Boalt Hall Associate Dean Goodwin H. Liu has been nominated to serve on the 9th Circuit Court of Appeals. Some readers and Senators may be interested in his viewpoint on Second Amendment and other constitutional issues related to firearms policy. So here?s an excerpt from his article Separation Anxiety: Congress, The Courts, And The Constitution, 91 Georgetown Law Journal 439 (Jan. 2003). Liu?s co-author on the article is Senator Hillary Rodham Clinton. The article is based on a 2002 speech that Senator Clinton presented at Georgetown, sponsored by the American Constitution Society. Senator Clinton and Professor Liu criticize recent Supreme Court decisions declaring two federal gun control laws unconstitutional:
what we *445 have seen in recent years gives me pause. It is tempting to believe that the body politic cannot help but scratch a thirty-year itch for constitutional change. But the fact is that the body politic has played no significant role in the changes afoot today. Those changes have come directly from the courts in a series of rulings that have effectively worked to exclude the body politic from the ongoing search for constitutional meaning.
he Court decisions to which I am referring have been handed down so recently that most Americans have had little opportunity to step back and take stock of what has happened. But let me try to offer a quick summary. No fewer than seven times in the last seven Terms, the Supreme Court has invalidated part of a federal statute on the ground that Congress exceeded its power to regulate commerce, its power to enforce the Fourteenth Amendment, or its inherent power within our system of ?dual sovereignty.? [FN33] Those statutes include the Gun-Free School Zones Act, [FN34] the Religious Freedom Restoration Act, [FN35] the Brady Handgun Violence Prevention Act, [FN36] the Trademark Remedy Clarification Act, [FN37] the Age Discrimination in Employment Act, [FN38] the Violence Against Women Act, [FN39] and the Americans with Disabilities Act. [FN40]
These cases take up hundreds of pages of the U.S. Reports, and I will not pretend to be an expert on their doctrinal details. But let me share a few thoughts on why I find their trajectory a cause for concern.
First, it is important to put the Court?s recent activity into historical perspective. United States v. Lopez, the 1995 case that said that Congress cannot make it a crime to knowingly possess a gun within 1,000 feet of a school, [FN41] was the first time in sixty years that the Court had imposed a substantive limit on what Congress can and cannot do under the Commerce Clause. Echoing a prophecy stated in an earlier era, the Court warned that if the law were upheld, then ?there never will be a distinction between what is truly national and what is truly local.? [FN42]
Five years later, in United States v. Morrison, the Court held that Congress *446 had no power to give Christy Brzonkala, a Virginia college student raped by two of her classmates, a federal civil remedy for gender-motivated violence. [FN43] Morrison was decided during the same Term as Kimel v. Florida Board of Regents, which held that state employers guilty of age discrimination cannot be sued for damages in federal court, despite a federal statute that says they can. [FN44] Building on Kimel, the Court in Trustees of the University of Alabama v. Garrett held that state employees wronged by discrimination based on disability cannot sue their employers for damages in federal court, even though the Americans with Disabilities Act says they can. [FN45] This trio of decisions?Morrison, Kimel, and Garrett?represents the first time since Reconstruction that the Court has limited Congress?s power to combat discrimination. [FN46] And it remains unclear just how far the Court will go. [FN47]
Beyond the damage that these cases do to civil rights, and the fact that they upset settled understandings of congressional power, what is troubling about them is that they do not occur at a time in our Nation?s history when there is a significant public clamor for a different constitutional vision. To be sure, there has been a general tendency in recent decades in favor of a smaller role for national government, although many have rethought such notions in the wake of September 11th. [FN48] But more importantly, the recently invalidated statutes themselves provide compelling evidence that the American people are not the true wizards behind the Court?s velvet curtain.
