It’s easy for conservatives to view with delight all seven of the major Supreme Court decisions since 1992 that have breathed new life into states’ rights. It’s also easy for liberals to view them with dismay.
     
The Court’s own alignments invite ideological polarization: Every one of these states’ rights rulings has been decided by the same 5-4 vote, with the more conservative Justices in the majority and the more liberal ones in dissent.

Still, there is persuasive support among scholars for the view that neither the stock liberal nor the stock conservative approach to issues of federalism has a monopoly on wisdom.

Harvard Law School professor Laurence H. Tribe, a leading liberal, and his conservative colleague Charles Fried, the former Reagan Administration solicitor general, disagree on many things, including some aspects of the Court’s seven-year march down the states’ rights road.

But Tribe and Fried agree on this much: The Court has been on the right track in some of its rulings advancing states’ rights and curbing congressional powers, but has gone too far in others. The Court’s mistakes (in their view, and mine) include the three big June 23 decisions barring most private lawsuits that seek money damages for state violations of acts of Congress — even in cases in which the states have chosen to become competitors in the commercial marketplace, and in which their immunity amounts to an unfair advantage over private competitors, if not an invitation to lawless conduct.

The battle over the relative rights and powers of the state and federal governments has a long and complex history. Both the Constitution and the constitutional amendments that followed the Civil War were assertions of federal supremacy over the states. But neither made the federal government the kind of omnipotent, centralized repository of all governmental powers that the Framers saw as a formula for tyranny.

Rather, a sphere of state sovereignty was reserved — along with ample room for argument about how broad it should be. The writings of various Framers and the reasoning of various Supreme Court precedents provide ammunition for both sides in the Justices’ current debates, as will be apparent to anyone who slogs through the hundreds of pages of prose that have been churned out in federalism cases over the past seven years.

These cases have clustered around three overlapping questions: What constitutional limits remain on congressional power 1) to regulate private conduct in areas traditionally governed by state law; 2) to command the states to use their own powers and resources to carry out federal regulatory schemes; and 3) to impose monetary liabilities on the states for violating federal laws that are properly binding on the states?

The first question was posed by United States vs. Lopez, in 1995, in which Chief Justice William H. Rehnquist held for the Court that Congress had unconstitutionally exceeded its power to regulate interstate commerce, and had thus usurped the powers of the states, when it banned possession of guns within 1,000 feet of a school.

This was the first decision since 1935 striking down an act of Congress as exceeding its commerce power. Congress and the Court had stretched that power since the late New Deal to authorize the creation of a vast federal regulatory edifice covering many activities with rather indirect and remote effects on interstate commerce. But without challenging those precedents, Rehnquist held that this statute was too great a stretch, because the activity criminalized by Congress — possessing a gun near a school — was not "commerce" in even the broadest sense of the word. To uphold this statute would make a dead letter of the Framers’ postulate that (in the words of James Madison) the "powers delegated… to the federal government are few and defined."

That postulate is spelled out in the 10th Amendment, which states: "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."

The dissenters in Lopez argued that the judiciary should not second-guess congressional judgments that specified activities have sufficient effects on interstate commerce to warrant national regulation, and that this statute was valid because guns threaten education, which is vital to economic prosperity, which in turn fuels interstate commerce.

But it was telling that the Lopez dissenters’ view of the commerce power was so unbounded that they could imagine no activity that Congress lacks power to regulate. And in the words of Tribe, Lopez was "probably right" because to "permit Congress to regulate anything and everything that in any way relates to or affects commerce [would] essentially reject the principle of limited national authority embodied in the Tenth Amendment and in the structure and history of the Constitution as a whole."

In other words, in Lopez, the Court’s conservatives had the better of the argument.

The same was probably true, in my opinion, in the two decisions barring Congress from commanding state governments to use their own powers and resources to carry out federal regulatory schemes. The first case, New York vs. United States, in 1992, involved an act of Congress requiring state legislatures to provide for disposal of low-level radioactive waste. The second, Printz vs. United States, in 1997, involved a (since- expired) provision of the Brady gun control act of 1993 requiring state and local law enforcement officials to conduct background checks on handgun purchasers.

In the words of Justice Antonin Scalia’s opinion for the Court in Printz: "We held in New York that Congress cannot compel the states to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the state’s officers directly."

That seems right to me (although Tribe has his doubts about Printz) both because "such commands are fundamentally incompatible with our constitutional system of dual sovereignty," as Scalia put it, and because "Congress too often prefers to make state and local officials take the heat of making and paying for the unpopular decisions" on matters such as dumping radioactive waste, as Charles Fried put it in a New York Times op-ed piece.

But the third group of federalism decisions — those expanding the "sovereign immunity" of states from lawsuits for money damages — seems far more questionable. They deprive individuals of the most useful remedies against states that have violated their rights under federal statutes that the Court itself has held (and still holds) to be fully binding on the states.

First came the 1996 ruling in Seminole Tribe vs. Florida, which held broadly that, with the exception of laws enforcing the 14th Amendment’s civil rights guarantees, federal courts cannot entertain individual damage lawsuits against states unless a state consents. Then, this June 23, came Alden vs. Maine, which extended the Seminole Tribe ruling by barring the use of state courts to bring damage suits against states that violate federal laws. The same day, in two decisions growing out of a lawsuit by College Savings Bank (of New Jersey) against a Florida state agency, the Court shielded states from damage lawsuits for violating the rights of patent and trademark owners.

One flaw in these decisions is that they expand states’ immunities far beyond anything required by the text of the Constitution. The 11th Amendment, the most directly applicable provision, bars federal courts (not state courts) only from hearing suits against states by citizens of other states. Nothing in it explicitly bars federal courts from hearing damage suits against a state by its own citizens, or bars state courts from hearing damage suits against a state by anyone.

The Court’s conservative majority nonetheless claimed that the structure and original meaning of the Constitution implicitly endow states with a sovereign immunity far broader than that specified by the document’s text. This sort of creative interpretation provokes snickering from liberals, who are used to being scolded by conservatives for invoking emanations and penumbras from the Constitution to invent new individual rights. And because interpretations of the Constitution’s "structure" are at best "slippery and easily overextended," as Fried suggests, the Court should, before adopting them, at least "ask that they make sense."

In these decisions, the Court did not question the states’ legal obligations to comply with federal wage and hour laws and to respect private patent and trademark rights. But it cut off the usual remedies — damage lawsuits — for people aggrieved by state violations of these laws. And that does not make much sense.