct. at 2160-62 (discussing Employment Div. v. Smith, 494 U.S. 872 (1990) (holding that a facially neutral regulation applied evenhandedly did not violate the Free Exercise Clause of the First Amendment, even when the application of the regulation had the effect of burdening the exercise of religion)).
130. See id. at 2168.
131. Id. at 2162 (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176 (1803)). Note that Kennedy does not say that it is found explicitly in the text of the Constitution. A consistent application of the position that one may not draw inferences where the text is silent, as articulated by Justice Thomas in Thornton at by Justice Stevens - who joined Kennedy's Boerne opinion - in his Printz dissent, would dramatically weaken the case for judicial review of congressional acts.
132. Marbury, 5 U.S. (1 Cranch) at 176.
133. See id.
134. See id.
135. Id. at 177.
136. See id. at 177-78.
137. Id. at 178.
138. Id.
139. See Boerne v. Flores, 117 S. Ct. 2157, 2164 (1997) (stating that such a literal interpretation would allow Congress to determine that which violates the Constitution).
140. See Katzenbach v. Morgan, 384 U.S. 641 (1966). Justice Brennan argued that, as a positive grant of power to Congress, Section 5 did not necessitate a prior judicial determination that the object of congressional action was a violation of the Fourteenth Amendment. See id. at 648-49. To hold otherwise, he wrote, "would confine the legislative power in this context to the insignificant role of abrogating only those state laws that the judicial branch was prepared to adjudge unconstitutional, or of merely informing the judgment of the judiciary by particularizing the 'majestic generalities' of § 1 of the Amendment." Id. (citation omitted). For a defense of Justice Brennan's interpretation, see Archibald Cox, The Supreme Court, 1965 Term - Foreword: Constitutional Adjudication and the Promotion of Human Rights, 80 HARV. L. REV. 91, 106-07 (1966) (describing Morgan's new form of judicial deference as "soundly rooted in established constitutional principles"). See also Stephen L. Carter, The Morgan "Power" and the Forced Reconsideration of Constitutional Decisions, 53 U. CHI. L. REV. 819, 821 (1986) (calling the Morgan decision "consonant with the dominant liberal ideal of a dynamic society evolving toward justice"). For a critique of Brennan's position, see Alexander M. Bickel, The Voting Rights Cases, 1966 SUP. CT. REV. 79.
141. See Katzenbach v. Morgan, 384 U.S. 641 (1966). Justice Brennan argued that, as a positive grant of power to Congress, Section 5 did not necessitate a prior judicial determination that the object of congressional action was a violation of the Fourteenth Amendment. See id. at 648-49. To hold otherwise, he wrote, "would confine the legislative power in this context to the insignificant role of abrogating only those state laws that the judicial branch was prepared to adjudge unconstitutional, or of merely informing the judgment of the judiciary by particularizing the 'majestic generalities' of § 1 of the Amendment." Id. (citation omitted). For a defense of Justice Brennan's interpretation, see Archibald Cox, The Supreme Court, 1965 Term - Foreword: Constitutional Adjudication and the Promotion of Human Rights, 80 HARV. L. REV. 91, 106-07 (1966) (describing Morgan's new form of judicial deference as "soundly rooted in established constitutional principles"). See also Stephen L. Carter, The Morgan "Power" and the Forced Reconsideration of Constitutional Decisions, 53 U. CHI. L. REV. 819, 821 (1986) (calling the Morgan decision "consonant with the dominant liberal ideal of a dynamic society evolving toward justice"). For a critique of Brennan's position, see Alexander M. Bickel, The Voting Rights Cases, 1966 SUP. CT. REV. 79.
