Our federal courts are currently undergoing "[t]his century's third and final era of judicial activism."⁽¹⁾ The animating impulse of this "contemporary activism is an interest in reviving the structural guarantees of dual sovereignty,"⁽²⁾ that is, in protecting the vitality of states as "entities having residual sovereign rights." The judicially targeted threat to these "residual sovereign rights"⁽³⁾ is the regulatory power of Congress.

This characterization of the modern era is not my own. It belongs to J. Harvie Wilkinson, chief judge of the U.S. Court of Appeals for the Fourth Circuit. It appears in his concurrence to an en banc Fourth Circuit decision, Brzonkala v. Virginia Polytechnic Institute,⁽⁴⁾ which invalidated the civil damages remedy⁽⁵⁾ for gender-based violence that was enacted by Congress as part of the Violence Against Women Act.⁽⁶⁾ Judge Wilkinson's opinion is remarkable because he not only discerns candidly the current era of judicial activism -- he embraces it. "[T]he present jurisprudence," he writes, "holds the promise to be an enduring and constructive one."⁽⁷⁾

Pragmatist that he is, Judge Wilkinson goes on to caution that the potential of the current era will be lost unless the courts "temper" their role in second-guessing federal legislation "by . . . maxims of prudence and restraint."⁽⁸⁾ "If modern activism accelerates to a gallop," Judge Wilkinson warns, "then this era will go the way of its discredited forebear,"⁽⁹⁾ namely, the widely deplored heyday of economic substantive due process following Lochner v. New York.⁽¹⁰⁾ Judge Wilkinson's cautionary notes aside, it is worth beholding his opinion as among the very few ever written in which the author actually welcomes the title, "Judicial Activist."

Judge Wilkinson's opinion has done American constitutionalism a favor. For a conservative judge to admit that judicial activism can make "an enduring and constructive" contribution to our constitutional jurisprudence may significantly change the framework within which judicial activism and restraint are usually debated. His perspective should promote a genuine and thorough reevaluation of that debate. And, on this most general of levels, I endorse Judge Wilkinson's acknowledgment that at least some versions of judicial activism can, in principle, be constructive.

Judge Wilkinson is unjustified, however, in his optimism for the current conservative project of devising new doctrinal tools for cutting back Congress's commercial regulatory powers in order to protect the states' sovereign rights. These doctrinal tools, I believe, are overwhelmingly likely to prove unworkable. They are likely to be employed in the invalidation of national legislation that, in terms of the values of federalism, will be indistinguishable from other legislation that even current conservative judicial activists concede to be plainly constitutional. They are not justified by the current circumstances of our federal system. And, because they are likely to be employed by judges less willing than Judge Wilkinson to acknowledge their activist role forthrightly, these doctrinal maneuvers will often be dressed up in discussions of history or precedent that will be wrongheaded and misleading. All of this is well illustrated by Fourth Circuit opinion to which Judge Wilkinson concurs, an opinion whose rhetoric is a kind of negative model of how judges should not write important opinions.

Delineating the respective spheres of national and state regulatory authority has been one of the Supreme Court's most enduring preoccupations. Two of Chief Justice John Marshall's three foundational opinions -- McCulloch v. Maryland⁽¹¹⁾ and Gibbons v. Ogden⁽¹²⁾ -- focused on just this problem.⁽¹³⁾ To a significant degree, the Court's ensuing federalism jurisprudence can be regarded as the collective attempt of later generations to wrestle with the very same issues that Marshall so famously confronted.

Between 1937 and 1964, the Supreme Court decided a series of cases that, in brief, came to embody an "800-pound gorilla" theory of Congress's authority to legislate regarding "Commerce . . . among the several states."⁽¹⁴⁾ If asked what Congress might regulate pursuant to this most important of its enumerated domestic powers, a competent lawyer or law student by the mid-1960s could sensibly offer the answer, "Anything it wants."⁽¹⁵⁾ This development occurred, of course, during a period of generally expanding national regulatory authority at the expense of the states. Judicial activism in enforcing the fourteenth amendment during the 1950s and 1960s significantly displaced state and local decision making on matters of criminal procedure,⁽¹⁶⁾ civil rights,⁽¹⁷⁾ public education,⁽¹⁸⁾ election design,⁽¹⁹⁾ and social welfare.⁽²⁰⁾

Hints of a different direction clearly emerged, however, with the ascension to the Court of then-Associate Justice William H. Rehnquist, in 1972. Justice Rehnquist was hardly the first modern Justice to show sensitivity to federalism issues either in interpreting constitutional restrictions on state political authority or in evaluating the centralizing impact of national legislation. He revealed, however, an early penchant for crafting ambitious judicial opinions that creatively limited the reach of federal law-making with regard to the states. Perhaps most notable in his first two terms were opinions narrowing the concept of state action reachable by the Fourteenth Amendment,⁽²¹⁾ expanding the immunity of state officers for liability under the Eleventh Amendment,⁽²²⁾ and limiting the implications of the Court's reapportionment decisions.⁽²³⁾

Justice Rehnquist's most important opinion of the mid-1970s in terms of constraining the authority of the national government vis-a-vis states was, of course, National League of Cities v. Usery.⁽²⁴⁾ In National League of Cities, the Court turned its back on a chain of precedent holding that state sovereignty per se was not a limitation on otherwise permissible exercises of Congress's commerce powers. Specifically, the Court invalidated the application of federal minimum wage-maximum hour laws to state employees. Writing for a 5-person majority, including a hesitant Justice Blackmun, Justice Rehnquist announced that states could henceforth not be subjected even to Commerce Clause legislation that would be valid if applied to private parties, if such legislation (1) purported to regulate the "States qua States," (2) would "displace the states' freedom to structure integral operations in areas of traditional governmental functions," and (3) was not justified by an exceptionally strong federal interest that overbalanced the states' interest in autonomy.⁽²⁵⁾

Justice Rehnquist's opinion was elusive on the source of this principle. He mentioned the Tenth Amendment, but hardly discussed it.⁽²⁶⁾ He seemed instead to rest on a background understanding of state sovereignty from late 18^th century political thought, a version of state sovereignty that could not be impaired by federal legislation.⁽²⁷⁾ Unfortunately for his thesis, the late 18^th century political thought most consistent with Rehnquist's view of state sovereignty belonged to the Anti-Federalists, for whom the Constitution was a significant political defeat precisely because it did not embody their political philosophy.⁽²⁸⁾

Whatever its jurisprudential merits, National League of Cities ultimately generated more law review commentary than immunity from federal regulation. Four cases exploring the scope of National League of Cities reached the Supreme Court between 1976 and 1982, and, in each of them, the Court upheld Congress's regulatory powers.⁽²⁹⁾ In 1985, Justice Blackmun abandoned his allegiance to National League of Cities. He authored an opinion -- Garcia v. San Antonio Metropolitan Transit Authority⁽³⁰⁾ -- overturning the earlier case, on the ground that Justice Rehnquist's articulated test had proved unworkable in practice,⁽³¹⁾ inconsistent with a proper understanding of federalism principles,⁽³²⁾ and superfluous in the actual protection of state decision making authority.⁽³³⁾ In a dissent that could be read as a not-so-veiled reference to Justice Blackmun's advanced age, Justice Rehnquist wrote, "I do not think it incumbent . . . to spell out further the fine points of principle that will, I am confident, in time again command the support of the majority of this Court."⁽³⁴⁾

By this time, however, the cause of federalism had picked up an important new ally on the Court. In 1981, Justice Stewart, himself a considerable defender of state autonomy, was succeeded by Justice Sandra Day O'Connor. O'Connor brought to the job not only a strong interpretive predisposition to respect the states' political authority, but also a sophisticated intellectual perspective on the value and practice of federalism. Her dissent in Garcia is more compelling than the Rehnquist opinion in National League of Cities precisely because it at least hints at the creativity necessarily entailed in the judicial task she advocates. Unlike Justice Rehnquist, she does not write exclusively as if the Constitution itself expresses a doctrinal test of state immunity from regulation that the Court can uncover archaeologically. She explicitly acknowledges that modern economic conditions have created a world different from late 18^th C. America, implying that the Court must construct ways of giving enforceable content to the Tenth Amendment in order to protect any possibility for a meaningful diffusion of power between national and state governments.⁽³⁵⁾