The Gun-Free School Zones Act passed the House by a vote of 313 to 1; it cleared the Senate by unanimous consent. [FN49] The Violence Against Women Act was part of a bill that passed the Senate 95 to 4; in the House, 421 Members voted for the Act and not a single Member voted against it. [FN50] The Age Discrimination in Employment Act passed the House 381 to 38 and cleared the Senate by a vote of 93 to 5. [FN51] Finally, the Americans with Disabilities Act?heralded as a model of bipartisan legislation?passed the House 403 to 20 and *447 passed the Senate 76 to 8. [FN52]
But even more astounding than the Court?s willingness to override commonsense legislation with such broad support is its eagerness to do so in terms which are deliberately designed to exclude Congress?and by extension, the American people?from playing a part in defining what the Constitution requires and what it permits. [FN53] The recent cases do not pretend to be opening arguments in a longer debate. Instead, they are self-conscious pronouncements asserting the Court?s authority to be the sole and final arbiter of constitutional meaning. [FN54] More and more, it seems, Congress and the American people, by extension, are regarded by the Court as mere targets of judicial discipline, unable to live and govern themselves within ?judicially enforceable outer limits.? [FN55]
The Court may have the final say on constitutional interpretation, but I do not see any reason why it should have the only say. [FN56] The current Court?s palpable distrust of Congress stands in sharp contrast to the Framers? faith in the ability of the political process to distribute power and restrain its exercise. As the Court itself observed fewer than two decades ago, ?the Framers chose to rely on a federal system in which special restraints on federal power over the States *448 inhered principally in the workings of the National Government itself, rather than in discrete limitations on the objects of federal authority.? [FN57] Indeed, James Madison noted that the composition of my institutional home, the United States Senate, is ?at once a constitutional recognition of the portion of sovereignty remaining in the individual States, and an instrument for preserving that residuary sovereignty.? [FN58] Echoing Madison, the Court, speaking through Justice Blackmun, has said that ?[s]tate sovereign interests ... are more properly protected by procedural safeguards inherent in the structure of the federal system than by judicially created limitations on federal power.? [FN59]
When the Constitution says that Congress shall have power ?to regulate commerce ... among the several States,? [FN60] does that not suggest that Congress has some role in determining what counts as interstate commerce? When the Constitution says that Congress shall have power to enforce the Equal Protection Clause, [FN61] does that not suggest that Congress has some role in determining what ?equal protection? means?or at least some role in determining how ?equal protection,? as defined by the Court, should be enforced? The Court?s recent opinions seem to say no. In the eyes of the Court, whatever Congress may think the Constitution permits or requires does not seem to count for much. [FN62]
The net result is that Congress is now left to navigate a doctrinal minefield of magic words. The next time I consider a bill to protect endangered species, should I ask whether spotted owls ?substantially affect interstate commerce?? [FN63] The next time I consider school safety legislation, should I wonder whether school safety is ?truly national? or ?truly local?? [FN64] And as I work on hate crimes legislation or a bill to ban workplace discrimination based on sexual orientation, how can I be sure it is a ?congruen[t] and proportional? response to a constitutional wrong before I hear the answer from the other side of Constitution Avenue? [FN65]
These questions begin to give you some idea of the anxiety I feel about the Court?s unilateral effort to redefine the separation of powers in our national *449 government. Beyond raising new questions about the constitutionality of substantive legislation, the Court has sought to minimize the significance of Congress?s views on those very constitutional questions.
One would like to believe that the imperial tendencies of the current Court reflect at least a coherent, even if undemocratic and ahistorical, theory of the proper balance between state and federal power. To be sure, part of the Court?s new federalism seems to have an inexorable logic of its own, however unfaithful to constitutional text, structure, and history it may be. [FN66] But the Court?s eagerness to defend state and local prerogatives?in addition to being misguided on its own terms?is also disturbingly selective. The inconsistency is conspicuous in various areas of economic regulation, [FN67] and especially in the area of civil rights. [FN68] These cases appear to reflect a more general pattern of solicitude for economic freedom together with indifference or even hostility toward civil rights. [FN69] One commentator has described this trend as ?The New Deal Constitution in Exile,? [FN70] while another has remarked that the current Court?s primary preoccupation is not with federalism, but simply with a politically conservative ?anti-antidiscrimination agenda.? [FN71]
I cannot say for sure what is motivating this aggressive project of judicial *450 second-guessing, but it is certainly not the will of the American people. Maybe it is the Court?s own anxiety about its place in our evolving idea of Nationhood that explains its felt need to assert that ?when it comes to the Constitution, we are the ones in charge.? But at the end of the day, as I look through the lens of our Nation?s history, it is clear to me that ?We the People? must be the ones in charge. It is up to the American people to decide whether the Court?s recent adventures in revisionism will fade away or endure.
IV.
Let me conclude tonight with a call to action on two fronts. First, what we see happening in the courts today underscores how important it is that we in the Senate diligently exercise our constitutional duty to scrutinize judicial nominees?including nominees to the lower federal courts. Let us not forget that cases like Lopez and Morrison affirmed the decisions of lower-court judges who laid the groundwork for the dramatic shifts in doctrine we see today. [FN72] I applaud the efforts of my colleagues on the Senate Judiciary Committee who have done the hard work of ensuring that our federal judges are fair, disciplined, and faithful to the law. The nominations process is an important form of national dialogue on the relationship between Congress and the courts. And for each nominee, it is crucial that the Senate discharge its duty to ?advise? before it ?consents.? [FN73]
[W]hat we have seen in recent years gives me pause. . . . Those changes have come directly from the courts in a series of rulings that have effectively worked to exclude the body politic from the ongoing search for constitutional meaning.