142. See Katzenbach v. Morgan, 384 U.S. 641 (1966). Justice Brennan argued that, as a positive grant of power to Congress, Section 5 did not necessitate a prior judicial determination that the object of congressional action was a violation of the Fourteenth Amendment. See id. at 648-49. To hold otherwise, he wrote, "would confine the legislative power in this context to the insignificant role of abrogating only those state laws that the judicial branch was prepared to adjudge unconstitutional, or of merely informing the judgment of the judiciary by particularizing the 'majestic generalities' of § 1 of the Amendment." Id. (citation omitted). For a defense of Justice Brennan's interpretation, see Archibald Cox, The Supreme Court, 1965 Term - Foreword: Constitutional Adjudication and the Promotion of Human Rights, 80 HARV. L. REV. 91, 106-07 (1966) (describing Morgan's new form of judicial deference as "soundly rooted in established constitutional principles"). See also Stephen L. Carter, The Morgan "Power" and the Forced Reconsideration of Constitutional Decisions, 53 U. CHI. L. REV. 819, 821 (1986) (calling the Morgan decision "consonant with the dominant liberal ideal of a dynamic society evolving toward justice"). For a critique of Brennan's position, see Alexander M. Bickel, The Voting Rights Cases, 1966 SUP. CT. REV. 79.
143. See Katzenbach v. Morgan, 384 U.S. 641 (1966). Justice Brennan argued that, as a positive grant of power to Congress, Section 5 did not necessitate a prior judicial determination that the object of congressional action was a violation of the Fourteenth Amendment. See id. at 648-49. To hold otherwise, he wrote, "would confine the legislative power in this context to the insignificant role of abrogating only those state laws that the judicial branch was prepared to adjudge unconstitutional, or of merely informing the judgment of the judiciary by particularizing the 'majestic generalities' of § 1 of the Amendment." Id. (citation omitted). For a defense of Justice Brennan's interpretation, see Archibald Cox, The Supreme Court, 1965 Term - Foreword: Constitutional Adjudication and the Promotion of Human Rights, 80 HARV. L. REV. 91, 106-07 (1966) (describing Morgan's new form of judicial deference as "soundly rooted in established constitutional principles"). See also Stephen L. Carter, The Morgan "Power" and the Forced Reconsideration of Constitutional Decisions, 53 U. CHI. L. REV. 819, 821 (1986) (calling the Morgan decision "consonant with the dominant liberal ideal of a dynamic society evolving toward justice"). For a critique of Brennan's position, see Alexander M. Bickel, The Voting Rights Cases, 1966 SUP. CT. REV. 79.
144. Boerne, 117 S. Ct. at 2168.
145. See Camps Newfound/Owatonna, Inc. v. Harrison, 117 S. Ct. 1590 (1997).
146. See U.S. CONST. art. I, § 8, cl. 3 ("Congress shall have power . . . [t]o regulate Commerce . . . among the several States . . . .").
147. See, e.g., Philadelphia v. New Jersey, 437 U.S. 617, 622-23 (1978) (declaring unconstitutional a New Jersey statute prohibiting importation of waste originating outside state territorial limits). Justice Stewart, writing for the Court, acknowledged the structural origins of the dormant Commerce Clause: [Interstate commerce is] open to control by the States so long as they act within the restraints imposed by the Commerce Clause itself. . . . The bounds of these restraints appear nowhere in the words of the Commerce Clause, but have emerged gradually in the decisions of this Court giving effect to its basic purpose. Id. (citation omitted) (emphasis added).
148. See, e.g., H.P. Hood & Sons v. DuMond, 336 U.S. 525, 539 (1949) (holding that a state may not promote its own local economic advantages by curtailing the volume of interstate commerce). The Court stated: Our system, fostered by the Commerce Clause, is that every farmer and every craftsman shall be encouraged to produce by the certainty that he will have free access to every market in the Nation, that no home embargoes will withhold his exports, and no foreign state will by customs duties or regulations exclude them. Likewise, every consumer may look to the free competition from every producing area in the Nation to protect him from exploitation by any. Such was the vision of the Founders; such has been the doctrine of this Court which has given it reality. Id.
149. 117 S. Ct. 1590 (1997).
150. Id. at 1594.
151. Id.; see also id. at 1594 n.2 (quoting the text of the statute, ME. REV. STAT. ANN., tit. 36, § 652 (1)(a) (West Supp. 1996)).