If ever there were an example of losing a judicial battle, but winning the war -- or at least a larger battle -- Garcia is it. Since Garcia, the Court has launched into a three-pronged attack on congressional regulatory power that goes well beyond the scope of National League of Cities and suggests at least a potential return to what I would call the "Old Deal" with regard to the Court's treatment of federalism.⁽³⁶⁾ Under this "Old Deal," the Court prior to 1937 had shown itself willing in the name of federalism to second-guess the justifiability of national legislation and to impose categorical limits on Congress's capacity to control interstate commerce.⁽³⁷⁾ What made the return to this Old Deal possible, of course, was not merely the intellectual leadership of Chief Justice Rehnquist and of Justice O'Connor. It was also the appointment in 1992 of Clarence Thomas to succeed Justice Thurgood Marshall. Unlike other appointments of the previous two decades in which the old and new Justices tended to resemble one another in their devotion to Tenth Amendment values,⁽³⁸⁾ the appointment of Justice Thomas replaced a reliable champion of congressional authority with a Justice willing to rethink Commerce Clause doctrine all the way back to Gibbons v. Ogden.⁽³⁹⁾

The first prong of this attack has been the erection of a categorical "anti-commandeering principle" that precludes Congress from compelling state legislatures or state executive functionaries from enforcing federal law. In one case, Congress was rebuffed in its attempt to force states either to regulate nuclear waste disposal consistent with federal statutory requirements or to take ownership of all such waste within the state itself.⁽⁴⁰⁾ In another, the Court overturned legislation requiring local police to cooperate in determining whether proposed firearms sales would be lawful until such time as the federal government could complete the implementation of a computerized National Instant Check System to facilitate immediate determinations on the eligibility of would-be gun owners to buy weapons.⁽⁴¹⁾

The second prong of the attack has been the breathtaking expansion of the immunity from suit that states enjoy under the Eleventh Amendment. Under recent decisions, even if Congress may legitimately exert its regulatory powers with regard to the states, litigants may not enforce in either state or federal court the legal obligations thus imposed on the states, unless a defendant state consents to suit.⁽⁴²⁾

Both these attacks on federal regulatory power are further reaching than National League of Cities. National League of Cities would limit Congress's Commerce Clause authority only if its exercise would "displace the states' freedom to structure integral operations in areas of traditional governmental functions" and would do so without an overbalancing federal interest. In contrast, under the anti-commandeering principle and recent Eleventh Amendment cases, state autonomy is protected even where the federal mandate has no bearing on traditional governmental functions, and even when it would have no impact on the capacity of states to structure or finance their integral operations.

It is the third prong, however, that harks back to the "Old Deal" of federalism most emphatically. In United States v. Lopez,⁽⁴³⁾ the Court resurrected the notion that there is a discrete category of activity that, even if it affects interstate commerce, may not be regulated pursuant to Congress's commerce power unless a court independently determines that the effects on commerce are substantial enough to justify national legislation. The Court voided the originally enacted version of the Gun-Free School Zones Act,⁽⁴⁴⁾ which had made it a federal crime knowingly to possess a firearm within 1,000 feet of a school.

I want to say more about Lopez in a moment, especially in light of its progeny. But three preliminary points about the Supreme Court's new activism for states' rights bear noting in brief. First, the federalism cases of the '90s can hardly be defended as straightforward interpretations of the constitutional text. Second, like National League of Cities, they are based on historical interpretation that is dubious at best. Third, their public policy consequences -- especially with regard to the Eleventh Amendment cases -- are truly regrettable.

Consider the textual point. The Eleventh Amendment expressly prohibits only suits against states in federal court prosecuted "by citizens of another state, or by citizens or subjects of any foreign state." Were we to rely on plain text, the obvious implication would be that states may be sued in federal court by their own citizens and that sovereign immunity in state court is not guaranteed by the Constitution at all.

With regard to the regulation of activities affecting commerce, Congress enjoys express authority "[t]o regulate commerce . . . among the several states," as well as authority to "make all laws which shall be necessary and proper for carrying into execution" the Commerce Clause power and all of Congress's other regulatory capacities.⁽⁴⁵⁾ Nothing in the Constitution limits the sweep of this language by articulating the test of National League of Cities, the so-called anti-commandeering principle, or a distinction between Congress's competence to regulate commercial versus non-commercial activity.⁽⁴⁶⁾

With regard to history, as I have already mentioned, National League of Cities suffers the conspicuous defect of interpreting the Constitution as if it embodied chiefly the political intentions of its opponents. The anti-commandeering and Eleventh Amendment cases suffer the equally apparent problem of relying on historical analyses of inapposite issues. For example, the anti-commandeering cases seek to establish an historical foundation for the proposition that the national government was to have the power to regulate American citizens directly, rather than through the states. Proving this, however, is very different from establishing that Congress was precluded from regulating American citizens indirectly and through state governmental apparatus when it should choose to do so. With regard to the "commandeering" of state administrative authority, the evidence that does exist is chiefly in support of Congress's discretion to rely on such authority when it deems it appropriate.⁽⁴⁷⁾

The Eleventh Amendment cases try to get around the obvious textual difficulties by arguing that the Amendment was not intended to embody all of the state sovereign immunity from suit that the framers recognized. Rather, the Court has argued, there was a background understanding that states would retain immunity from suit following the ratification of the Constitution; the Eleventh Amendment merely made express the one aspect of that immunity that it was necessary to reiterate because the Marshall Court had erroneously breached that immunity.⁽⁴⁸⁾

Even if there were something to this general point, it again would be answering the wrong question. We can assume, that is, that the founding generation expected that states would retain after ratification the sovereign immunity that they had enjoyed at common law. The actual issue warranting exploration, however, is whether the founding generation would have thought it unconstitutional to overcome that immunity through federal legislation.⁽⁴⁹⁾ On that point, the available evidence again suggests that the Court's reading of congressional authority is unjustifiably narrow.⁽⁵⁰⁾

At least as troubling as these textual and historical points is that the anti-commandeering and Eleventh Amendment cases create perverse public policy outcomes. A direct implication of the anti-commandeering cases, especially with regard to the bar against conscripting state administrative authority, is that Congress should consider enlarging our national law enforcement apparatus whenever it expands the substantive reach of our national regulatory law.⁽⁵¹⁾ This would seem, on its face, to increase the threat to individual liberty stemming from national law enforcement machinery. It would seem also to multiply considerably the potential sources of tension between state and national authorities engaged in law enforcement. It is worth noting that other countries, such as Germany -- also a federal republic -- protect the values of federalism precisely by insisting that only state authorities be charged with the implementation of national law.⁽⁵²⁾ In the same vein, there may well be contexts in which American states would prefer to shoulder some of the burdens of national law enforcement if that responsibility also entailed the prospect of coordinating federal law enforcement activity with state priorities and reducing interagency friction.

The normative consequences of the Eleventh Amendment cases are even more obviously troubling. One is hard pressed to identify any public policy reason why we would prefer a constitutional regime in which the national government is permitted to impose legal obligations on the states, but in which the states are constitutionally entitled to violate those obligations with impunity. The holding in Alden v. Maine⁽⁵³⁾ deprives state employees who are unlawfully denied federally mandated overtime pay from seeking a judicial remedy. Under Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank,⁽⁵⁴⁾ states may, with impunity, violate the patent rights of private parties even when such infringement is willful. Far from advancing two of the values most often associated with federalism -- protecting citizens from the over-concentration of power and promoting the accountability of political authority -- these decisions denigrate those very values. Enlarging the prospects for oppressive state government hardly seems a project worthy of judicial solicitude.

Of the three prongs of the Supreme Court's recent activism on behalf of the states, the one that is potentially most radical is the crafting of judicially imposed constraints on the commerce power itself, as embodied in Lopez v. United States. Brzonkala, the case that elicited Judge Wilkinson's defense of federalism-based judicial activism, is an attempt to implement such constraints.⁽⁵⁵⁾Lopez and Brzonkala most pressingly pose the question whether judicial activism in the name of state sovereignty is well justified. But they also deserve to be analyzed with regard to their soundness as plausible legal doctrine.