. . .No fewer than seven times in the last seven Terms, the Supreme Court has invalidated part of a federal statute on the ground that Congress exceeded its power to regulate commerce, its power to enforce the Fourteenth Amendment, or its inherent power within our system of ?dual sovereignty.? Those statutes include the Gun-Free School Zones Act, the Religious Freedom Restoration Act, the Brady Handgun Violence Prevention Act, the Trademark Remedy Clarification Act, the Age Discrimination in Employment Act, the Violence Against Women Act, and the Americans with Disabilities Act.
. . .
United States v. Lopez, the 1995 case that said that Congress cannot make it a crime to knowingly possess a gun within 1,000 feet of a school, was the first time in sixty years that the Court had imposed a substantive limit on what Congress can and cannot do under the Commerce Clause. Echoing a prophecy stated in an earlier era, the Court warned that if the law were upheld, then ?there never will be a distinction between what is truly national and what is truly local.?
[Paragraph on United States v. Morrison, Kimel v. Florida Board of Regents, and Alabama v. Garrett.]
Beyond the damage that these cases do to civil rights, and the fact that they upset settled understandings of congressional power, what is troubling about them is that they do not occur at a time in our Nation?s history when there is a significant public clamor for a different constitutional vision. To be sure, there has been a general tendency in recent decades in favor of a smaller role for national government, although many have rethought such notions in the wake of September 11th. But more importantly, the recently invalidated statutes themselves provide compelling evidence that the American people are not the true wizards behind the Court?s velvet curtain.
The Gun-Free School Zones Act passed the House by a vote of 313 to 1; it cleared the Senate by unanimous consent. . . .
But even more astounding than the Court?s willingness to override commonsense legislation with such broad support is its eagerness to do so in terms which are deliberately designed to exclude Congress?and by extension, the American people?from playing a part in defining what the Constitution requires and what it permits. The recent cases do not pretend to be opening arguments in a longer debate. Instead, they are self-conscious pronouncements asserting the Court?s authority to be the sole and final arbiter of constitutional meaning. More and more, it seems, Congress and the American people, by extension, are regarded by the Court as mere targets of judicial discipline, unable to live and govern themselves within ?judicially enforceable outer limits.?
The Court may have the final say on constitutional interpretation, but I do not see any reason why it should have the only say. . . .
When the Constitution says that Congress shall have power ?to regulate commerce ... among the several States,? does that not suggest that Congress has some role in determining what counts as interstate commerce? . . . The Court?s recent opinions seem to say no. In the eyes of the Court, whatever Congress may think the Constitution permits or requires does not seem to count for much.
The net result is that Congress is now left to navigate a doctrinal minefield of magic words. . . . The next time I consider school safety legislation, should I wonder whether school safety is ?truly national? or ?truly local?? And as I work on hate crimes legislation or a bill to ban workplace discrimination based on sexual orientation, how can I be sure it is a ?congruen[t] and proportional? response to a constitutional wrong before I hear the answer from the other side of Constitution Avenue?
These questions begin to give you some idea of the anxiety I feel about the Court?s unilateral effort to redefine the separation of powers in our national government. Beyond raising new questions about the constitutionality of substantive legislation, the Court has sought to minimize the significance of Congress?s views on those very constitutional questions.
. . .
Let me conclude tonight with a call to action on two fronts. First, what we see happening in the courts today underscores how important it is that we in the Senate diligently exercise our constitutional duty to scrutinize judicial nominees?including nominees to the lower federal courts. Let us not forget that cases like Lopez and Morrison affirmed the decisions of lower-court judges who laid the groundwork for the dramatic shifts in doctrine we see today. [FN72] I applaud the efforts of my colleagues on the Senate Judiciary Committee who have done the hard work of ensuring that our federal judges are fair, disciplined, and faithful to the law. The nominations process is an important form of national dialogue on the relationship between Congress and the courts. And for each nominee, it is crucial that the Senate discharge its duty to ?advise? before it ?consents.?
Footnote 72 includes the following:
The Supreme Court has seen fit to rein in some of the most activist lower-court decisions. . . . But additional cases continue to test the limits. See, e.g., United States v. Emerson, 270 F.3d 203, 227?29 (5th Cir. 2001) (agreeing with district court that Second Amendment confers an individual right to bear arms, notwithstanding contrary indications in United States v. Miller, 307 U.S. 174, 178 (1939)).