152. See id. at 1594-95.
153. Id. at 1595.
154. See id.
155. Id. at 1604,
156. Id.
157. Id. at 1605 (citations omitted).
158. Id. The Court rejected the town's attempt, based on the Court's statements in West Lynn Creamery, Inc. v. Healy, 512 U.S. 186 (1994), that "[a] pure subsidy funded out of general revenue ordinarily imposes no burden on interstate commerce, but merely assists local business," West Lynn Creamery, 512 U.S. at 199, and the Court's admission in the same case that it had "never squarely confronted the constitutionality of subsidies," id. at 199 n. 15, to argue that the economic realities of an exemption were the same as those of a subsidy. Relying on previous case law, and little else, the Court saw "no reason to depart from [the traditional distinction between subsidies and exemptions]." Camps Newfound, 117 S. Ct. at 1606.
159. The Court has recognized a limited exception to the dormant Commerce Clause when states undertake to purchase goods or services as a "market participant" as opposed to a "market regulator," the theory being that when a state acts in the marketplace, it may set the terms on which it purchases goods or services like any other economic actor. See, e.g., White v. Massachusetts, 460 U.S. 204 (1983); Reeves, Inc. v. Stake, 447 U.S. 429 (1980); Hughes v. Alexandria Scrap Corp., 426 U.S. 794 (1976); Dan T. Coenen, Untangling the Market-Participant Exception to the Dormant Commerce Clause, 88 MICH. L. REV. 395 (1989). The primary obstacle to Maine's market participant argument was the Court's recent opinion in New Energy Co. of Indiana v. Limbach, 486 U.S. 269 (1988), in which the Court struck down a discriminatory state tax credit for ethanol. Though recognizing that a tax exemption "had 'the purpose and effect of subsidizing a particular industry, as do many dispositions of the tax laws,'" Camps Newfound, 117 S. Ct. at 1607 (quoting Limbach, 486 U.S. at 277), the Court concluded that the "'assessment and computation of taxes [is] a primeval governmental activity.'" Id. (quoting Limbach, 486 U.S. at 277). "A tax exemption," Stevens summarized, "is not the sort of direct state involvement in the market that falls within the market-participation doctrine." Id.
160. 22 U.S. (9 Wheat.) 1, 224 (1824) (Johnson, J., concurring). Recall that while Chief Justice Marshall skirted the question whether the Commerce Clause divested all state power over commerce, as argued by Daniel Webster, Justice Johnson embraced Webster's argument. See CHARLES F. HOBSON, THE GREAT CHIEF JUSTICE: JOHN MARSHALL AND THE RULE OF LAW 143, 146 (1996); SMITH, supra note 17, at 480.
161. Camps Newfound, 117 S. Ct. at 1595-96 (citations omitted).
162. See Printz, 117 S. Ct. at 2393-95 (Stevens, J., dissenting).
163. See, e.g., id. at 2395 (Stevens, J., dissenting) ("Recent developments demonstrate that the political safeguards protecting Our Federalism are effective.").
164. See U.S. CONST. art. I, § 8, cl. 3.
165. See Camps Newfound, 117 S. Ct. at 1608 (Scalia, J., dissenting).
166. See, e.g., Tyler Pipe Indus. v. Department of Revenue, 483 U.S. 232, 259-65 (1987) (Scalia, J., dissenting) (stating that the Court's application of the doctrine has "made no sense").
167. See, e.g., West Lynn Creamery, Inc. v. Healy, 512 U.S. 186, 210 (1994) (Scalia, J., concurring). Scalia would also invalidate, in the interest of stare decisis, state laws that are identical to those the Court found unconstitutional in previous cases. See id.
168. See, e.g., 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 589 (Max Farrand ed., rev. ed. 1966) (James Madison, responding that if states should attempt to levy duties on imports or exports not "absolutely necessary" to carry out their inspection fees in violation of the Import-Export Clause, then the "jurisdiction of the Supreme Court" would be a "source of redress"); Letter from James Madison to J.C. Cabell (Feb. 13, 1829), reprinted in 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 478 (writing that the Commerce Clause "grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventative provision against injustice among the States themselves").