Chief Justice Rehnquist's opinion for the five-member majority in Lopez overturned the Gun-Free School Zones Act, but did not offer any precise formulation of the constitutional limit Congress transgressed in enacting that legislation. This is not surprising. As Justice Breyer's dissent amply shows, even the original Gun-Free School Zones Act would seem to have been self-evidently valid under the usual pre-Lopez doctrinal formulation of Congress's Commerce Clause authority.⁽⁵⁶⁾ According to government reports, a disturbing percentage of high school students have been threatened with guns or have even had guns fired at them in school. Congress could have rationally concluded that the presence of guns in or near schools interferes with the educational process, resulting in the schools' reduced capacity to prepare students for effective participation in the national economy.⁽⁵⁷⁾

Chief Justice Rehnquist determined, however, that Congress had overstepped its regulatory authority. His opinion identifies three subject areas that the Supreme Court has historically permitted Congress to regulate pursuant to the Commerce Clause -- subject areas, the national control of which presumably does not obliterate the distinction between national regulatory competence and the general police power of the states. One of these categories -- the only one relevant to Lopez -- includes "activities having a substantial relation to interstate commerce."⁽⁵⁸⁾ Rehnquist argues that the Court, within this category, has routinely upheld the regulation only of economic "activities having a substantial relation to interstate commerce."⁽⁵⁹⁾ Because the 1990 Gun-Free School Zones Act did not explicitly narrow its purview to guns that, on a case-by-case basis, were shown to have either traveled in commerce or affected commerce, Justice Rehnquist implies that the statute should not enjoy the nearly automatic imprimatur that the Court attaches to statutes regulating economic activities.

Rehnquist specifically rejects the Government's proffered justifications for the Gun-Free School Zones Act. He declines to sustain the Act on the ground that guns near schools are threats in general to interstate commerce either because of their collective contribution to crime or because of the risks they pose to an educational process, which, in turn, is critical to the success of interstate commerce.⁽⁶⁰⁾ He does not deny that guns threaten interstate commerce in these ways. Rather, he offers the following observations:

The possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce. Respondent was a local student at a local school; there is no indication that he had recently moved in interstate commerce, and there is no [statutory] requirement that his possession of the firearm have any concrete tie to interstate commerce.
 

To uphold the Government's contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the states.⁽⁶¹⁾
 

The last quoted sentence echoes his earlier observation: "[I]f we were to accept the Government's arguments, we [would be] hard pressed to posit any activity by an individual that Congress is without power to regulate. . . ."⁽⁶²⁾

Rehnquist's precise argument is not altogether clear from these passages. A relatively modest interpretation of his position would argue that, based on the actual record presented, the Court found the connection in fact between gun possession near schools and interstate commerce to be too tenuous to sustain a confident conclusion that Congress's judgment in regulating gun possession on interstate commerce grounds had been rational. Even if it is rational to treat guns near schools as posing a significant risk to the educational process, and even if the national economy depends on effective education, it may simply not have been self-evident, at least to the Lopez majority, that the particular damage inflicted by the appearance of guns in schools is of the quality or quantity that bears a likely relationship to the future capacity of present-day students to be productive participants in interstate markets and enterprises. Because this view of Rehnquist's argument would emphasize the degree of care that courts should exercise in ascertaining an empirical basis for Congress's judgment, let us call this the "fact sensitivity interpretation" of Lopez.

On the other hand, it may be that what provoked the majority's anxieties about the Gun-Free School Zones Act was not really the empirical speculation embodied in the inferences that would sustain Congress's judgment. After all, the majority does not assert that the inferences adduced by the government are untrue. Rather, it may be that what is bothersome for Chief Justice Rehnquist about the Government's inferences is that equally sound inferences of an almost identical kind would go very far towards sustaining virtually any national regulation of any local activity, including all material aspects of K-12 schooling. In other words, it is not "pil[ing] inference upon inference" per se that is constitutionally problematic, but rather the accumulation of inferences that are qualitatively of a sort that would justify a great deal of other far-reaching regulation, as well. I would call this the "dual federalism interpretation" of Lopez, because it would attribute to the case not so much a sensitivity to contextual facts as a categorical intention to evict federal legislators from some exclusive domain of state policy making.

The concurring opinion by Justice Kennedy, joined by Justice O'Connor, seems to embrace the less ambitious fact-sensitivity approach to Lopez, and to imply a new Commerce Clause "test" more clearly than does the Rehnquist opinion. Kennedy writes that, "unlike the earlier cases" in which the Court has deferred to Congress, "neither the actors [regulated by Gun-Free School Zones Act] nor their conduct have a commercial character, and neither the purposes nor the design of the statute have an evident commercial nexus."⁽⁶³⁾ A logical inference is that Justices Kennedy and O'Connor would have voted to uphold the Gun-Free School Zones Act if the conduct or actors regulated were commercial or if the nexus between the conduct or actors and interstate commerce were somehow more "evident." They would seem to require only an extra level of empirical grounding to satisfy the Court's implementation of rationality review regarding the national regulation of non-commercial activities.

In explicating the doctrinal shortcomings of Lopez, I think it helpful to consider the case in tandem with Brzonkala, its predictable offspring. It is an offspring that the Supreme Court may yet disown -- the Court has granted certiorari in the case under the name United States v. Morrison.⁽⁶⁴⁾ But, whether or not the Fourth Circuit's reasoning survives Supreme Court review, it amply illustrates the doctrinal problems Lopez creates, especially if accorded a "dual federalism" interpretation.

As noted earlier, the issue in Brzonkala was the constitutionality of creating a federal damages remedy for victims of gender-based violence. The Violence Against Women Act (VAWA) established "a federal substantive right in '[a]ll persons within the United States ... to be free from crimes of violence motivated by gender.'"⁽⁶⁵⁾ Under the VAWA:

A person (including a person who acts under color of any statute, ordinance, regulation, custom, or usage of any State) who commits a crime of violence motivated by gender . . . shall be liable to the party injured, in an action for the recovery of compensatory and punitive damages, injunctive and declaratory relief, and such other relief as a court may deem appropriate.⁽⁶⁶⁾
 

In deliberating on the VAWA, "Congress carefully . . . documented the substantial effect that gender-based violence has on interstate commerce and the national economy."⁽⁶⁷⁾ Congress determined that:

crimes of violence motivated by gender have a substantial adverse effect on interstate commerce, by deterring potential victims from traveling interstate, from engaging in employment in interstate business, and from transacting with business, and in places involved, in interstate commerce ..., by diminishing national productivity, increasing medical and other costs, and decreasing the supply of and the demand for interstate products.⁽⁶⁸⁾
 

A key set of findings pertains to the economic costs of domestic violence against women. Congress found that "[o]ver 1 million women in the United States seek medical assistance each year for injuries sustained by their husbands or other partners."⁽⁶⁹⁾ This phenomenon was "estimated to cost employers '$3 to $5 billion annually due to absenteeism in the workplace,'" as well as imposing additional burdens of "$5 to $10 billion a year [spent] on health care, criminal justice, and other social costs of domestic violence."⁽⁷⁰⁾ This accounting does not even include what Congress noted as the additional "costs of lost careers, decreased productivity, foregone educational opportunities, and long-term health problems" resulting from domestic violence.⁽⁷¹⁾

Putting aside for the moment Congress's other relevant findings in support of the Act, the foregoing facts standing alone would seem to sustain the VAWA readily under pre-Lopez doctrine. In enacting the VAWA, Congress rationally concluded that acts of gender-based violence, viewed cumulatively, place a substantial burden on interstate commerce and that the availability of a civil damages remedy would both reduce the resulting economic costs for the victims of violence and deter some degree of gender-based brutality.

This is just the basis on which the Fourth Circuit dissenters would have upheld the Violence Against Women Act. Embracing what I have called the fact sensitivity approach to Lopez, they distinguish the earlier case on the plausible ground that Congress's deliberations leading to the VAWA provided the very link between regulated conduct and interstate commerce that the Court was unable to discern in Lopez.⁽⁷²⁾ Although they do not quote Justice Kennedy's dissent as precisely setting the relevant standard, the contrast the dissenters draw between the VAWA and the Gun-Free School Zones Act implicitly addresses the concurring Justices' concerns. The dissenters recount the extensive documentation offered by Congress to substantiate the nexus between gender-based violence and the economy -- documentation of a kind that Congress did not provide for the original version of the Gun-Free School Zones Act.⁽⁷³⁾

The Fourth Circuit majority, however, rejects not only this reasoning, but also the fact sensitivity orientation to Lopez. In the majority view, Lopez is a dual federalism opinion, which creates a more ambitious and more categorical rule. Namely, Congress may regulate a non-economic activity that substantially affects interstate commerce only if the activity is "sufficiently related to interstate commerce to satisfy the substantially affects test" without relying "upon arguments which, if accepted, would eliminate all limits on federal power and leave [a court] 'hard pressed to posit any activity by an individual that Congress is without power to regulate.'"⁽⁷⁴⁾ According to the majority, the VAWA fails this test because gender-based violence is non-economic activity and because the defense of its regulation relies upon arguments that "pile inference upon inference" to connect gender-based violence to interstate commerce in a manner that, if indulged, could justify federal regulation of virtually all human activity.⁽⁷⁵⁾

As it happens, I believe that Lopez was incorrectly decided, even if deemed to stand only for the fact-sensitivity approach that the Brzonkala dissenters advocate. On certiorari, however, the Supreme Court may well overturn Brzonkala on factual grounds, following the Kennedy-O'Connor approach. A majority could persuasively determine that Congress's deliberative record draws a sufficiently compelling connection between the conduct regulated and interstate commerce to verify the rationality of Congress's approach, even under a heightened standard of rationality review. That approach to Lopez is subject to the obvious criticism that what it demands from Congress, and what it is likely to elicit, is too much in the nature of a formality. It has generally been the Court's position that the constitutionality of statutes does not depend upon a set of statutory findings or on evidence that Congress's deliberations were especially thorough.⁽⁷⁶⁾ Asking judges to make fine distinctions between just how much evidence is necessary to convert plausibility into sufficient rationality for constitutional purposes is also inviting judges, in the guise of neutral decision making, to challenge the wisdom of legislative choices they are not authorized to make. Nonetheless, Lopez and Brzonkala are plainly distinguishable on this ground. And, the fact-sensitivity approach to Lopez at least has the attractive feature of not rendering that case an open-ended invitation to the federal judiciary to second-guess Congress on the justifiability of legislation whose foundations are better assessed by legislators than by judges.

Presumably, the Fourth Circuit believes it has a more accurate reading, if not of Lopez as written, then at least of the doctrine Chief Justice Rehnquist might have advocated if he were not burdened by the necessity of attracting the votes of Justices Kennedy and O'Connor. If so, the fate of Brzonkala in the Supreme Court will depend on the willingness of Justices Kennedy and O'Connor to take a more categorical stance regarding Congress's authority to regulate non-economic activity.

Under the Fourth Circuit interpretation of Lopez, lawyers cannot save the VAWA even by verifying the quantitative impact of gender-based violence on the economy.⁽⁷⁷⁾ Even if such a connection were demonstrated, it would provide the sort of rationale for the VAWA that would threaten to validate the "essentially limitless nature of congressional power."⁽⁷⁸⁾ If factual investigation is the key to constitutionality, "the only conceivable limit on congressional power to regulate an activity would be the significance of that activity, because any significant activity or serious problem will have an ultimate, though indirect, effect upon the economy, and therefore, at least presumptively, upon interstate commerce as well."⁽⁷⁹⁾ The majority purports to recognize that "Lopez undoubtedly preserves a healthy degree of judicial deference to reasonable legislative judgments of fact."⁽⁸⁰⁾ But Brzonkala effectively treats that deference as irrelevant if the pertinent "legislative judgments of fact" would, in fact, sustain any significant breadth of federal regulation with regard to local non-economic activity. The majority's concern is not with ascertaining Congress's reasonableness, but in insulating some part of the world of local health, safety, and morals regulation from congressional participation.

Even if this were a justifiable judicial project, a subject to which I will turn shortly,⁽⁸¹⁾ the interpretation of Lopez advocated by the Brzonkala majority would result in doctrine so arbitrary that it cannot have much of a future. It is a doctrine vulnerable to at least four fundamental challenges.

a. The Jurisdictional "Red Herring." The arbitrariness of Brzonkala's reading of the Commerce Clause is evident from the Fourth Circuit's express acknowledgment that, even under Lopez, non-commercial acts with a specific interstate nexus are comprehensively subject to national regulation, so long as such regulation is minimally rational.⁽⁸²⁾ The VAWA, for example, authorizes criminal punishment for any person who "travels across a State line . . .with the intent to injure, harass, or intimidate that person's spouse or intimate partner, and who, in the course of or as a result of such travel, intentionally commits a crime of violence and thereby causes bodily injury to such spouse or intimate partner."⁽⁸³⁾ But why should the addition of this interstate "jurisdictional element" make any difference to the justification for Congress's intervention? Notwithstanding the jurisdictional requirement, the criminal provisions of the VAWA still overlap with the states' police powers. It is not likely that any one act of traveling across a state line to commit domestic violence has a substantial impact on interstate commerce. Nor is there necessarily any commercial character to the act of moving interstate itself. Yet, the Brzonkala majority concedes that the "legislative record . . . supports the wisdom and legitimacy of many of the measures Congress enacted in the Violence Against Women Act, such as . . . the criminalization of violence against women with an explicit interstate nexus."⁽⁸⁴⁾ From the standpoint of protecting either federalism or interstate commerce, the majority can give no reason why the same documentation that provides normative support for the "wisdom and legitimacy" of creating a federal felony does not equally support the "wisdom and legitimacy" of creating a federal damages action. Nothing about the jurisdictional element changes the normative underpinnings of the law.⁽⁸⁵⁾

In this respect, it is noteworthy that, prior to the Supreme Court's decision in Lopez, Congress had already revised the Gun-Free School Zones Act to proscribe gun possession near schools only if the firearm in question "has moved in or … otherwise affects interstate commerce."⁽⁸⁶⁾ This amendment presumably entails an extra element of proof for federal prosecutors, but it hardly seems to limit the number of potential prosecutions or the consequent presence of the federal government in the policing of local firearms possession. Again, from the standpoint of federalism or congressional regulatory authority, the jurisdictional element adds nothing in principle to the justifiability of Congress's initiative.

b. The Irrelevant Distinction Between Commerce and Non-commerce. Second, and just as basic, it is impossible to formulate a plausible normative basis for a distinction between commercial and non-commercial activity in assessing Congress's regulatory powers from the perspective of federalism.⁽⁸⁷⁾ It is conventionally understood that the reason Congress is authorized to regulate local commerce is because local commercial activity can have a substantial relation to interstate commerce, and Congress is appropriately empowered to attend to this substantial relationship when necessary and proper either to promote interstate commerce or to prevent interstate commerce from becoming the vehicle of some social harm.⁽⁸⁸⁾

But, whatever reason justifies national regulation of local commerce as it affects interstate commerce, the same reason will pertain just as persuasively to national regulation of local non-commerce. If attending to a substantial relationship between local non-commercial activity and interstate commerce helps to promote interstate commerce, then Congress ought be allowed to regulate. If attending to that relationship would help prevent interstate commerce from becoming the vehicle of some social harm, then Congress ought be empowered to act on that basis.

Lopez and Brzonkala suggest that this is a dangerous move because federal regulation of non-commercial activity would "bid fair," to recall Rehnquist's flowery phrase, to convert national regulatory power to a general police power. But the regulation of local non-commercial activity is no more or less a threat to state police power than the regulation of local commercial activity. The power of states to promote the health, safety, and morals of the people has always been understood to embrace the power of states to regulate their own economies.⁽⁸⁹⁾ When federal commercial regulation preempts, limits or even supplements state commercial regulation, it is interfering every bit as much in local police power as would federal regulation of local non-
commercial activity.