169. See, e.g., 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 589 (Max Farrand ed., rev. ed. 1966) (James Madison, responding that if states should attempt to levy duties on imports or exports not "absolutely necessary" to carry out their inspection fees in violation of the Import-Export Clause, then the "jurisdiction of the Supreme Court" would be a "source of redress"); Letter from James Madison to J.C. Cabell (Feb. 13, 1829), reprinted in 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 478 (writing that the Commerce Clause "grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventative provision against injustice among the States themselves").
170. See U.S. CONST. art. I, § 10 (listing Congress's powers that are forbidden to states); see also LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 6-2 (2d ed. 1988) ("Occasionally, the Framers' failure to employ explicit words of exclusion has seemed somewhat puzzling."); FEDERALIST No. 32, at 197 (Alexander Hamilton) (Clinton Rossiter ed., 1961). In the Federalist No. 32, Hamilton attempts to assuage state fears about the loss of sovereignty affected by the Constitution's adoption. In only three cases, Hamilton maintains, would states "alienate" their sovereignty: (1) where the federal government was granted exclusive authority in express terms - for example, Congress's exclusive authority over the seat of government; (2) where there is an express grant to Congress and a concomitant explicit proscription of the states' power - for example, Congress's power to lay and collect taxes, imposts and duties and the Import-Export Clause; and (3) where the authority was granted and concurrent exercise of the power "would be absolutely and totally contradictory and repugnant" - for example, Congress's duty to prescribe uniform regulations for immigration and naturalization. See id. at 198-99. One could construe Hamilton's neglect of the Commerce Clause as an admission that concurrent regulation between Congress and the states did exist.
171. See U.S. CONST. art. I, § 10 (listing Congress's powers that are forbidden to states); see also LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 6-2 (2d ed. 1988) ("Occasionally, the Framers' failure to employ explicit words of exclusion has seemed somewhat puzzling."); FEDERALIST No. 32, at 197 (Alexander Hamilton) (Clinton Rossiter ed., 1961). In the Federalist No. 32, Hamilton attempts to assuage state fears about the loss of sovereignty affected by the Constitution's adoption. In only three cases, Hamilton maintains, would states "alienate" their sovereignty: (1) where the federal government was granted exclusive authority in express terms - for example, Congress's exclusive authority over the seat of government; (2) where there is an express grant to Congress and a concomitant explicit proscription of the states' power - for example, Congress's power to lay and collect taxes, imposts and duties and the Import-Export Clause; and (3) where the authority was granted and concurrent exercise of the power "would be absolutely and totally contradictory and repugnant" - for example, Congress's duty to prescribe uniform regulations for immigration and naturalization. See id. at 198-99. One could construe Hamilton's neglect of the Commerce Clause as an admission that concurrent regulation between Congress and the states did exist.
172. See U.S. CONST. art. I, § 10 (listing Congress's powers that are forbidden to states); see also LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 6-2 (2d ed. 1988) ("Occasionally, the Framers' failure to employ explicit words of exclusion has seemed somewhat puzzling."); FEDERALIST No. 32, at 197 (Alexander Hamilton) (Clinton Rossiter ed., 1961). In the Federalist No. 32, Hamilton attempts to assuage state fears about the loss of sovereignty affected by the Constitution's adoption. In only three cases, Hamilton maintains, would states "alienate" their sovereignty: (1) where the federal government was granted exclusive authority in express terms - for example, Congress's exclusive authority over the seat of government; (2) where there is an express grant to Congress and a concomitant explicit proscription of the states' power - for example, Congress's power to lay and collect taxes, imposts and duties and the Import-Export Clause; and (3) where the authority was granted and concurrent exercise of the power "would be absolutely and totally contradictory and repugnant" - for example, Congress's duty to prescribe uniform regulations for immigration and naturalization. See id. at 198-99. One could construe Hamilton's neglect of the Commerce Clause as an admission that concurrent regulation between Congress and the states did exist.
173. 116 S. Ct. 1620 (1996) (holding that a Colorado amendment prohibiting all legislative, executive, or judicial action designed to protect homosexuals from discrimination violated the U.S. Constitution's Equal Protection Clause).