The commercial/non-commercial distinction likewise cannot be justified on the ground that it is a reasonable tool for differentiating Congress's authentically economic motives from congressional motives grounded in concerns of public welfare or morality that are traditionally the focus of state non-economic regulation. Compare, for example, a national anti-prostitution statute⁽⁹⁰⁾ with a hypothetical federal law purporting to mandate compulsory education in some East Asian language as a prerequisite to high school graduation. The first regulates economic activity and the second not. Yet, the second law is obviously grounded in economic motivations that probably do not animate the first. There is no reason consistent with the Commerce Clause why Congress's commerce-driven compulsion of Asian language education should be more suspect than its morally driven regulation of prostitution, which is clearly what Lopez and Brzonkala suggest. Or to take a more homely example, we should be more suspicious of a hypothetical federal law that would regulate what a parent may give his or her child as a weekly allowance than of the actual statute making it a crime to possess a gun within 1,000 feet of a school. Yet, because of the plainly economic character of a monetary allowance, Lopez and Brzonkala point the opposite way.

In fact, the distinction between commercial and non-commercial activity does not map onto any value commonly associated with federalism. Whether we value the diffusion of political authority, respect for diversity, the capacity of states to innovate in making public policy, or the promotion of government accessibility and accountability, federal preemption of state authority to regulate non-economic activity is no more and no less threatening to those values than federal preemption of state authority to regulate economic activity.⁽⁹¹⁾

c. Hyper-Formalism and the Slippery Slope. The third problem with Lopez and Brzonkala is their implication that federal regulation of non-economic activity ought to be more suspect to the extent its supporting rationale would justify a great many other regulations of non-economic activity, as well. It is in this vein that the Brzonkala majority is careful to distinguish its disapproval of the VAWA from a 1997 Fourth Circuit opinion⁽⁹²⁾ upholding the Freedom of Access to Clinic Entrances Act of 1994.⁽⁹³⁾ Unlike the VAWA, which is based on the pervasive economic effects of gender-based violence, the Clinic Entrances Act was upheld, the Brzonkala majority says, because blocking abortion clinics is related to a discrete and identifiable interstate economic enterprise, namely, the interstate market in reproductive health services.⁽⁹⁴⁾ The justification for upholding the Clinic Entrances Act is not a justification that would sustain every other regulation of non-economic activity, but only a justification that would sustain other regulations of non-economic activity that affect the interstate market in reproductive health services. It is thus a permissible form of justification under the analysis of Lopez and Brzonkala.

This logic is wonderfully perverse. It implies that national legislation is arguably most suspect precisely where the problems it addresses are most pervasive. But the analysis suggests also just how easily the Brzonkala version of the Lopez holding can be evaded. Instead of enacting what might have been called the All Violence Against Women Act, Congress should have enacted the Violence Against Women on College Campuses Act, the Violence Against Women in Public Accommodations Act, the Violence Against Women in Automobile Factories Act, and so on, each to prevent gender-based violence from burdening -- not commerce as a whole -- but rather the interstate markets for education, hotel rooms, and automobiles, respectively.

Indeed, a moment's reflection on this approach reveals how a more ingenious Congress might have provided for gun-free school zones. First, Congress should have enacted the Gun-Free Private School Zones Act to protect the interstate market in K-12 educational services (and, of course, to protect private schools as efficacious and robust participants in interstate markets for books and educational materiel). Congress should then have followed this statute with the Gun-Free Public School Zones Act. Having realized that its first statute might give private schools an unfair advantage in recruiting students, Congress would now assure the same level of protection to public schools -- not to keep children safe, because that is much too general a concern⁽⁹⁵⁾ -- but in order that interstate commerce in private education not become a burden to the effective recruitment of students by public schools. Congress could formalize its economic conclusions in formal statutory findings, and words like "violence," "health" or "public safety" need never appear. If all this sounds too cute by half, it is nonetheless the kind of hyper-formal rationalization that Lopez and Brzonkala would invite.

d. Usurpation of the Legislative Role. And this leads to the fourth fatal difficulty of our latest resurrection of "old federalism." Because the commercial/non-commercial distinction is so easily evaded on formal grounds, the Brzonkala reading of Lopez can only be implemented in a serious way by courts willing to go beyond the artificial formality of the distinction to something more substantive. But whatever that "something" may be, the courts will find themselves either second-guessing legislative motivation -- a highly dubious form of adjudication when a law is fully defensible without reference to legislative motive⁽⁹⁶⁾ -- or usurping the legislative role in making policy.

For example, should Congress enact my hypothetical commercially driven prohibitions on gun possession, a court might be tempted to see past the formal niceties and reject the legislation on the ground that, regardless of Congress's commercial discourse, the statute "in its effect . . . aims" to protect children from gun violence, thus "exert[ing] a power as to a purely local matter to which the federal authority does not extend." This is the formulation employed by the Supreme Court to invalidate Congress's 1916 statute purporting to limit the use of child labor, a law whose impact on interstate commerce could hardly have been either more express or more direct.⁽⁹⁷⁾ This disgraceful national experience alone ought to caution us against permitting judges to base their assessments of constitutional authority on malleable and often dubious characterizations of which motive or purpose behind a statute really counts.

Professor Deborah Merritt, among our most distinguished contemporary commentators on the constitutional law of federalism, has suggested that courts can avoid the artificialities entailed in policing a rigid categorical distinction between commerce and non-commerce. Rather than focus on whether regulated conduct does or does not categorically belong to a discrete set of activities called "commerce," courts should employ what mathematicians call "fuzzy logic," asking instead, "[H]ow much is this conduct like commerce?" and "how much like commerce must conduct be before Congress can regulate it?"⁽⁹⁸⁾ The problem with this approach, and an objection that Professor Merritt anticipates, is that a judicial determination of "commerce-likeness" may seem little more than a judicial reassessment of the justifiability of a national statute.⁽⁹⁹⁾ A court would ask itself whether, in light of the competing arguments for national intervention or state exclusivity in a particular area, some contested activity should be deemed to resemble interstate commerce sufficiently to warrant congressional action. Congress, however, when it enacts a statute, has already answered this question, at least implicitly. Critics may distrust Congress's answer because they perceive Congress to be an "interested party" in disputes over the boundary between state and national regulatory authority.⁽¹⁰⁰⁾ But, so long as a statute is rationally designed either to promote interstate commerce or to prevent interstate commerce from inflicting social harms, any deeper inquiry into the legitimacy of Congress's response would be, in Chief Justice John Marshall's words, "to pass the line which circumscribes the judicial department and to tread on legislative ground."⁽¹⁰¹⁾ This ought be done only if there is some genuinely compelling institutional need to enlarge the usual judicial role. As I discuss below, no such need exists.

A. Are Lopez and Brzonkala Activist?

The unsoundness of the doctrinal maneuvers emanating from Lopez, especially as interpreted by Brzonkala, are enough to belie Chief Judge Wilkinson's claim that the current activist jurisprudence on federalism "holds the promise to be . . . enduring and constructive. . . ."⁽¹⁰²⁾ Even if judicial activism on this subject were warranted, we should hardly applaud activism that takes the form of doctrinal incoherence.

Before assessing the justifiability of any activist project for federalism, however, it may be helpful to consider what observers of the judiciary mean, or should mean, in labeling particular instances of judicial decision as examples of "judicial activism." For example, I recently wrote a short essay on the Brzonkala case for an electronic political journal, which elicited one reader's reaction that Judge Wilkinson was wrong in calling the Brzonkala decision activist because the Fourth Circuit was attempting only to implement faithfully an originalist understanding of the Commerce Clause and the Tenth Amendment.⁽¹⁰³⁾

One might offer in response to this argument Judge Richard Posner's definition of judicial activism as the use of judicial power to second-guess the policy determinations of the non-judicial branches of government.⁽¹⁰⁴⁾ On this understanding, Lopez, Brzonkala, and every other decision that overturns a statute or executive action is activist. That definition, however, seems conspicuously both over- and underinclusive.

For example, it hardly seems activist for a judge to overturn the initiative of a non-judicial branch if there already exist relevant legal texts that, conscientiously interpreted, more or less dictate such a result. Some theorists of interpretation seem to deny the existence of such cases, but the judge for whom I clerked, the late Alvin B. Rubin of the U.S. Court of Appeals for the Fifth Circuit, once expressed to me, in terms I think many judges would recognize, a contrary attitude. "Every judge," he said, "with any genuine intellectual capacity at all knows that there are some decisions that just 'won't write.'" If, following conventional norms of judicial decision making, an opinion upholding the disputed initiative of a non-judicial branch "just 'won't write,'" then to label as "activist" the judicial opinion that "will write" seems to obscure more than it clarifies.

On the other hand, if a judge is self-consciously creative in generating a largely unprecedented constitutional outcome, it hardly seems to be less activist if the outcome favors, rather than overturns the initiative of a non-judicial branch. In Paul v. Davis,⁽¹⁰⁵⁾ to take a Rehnquist-authored example, the Court distorted relevant precedent beyond recognition in order to uphold the discretion of city authorities to include individuals in public postings of habitual shoplifters without affording such individuals a prior hearing.⁽¹⁰⁶⁾ The Court's inventiveness fairly screamed its activist mind-set, even though the result in this particular case was to expand, rather than contract non-judicial administrative authority.

In the effort to analyze judicial behavior, it would seem to be the quality of conscious inventiveness, rather than the direction of a case outcome, that sets judicial activism apart from judicial restraint. When my cyberspace reader challenged Judge Wilkinson's claim of activism, he was trying to argue this point -- that cases like Lopez should not be deemed activist because the Court, in my reader's view, is not inventing new constitutional meaning, but returning to old constitutional meaning. But even if there is some sense in which a constitutional decision is "interpretivist," to use Tom Grey's word,⁽¹⁰⁷⁾ or "originalist," to use a word that others prefer, it may well entail a degree of innovation that deserves the "activism" label.

The recent federalism cases illustrate this point beautifully. Professor Larry Lessig has used the word "translation" to describe what he discerns as the Court's effort to restore, through new judicial doctrines, a set of limits on government power that were inherent in social, economic political, or technological conditions that prevailed when the Constitution was framed, but that have more or less evaporated under changed circumstances.⁽¹⁰⁸⁾ He speaks of Lopez an "an act of interpretive fidelity," "an effort to reconstruct something from the framing balance [of state and federal power] to be preserved in the current interpretive context."⁽¹⁰⁹⁾ Lessig is absolutely clear in describing this project as one of invention,⁽¹¹⁰⁾ a "constructivist" effort, and so, I presume, he would accept that acts of judicial "translation" are activist. Yet, like jurists who self-consciously speak in similar terms, Professor Lessig portrays this activism as significantly constrained because it seeks to create a balance of rights or powers that is "equivalent"⁽¹¹¹⁾ to "the original balance."

I think this formulation greatly underestimates the inventiveness in which modern courts engage when they purport to translate founding commitments into contemporary doctrines. Lessig uses the notion of translation metaphorically, to imply that, once the act of judicial construction is completed, the translator has produced something equivalent to the intended meaning of the founding generation. Even translators, however, do not speak of their work as producing equivalents. As legal comparativist Vivian Curran puts the matter:

Translations from formal language to formal language, from discourse to discourse, and from connotation or referential sources of concepts from one legal culture to another, all involve categorization. When translating, one discovers that one transmits only a portion of the original. Generally one selects among various possible subsets of the original, making value judgments as to which aspects of the original sign should be preserved through triage. The text in translation will trigger associations based on those selections, but they will be associations often not present in the original text, triggered by the signifiers used in the translation, such that a transmutation occurs from the original, making the translation a new and distinct product.⁽¹¹²⁾

And, Professor Curran points out, "divergences of meaning" between the original language and its translated version are likeliest to occur when the language being translated does not correspond to "objects amenable to visible or tactile perception."⁽¹¹³⁾ Legal categories like "federalism" are especially amenable to divergences of meaning.

The idea that the Court in Lopez is re-creating the framers' intended balance of state and federal power under changed circumstances isolates, as the one changed circumstance worthy of legal response, the unprecedented interconnectedness of virtually all social and economic activity with the consequence that the national power to regulate commerce among the states can, if understood literally, become a national power to regulate everything. What this misses, however, is that it is not just the national economy and the national government that would appear unrecognizable to the framers. So, too, would our state governments, whose powers and competencies have grown over two centuries to something the late 18^th century could hardly have imagined.

Over the past half century, the rate of growth in state expenditure and state employment far outpaced their federal equivalents. It is hardly self-evident that the Framers would have worried anxiously about the self-protective capacities of states that collectively employ over 4.7 million people;⁽¹¹⁴⁾ that, together with local governments, all together engage in expenditures of roughly 1.35 trillion dollars per year;⁽¹¹⁵⁾ whose licensing authorities constrain the travel and economic activities of virtually all adults, and that, armed with comprehensive data bases of their citizens' whereabouts (and often of their health, income, and family status, as well), can reach far more deeply into the lives of individual citizens than any national government would have dreamed of in 1789. At a general level, our founders' fears of tyranny and their belief in the vitality of local community and accessible government remain salient today. But it is fanciful to think that we can somehow recalibrate the formal authorities of national or state regulators and re-create anything meaningfully equivalent to the diffusion of power that the framers would have recognized in their utterly different world. It is no accident that a hallmark of many activist opinions is bad historical analysis. The contrived attempt to produce a narrative of legal continuity requires the Court either to emphasize historical questions that are irrelevant or to minimize or misinterpret the evidence that matters.

The task of operationalizing 1789 federalism in a 21^st century America is not a task of translation, but one of renovation. It is a task of redesigning, whether marginally or comprehensively, the legal doctrines, structures, and processes that embody old values so that those values are given their most attractive form under the circumstances of our own age. The project of renovation is linked to a dominant tradition in American constitutional law, which I have elsewhere called "aspirationalism." Aspirationalism views "the Constitution as a signal of the kind of government under which we would like to live," and seeks to interpret the "Constitution over time to reach better approximations of that aspiration."⁽¹¹⁶⁾ If that's what our conservative judicial activists are doing, striving for a better approximation based on changed understanding of the constitutionally embedded value of federalism, then I have sympathy with their impulse. The aspirations long linked with federalism -- diversity, innovation, political responsiveness, insulation from political impression -- are values worth keeping up to date. The problem, and now I return to Lopez and Brzonkala, is not only that the doctrinal tools of renovation that they have invented in recent Commerce Clause cases are arbitrary, as I have already argued. It is also that this particular aspirational project is ill-suited to the courts. Judicial activism ought be undertaken only when our constitutional system exhibits a compelling institutional need for the judiciary to second-guess elected political authorities and when the constitutional aspiration in question can be implemented through workable, coherent legal doctrine.

B. Conservative Judicial Activism as a Misguided Project

According to Judge Wilkinson, the current era of judicial activism is best assessed against the background of two other periods of judicial activism in this century. During the first stage of judicial activism -- the Lochner era -- courts deployed the so-called "liberty of contract" doctrine to strike down laws enacted for the benefit of women, children and labor. That era, he writes, "is still widely disparaged for its mobilization of personal judicial preference in opposition to social welfare legislation."⁽¹¹⁷⁾

The second stage, animated by the civil-rights movement, saw "more and more citizens turn[ing] to the courts to vindicate a wide variety of individual liberties."⁽¹¹⁸⁾ This period, in Wilkinson's view, was justly criticized for the institutional strains it caused and for its negative impact on state authority.⁽¹¹⁹⁾ But "many of its individual decisions were long overdue and salutary," including a number of "judicial landmarks" whose "position in the pantheon of our jurisprudence is secure."⁽¹²⁰⁾

Wilkinson argues that current judicial activism will be "enduring and constructive" like the second era, rather than an "aggressive intrusion into the activities of coordinate branches" like the first. This is so for three reasons. First, Wilkinson says, current activism does not foreclose all elected officials from dealing with national problems; it requires only that the elected officials be officials of states or localities. Hence, it is preferable to the Lochner period, in which the impact of substantive due process was to remove a variety of pressing social problems from the purview of elected policy makers altogether.⁽¹²¹⁾ Second, he asserts, current efforts do not aim at "an exceedingly narrow" and artificial definition of commerce, just some understanding of the Commerce Clause that gives the courts a significant role in enforcing its limits.⁽¹²²⁾ This effort to find a proper judicially enforceable limitation of the Commerce Clause is imperative because, otherwise, the courts would become "textually selective"⁽¹²³⁾ in their commitment to judicial review. This, according to Judge Wilkinson, would result in a "complete abdication" of the judiciary's "interpretive duty."⁽¹²⁴⁾ Finally, unlike Lochner-style activism, current activism does not cater to a single constituency, such as big business.⁽¹²⁵⁾ The first of these points is incomplete. The others are wrong.