174. Of course, penumbral reasoning's fair weather friends are not strictly limited to the Court "conservatives." As has been shown, Justice Stevens is similarly selective in his application of penumbral reasoning, rejecting it when doing so suggests conclusions with which he cannot agree. See supra notes 103-12 and accompanying text.
175. Stuart Taylor, Jr., Is Judicial Restraint Dead?, LEGAL TIMES, July 29, 1996, at S25. Taylor faulted Kennedy's opinion for being "rooted neither in original meaning nor in precedent, and provid[ing] little guidance for future controversies." Id.
176. See Evans v. Romer, 854 P.2d 1270 (Colo. 1993), aff'd, 116 S. Ct. 1620 (1996).
177. See United States Supreme Court Amicus Brief, Romer v. Evans, 116 S. Ct. 1620 (1996) (No. 94-1039) (written by Laurence H. Tribe, John Hart Ely, Gerald Gunther, Philip B. Kurland, and Kathleen M. Sullivan as Amici Curiae in Support of Respondents). For an account of Tribe's motivation for filing the brief, see Jeffrey Toobin, Supreme Sacrifice, NEW YORKER, July 8, 1996, at 43, 44-45.
178. See Romer, 116 S. Ct. at 1627-29.
179. Id. at 1623 (quoting Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting)).
180. Id.
181. See id.
182. United States Dep't of Agric. v. Moreno, 413 U.S. 528, 534 (1973) (finding unconstitutional a classification in the Food Stamp Act that excluded from participation in stamp program any household containing unrelated persons).
183. Romer, 116 S. Ct. at 1628.
184. Id. (citations omitted) (internal quotation marks omitted).
185. See supra note 17 (discussing Marshall's lack of citation to cases and precedent in favor of reasoning from general principles).
186. Romer, 116 S. Ct, at 1628.
187. See U.S. CONST. art. I, § 2 ("The House of Representatives shall be composed of Members chosen every second Year by the People of the several States . . . ." (emphasis added)).
188. See U.S. CONST. art. I, § 4 ("The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof . . . ." (emphasis added)).
189. U.S. CONST. amend. I. This notion that the branches of government should be open to the citizens is echoed in Article III, which declares that the "judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made . . . under their Authority," as well as other cases specifically enumerated therein. U.S. CONST. art. III, § 2, cl. 1 (emphasis added).
190. U.S. CONST. art. IV, § 4.
191. See generally Hans A. Linde, When Initiative Lawmaking Is Not "Republican Guvernment": The Campaign Against Homosexuality, 72 OR. L. REV. 19 (1993) (discussing initiative campaign and ultimate defeat of Oregon's proposed "Measure 9" that was aimed against rights of homosexuals).
192. Romer v. Evans, 116 S. Ct. 1620, 1628 (1996).
193. See U.S. CONST. art. I, § 9, cl. 3 ("No Bill of Attainder or ex post facto Law shall be passed."); U.S. CONST. art. I, § 10, cl. 1 ("No State shall . . . pass any Bill of Attainder, [or] ex post facto Law . . . ."). Conversely, the Constitution also forbids the passage of laws that single out classes of citizens for more favorable treatment. See U.S. CONST. art. I, § 9, cl. 7 ("No Title of Nobility shall be granted by the United States . . . ."); U.S. CONST. art. I, § 10, cl. 1 ("No State shall . . . grant any Title of Nobility.").
194. See U.S. CONST. art. I, § 10, cl. 1 ("No State shall . . . pass any . . . Law impairing the Obligation of Contracts . . . .").
195. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803).
196. See Akhil Reed Amar, Attainder and Amendment 2: Romer's Rightness, 95 MICH. L. REV. 203, 203-04 (1996) ("[T]he sociology and principles underlying the Attainder Clause powerfully illuminate the facts of Romer, the opinions in Romer, and the spirit of the Equal Protection Clause itself."). See generally Daniel Farber & Suzanna Sherry, The Pariah Principle, 13 CONST. COMMENTARY 257 (1996) (concluding that, despite contrary assertions, Romer does not significantly expand current law regarding "suspect" classifications).
197. See Romer, 116 S. Ct. at 1637 (Scalia, J., dissenting) (stating that the Court has "invent[ed] a novel and extravagant constitutional doctrine," and that the Court's opinion "has no foundation in American Constitutional law").
198. Id. at 1629 (Scalia, J., dissenting). This was essentially the same point made by Justice Stevens in his dissent in Printz. Given the fact that Members of Congress are elected by the people of the several States . . . it is quite unrealistic to assume that they will ignore the sovereignty concerns of their constituents. It is far more reasonable to presume that their decisions to impose modest burdens on state officials from time to time reflect a considered judgment that the people in each of the States will benefit therefrom. Printz v. United States, 117 S. Ct. 2365, 2394 (1997) (Steveas, J., dissenting).
199. Romer, 116 S. Ct. at 1634 (Scalia, J., dissenting).
200. Id. at 1637 (Scalia, J., dissenting). Scalia argued that "[n]o principle set forth in the Constitution, nor even any imagined by this Court in the past 200 years, prohibits what Colorado has done here." Id. at 1633 (Scalia, J., dissenting).
201. See Amar, supra note 177, at 228-29 (noting Justice Scalia's "stinging" dissents in Romer and other cases).
202. See Stuart Taylor, Jr., The Upside of Judicial Activism, LEGAL TIMES, July 7, 1997, at 19 (asserting that Court decisions in the last Term demonstrate the irrelevance of labels like "liberal" and "conservative"). The divisions present in Court doctrine today more closely resemble those present in the early nineteenth century Court between nationalists and "republicans," than they do the "liberals" and "conservatives" of the Warren Court era, or even the New Deal Court. To the extent we need labels, "nationalist" and "neorepublican" are more apt.
203. Reynolds, supra note 3, at 1346.
204. On the latter, see generally Polly J. Price, Term Limits on Original Intent?: An Essay on Legal Debate and Historical Understanding, 82 VA. L. REV. 493 (1996) (arguing that the historical support for the majority's decision in Thornton was not clear). Professor Price concludes her interesting essay with an admonition: The majority opinion in Thornton is difficult to reconcile with almost any version of originalism, though it sought refuge there. The majority could have said, explicitly, that if the text of the Constitution provides no answer, and the participants in the ratification debates are silent, then the Court is justified to draw from "democratic principles" to interpret the text. . . . Stated differently, the outcome reached by the majority in Thornton could be important within our constitutional framework for reasons other than historical accuracy . . . . . . . Ultimately, Thornton instructs us that we must take great care when approaching perplexing historical questions, particularly those with constitutional significance. It cautions our quest for a unanimous, coherent view of our constitutional history. More importantly, it cautions us against asking the question in a way that the Framers would not have understood. Id. at 533.
205. See, e.g., Bolling v. Sharpe, 347 U.S. 497 (1954) (interpreting the Fifth Amendment's guarantee of "due process of law" to include an "equal protection component" despite the absence of an equal protection clause similar to that present in the Fourteenth Amendment).
206. But see BLACK, supra note 10, at 29; ELY, supra note 186, at 1.
207. For an interesting book urging courts to utilize the nondelegation doctrine, see generally DAVID SCHOENBROD, POWER WITHOUT RESPONSIBILITY: HOW CONGRESS ABUSES THE PEOPLE THROUGH DELEGATION (1993).
208. U.S. CONST. art. IV, § 4 ("The United States shall guarantee to every State . . . a Republican Form of Government . . . .").
209. This is true despite Justice O'Connor's praise of the Guarantee Clause in New York v. United States, 505 U.S. 144, 183-85 (1992) (noting that the "limited holding" of Luther v. Borden, 48 U.S. 1 (1849), over the next century, "metamorphosed into the sweeping assertion that '[v]iolation of the great guaranty of a republican form of government in States cannot be challenged in the courts'" (quoting Colegrove v. Green, 328 U.S. 549, 556 (1946))).