It may be consoling to devotees of representative government that Lopez and Brzonkala disable political initiative only at the federal level, and not at the state and local level. But removing national issues from the national political stage is hardly better than removing them from political resolution altogether if the authorities left to resolve those issues lack the capacity to do so effectively. It is transparent that states have not been able on their own to eliminate either threats to school safety from firearms or the plague of gender-based violence.

In this connection, it is worth recalling the origins of the Commerce Clause itself. The Committee on Detail formulated Congress's authority to regulate interstate commerce as part of its effort to fulfill the Philadelphia delegates' resolution that Congress be empowered "to legislate in all cases to which the separate states are incompetent. . . ."⁽¹²⁶⁾ From this perspective, it is hardly faithful to the animating impulse behind Article I to incapacitate Congress from addressing problems that can effectively be addressed only with the participation of the national government.

As for his second point, there is no foundation for arguing that the federal judiciary needs to find federalism-based judicially enforceable limits on Congress's Commerce Clause authority in order to avoid abdicating the judicial review power. Judge Wilkinson's argument on this point is, frankly, so odd in light of our constitutional history that I feel compelled to quote him lest it be imagined that I am simply fabricating his position:

[T]he real challenge to courts is to refrain from being textually selective. Yet, . . . it is hard to understand how one can argue for giving capacious meanings to some constitutional provisions while reading others out of the document entirely. Here, appellants suggest that we give a reading that would rob all meaning from the phrase "Commerce ... among the several States," giving Congress a blanket power simply "To regulate." It seems patently inconsistent to argue for a Due Process Clause that means a great deal and a Commerce Clause that means nothing. How one clause can be robust and the other anemic is a mystery when both clauses, after all, are part of our Constitution.⁽¹²⁷⁾

The fact, however -- and Judge Wilkinson must surely know this -- is that the Court has always been "textually selective" in precisely the way he decries. Among the texts the Court has read in "anemic" fashion, if at all, are the promise to each state of a republican form of government⁽¹²⁸⁾ and the acknowledgment in the Ninth Amendment of unenumerated rights still "retained by the people."⁽¹²⁹⁰⁾ In similar fashion, the Court has refused to say whether the textual commitment of treaty approval power in the Senate has any implications for congressional authority to participate in treaty termination.⁽¹³⁰⁾ Within this decade, the Court has held that it has no authority to interpret the procedural implications of the Senate's explicit textual authority to "try" impeachments.⁽¹³¹⁾ These are hardly small matters or trivial bits of constitutional text.

Yet, the American commitment to judicial review has always co-existed with the Supreme Court's acknowledgment that some portions of the constitutional text are exclusively left to the elected branches of the national government for their authoritative interpretation and enforcement. The very decision that first asserted the federal courts' power of judicial review -- Marbury v. Madison -- states that there are constitutional powers vested in the President for which he is accountable "only to his country in his political character, and to his own conscience."⁽¹³²⁾ In short, the idea that textual selectivity is inconsistent with judicial review is totally odds with the tradition of judicial review as it has evolved in the United States.

Moreover, the kind of deference to Congress embodied in the Court's post-New Deal, pre-Lopez case law merely reduces, rather than eliminates the courts' opportunities to enforce limits on Congress's authority. For example, no one argues that the Framers intended Congress to use its commercial regulatory powers to destroy state governments as significantly autonomous governments. I presume, therefore, that it would be unconstitutional for Congress to deprive states of certain authorities or capacities that, in the words of Justice Thurgood Marshall, are "indisputably aspects of state sovereignty."⁽¹³³⁾ For example, however rational it might be to do so, Congress could not eliminate bicameral state legislatures, insist that states locate their capitals in their most convenient ports, or abandon property taxation in favor of income taxation.⁽¹³⁴⁾ One hopes that this principled limitation on Congress's authority to regulate commerce among the several states is a limitation Congress will hardly ever be tempted to transgress. But it is not much of an argument against a particular interpretation of the Constitution that it will only infrequently afford judges whatever gratification comes from deploying constitutional text to invalidate national statutes.

As for Judge Wilkinson's final point -- that the new activism improves on the Lochner era because "the outcomes of the current era have not consistently favored a particular constituency" -- he is, however inadvertently, misleading. First, the problem with Lochner jurisprudence was not that it favored a particular constituency, but rather that it favored a particular constituency that needed no judicial assistance to assure a fair hearing in the arena of electoral politics. Neither "big business," nor America's propertied elite more generally, needs systematic court protection against federal and state legislative bodies indifferent to their interests. This stands in marked contrast, of course, to the position of African-Americans, among others, whose treatment with indifference or outright hostility by our elected institutions provided a central justification for judicial activism on behalf of civil rights.⁽¹³⁵⁾

The current era likewise favors a particular constituency. It is not an economic faction, but a cultural and ideological constituency, comprising those who reflexively oppose activist national government. Such opposition is as reliable a feature of contemporary cultural conservatism as is enthusiasm for school uniforms and movie ratings.

Part of what made Brzonkala a predictable en banc decision was its origin in the Fourth Circuit.⁽¹³⁶⁾ That court's current majority very much represents a conservative movement in constitutional jurisprudence that has been catalyzed in no small part by the Federalist Society since the early 1980s.⁽¹³⁷⁾ The author of the majority opinion in Brzonkala, J. Michael Luttig, is an alumnus of both the Reagan White House Counsel's office and of the Bush Justice Department,⁽¹³⁸⁾ which, from 1981 to 1992, were significant sites of conservative ferment in constitutional theory.⁽¹³⁹⁾ On the Supreme Court, Chief Justice Rehnquist may be driven to moderate his understandings of constitutional doctrine by his need to woo votes from the instinctively conservative, but largely anti-ideological Justices Kennedy and O'Connor. The Fourth Circuit, however, is often able to muster a comfortable majority of judges around an ideologically purer form of conservative constitutionalism.⁽¹⁴⁰⁾ An available method, as exemplified by Brzonkala, is to embrace the most ambitiously conservative version of a Supreme Court precedent that is arguably more moderate, and then to write as if the ambitious rendition is the only faithful interpretation. Not surprisingly, when this happens, the resulting opinion can sound more like a manifesto than a judicial exposition of the law.

The "movement" character of Judge Luttig's opinion in Brzonkala is as evident in its tone as in its substance. Five aspects of his prose are especially worthy of note because they signal so strongly a sense of political mission that exceeds inappropriately conventional understandings of the judicial role.

The most obvious, albeit the least toxic of these signals is the extraordinary level to which the Brzonkala opinion raises the phenomenon of "protesting too much." When a judge requires 64 pages of double-columned, single-spaced prose to demonstrate the unconstitutionality of a single non-technical provision of federal law, that alone may well suggest he is reaching too far.⁽¹⁴¹⁾ In this case, the author's repetitiveness does not strengthen his argument. For example, from the uncontested factual record of widespread violence against women and of the extraordinary economic impacts of such violence, it takes only three implications to connect the VAWA to interstate commerce. The first, which seems self-evident, is that some significant portion of the multi-billion dollar national economic impact inflicted by violence against women implicates interstate commerce. The second is that some non-trivial portion of the adverse economic impact on the interstate economy is traceable to violence to "motivated by gender" within the meaning of the VAWA. The third is that the availability of damage actions against perpetrators will either deter such violence or mitigate the degree to which its victims will be injured in their capacity to participate in the interstate economy. None of these inferences is remotely counterintuitive, but it is against this reasoning that Judge Luttig invokes the Rehnquist warning about "piling inference upon inference." One might reasonably object, I think, that three inferences is barely a stack, much less a pile. But the rhetorical irony -- especially in light of the "piling" metaphor -- is that Judge Luttig actually employs the Rehnquist phrase or quotes it verbatim from other judicial opinions a total of eleven times in the course of his opinion.⁽¹⁴²⁾

Less humorously, the majority opinion also combines a manifest arrogance with a thinly veiled claim of moral heroism, in which the author implicitly casts his colleagues and himself as defenders of legal purity standing firm against a cabal that includes both the appellants and the dissenters. The arrogance does not go unremarked by the dissent:

As the opening words of its opinion demonstrate, the majority steadfastly refuses to recognize the constraints placed upon the judiciary by the separation of powers. In purporting to act on behalf of "We the People" in striking Subtitle C [of the VAWA]--an act of the people's duly elected legislature--the majority seeks to augment its limited judicial authority with a representative authority that it does not in fact possess.⁽¹⁴³⁾
 

But it is not only the will of "We, the People" that the majority believes to be at stake in its opinion. Consider the following lines from the majority's penultimate paragraph, which defy paraphrase:

We are not unaware that in invalidating section 13981 today, we invalidate a provision of a statute denominated the "Violence Against Women Act." No less for judges than for politicians is the temptation to affirm any statute so decorously titled. We live in a time when the lines between law and politics have been purposefully blurred to serve the ends of the latter. And, when we, as courts, have not participated in this most perniciously machiavellian of enterprises ourselves, we have acquiesced in it by others, allowing opinions of law to be dismissed as but pronouncements of personal agreement or disagreement. The judicial decision making contemplated by the Constitution, however, unlike at least the politics of the moment, emphatically is not a function of labels. If it were, the Supreme Court assuredly would not have struck down the "Gun-Free School Zones Act," the "Religious Freedom Restoration Act," the "Civil Rights Act of 1871," or the "Civil Rights Act of 1875." And if it ever becomes such, we will have ceased to be a society of law, and all the codification of freedom in the world will be to little avail.⁽¹⁴⁴⁾
 

In this hyperbolical and significantly incoherent passage, the Fourth Circuit majority actually casts itself as a heroic force of resistance to the merely superficial appeal of protecting women from violence, and claims a role in saving society from itself.

It is additionally distressing that Judge Luttig quite clearly takes this battle personally. He scolds the plaintiff, the Justice Department and the dissenters in personal terms as if their advocacy for a moderate reading of Lopez were an act of lese majesté against the forces of constitutional purity.⁽¹⁴⁵⁾ He seems to imagine the appellants and the dissenters having some personal connection between them, because of which the dissent's arguments will actually have emotional implications for appellants. He writes that the dissent "lay[s] bare appellants' . . .standard of review to an extent that will surely prove disquieting to appellants."⁽¹⁴⁶⁾ And yet again: "The dissent stands in what we suspect will be, for appellants, uncomfortable testament to this infinite reach of appellants' argument."⁽¹⁴⁷⁾ It is mysterious why Judge Luttig would advert to the appellants' supposed reactions to the dissent. One yearns to have been able to assure Judge Luttig that nothing about the dissenting opinion would prove either disquieting or uncomfortable to the appellants other than its failure to garner six, rather than four votes from an 11-judge bench.

Fourth, it is troubling also to consider the condescending, even insulting tone that Judge Luttig directs against both appellants and dissenters. He describes appellants' "invocations of 'rational basis review'" as "incessant,"⁽¹⁴⁸⁾ and their fourteenth amendment argument as "maundering"⁽¹⁴⁹⁾ and marked by "incant[ation]" "to the point of histrionics."⁽¹⁵⁰⁾ He chastises them for merely "tepid"⁽¹⁵¹⁾ acknowledgment of the distinction between economic and non-economic activity, characterizes their paraphrase of Congress's reasoning as manifesting "an understandable--although barely excusable reluctance--to quote it in its entirety,"⁽¹⁵²⁾ and suggests that their perspective on Lopez verges on unethical misrepresentation.⁽¹⁵³⁾ For Judge Luttig, the interpretive disagreement over the reach of the Commerce Clause -- or, more accurately, the reach of Lopez -- is invested with a depth of moral significance more readily associated with religious crusades than with legal interpretation.

Finally, one must be excused also for concluding that one reason Judge Luttig imagines the appellants and the dissenters to be arrayed against him on a personal level is that Brzonkala is a case about the Violence Against Women Act and both the plaintiff, Christy Brzonkala, and the author of the dissenting opinion, Diana Gribbon Motz, are women.⁽¹⁵⁴⁾ Judge Luttig feels compelled to recite a lengthy passage from Judge Motz's opinion because it is "so startling in its quaint innocence."⁽¹⁵⁵⁾ His scolding for "histrionics"⁽¹⁵⁶⁾ stereotypically attributes to the appellants an excessive emotionalism, which he implicitly contrasts with the court's allegiance to duty and reason. And, Christy Brzonkala, for her part, along with the Justice Department, seeks to "emasculate the judicial role in the determination of whether Congress has exceeded its constitutional authority."⁽¹⁵⁷⁾ Such truculence is not, to use Judge Wilkinson's phrase, judicial activism that is "measured and cautious."⁽¹⁵⁸⁾ It is a culture wars barrage that masquerades as legal formalism. Contrary to Judge Wilkinson, it very much substantiates the anxiety that this third 20^th C. era of judicial activism is intended to advance the cultural agenda of a particular ideological constituency.⁽¹⁵⁹⁾

But the weakness of Judge Wilkinson's analysis lies in more than the defects of the arguments he makes. It lies also in the critical point he ignores, namely, that the era of civil rights-oriented judicial activism, unlike the Lochner era, had a weighty institutional justification. As I have already noted, the Court was responding to the systemic difficulties posed for historically disadvantaged groups in eliciting genuine responsiveness from the non-judicial branches of state and federal government. In embarking now on a program of judicial activism for the states, the courts are not filling any comparably compelling institutional need.

In writing the opinion overturning National League of Cities v. Usery, the late Justice Blackmun invoked the argument⁽¹⁶⁰⁾ made famously by Herbert Wechsler⁽¹⁶¹⁾ and more recently by Dean Jesse Choper⁽¹⁶²⁾ that the primary constitutional protections for federalism lay in the structure and composition of the national government itself. Without rehearsing the details of this argument, it bears noting that there are today few features of our political life more conspicuous than the consistently growing significance of our state and local governments as centers of policy making and public activity. The size of our states' collective workforce multiplied four-and-a-third times between 1952 and 1992.⁽¹⁶³⁾

As of 1995, that workforce was nearly one-and-two-thirds the size of the federal workforce,⁽¹⁶⁴⁾ which, by contrast, has declined steadily throughout the current decade.⁽¹⁶⁵⁾ During the same 40-year period, direct expenditures by state and local governments, held constant for 1992 dollars multiplied six times to over 1.1 trillion dollars.⁽¹⁶⁶⁾

This is 1.81 times the rate of growth in federal expenditures.⁽¹⁶⁷⁾

The federal government did not impede the growth of state activity. It fueled it. Between 1970 and 1998, federal grants-in-aid to the states went from just over $24 million to nearly $251 million,⁽¹⁶⁸⁾ which even measured in 1998 dollars, was still a 249 per cent increase.⁽¹⁶⁹⁾ Against this background, any anxiety that individual freedom is threatened in the United States by a national government intent on crippling state sovereignty seems utterly fantastical. This point is all the stronger in light of recent legislation, some proposed,⁽¹⁷⁰⁾ some adopted,⁽¹⁷¹⁾ that is highly protective of state interests, as well as executive orders emanating from both Republican and Democratic presidents⁽¹⁷²⁾ counseling executive agencies to be more attentive to federalism concerns.

The potential perversity of Commerce Clause activism on behalf of the states is evident in the very case with which the Supreme Court launched its anti-commandeering principle. That case concededly posed a hard question. By mandating that states implement a federal regulatory scheme through legislative action, Congress arguably was impinging upon an indisputable aspect of state sovereignty. Proscribing such a scheme categorically, however, effectively prevents Congress from helping address the states' collective action problems. The 1985 amendments to the Low-Level Radioactive Waste Policy Act, which the Court partially invalidated in New York v. United States, enacted a set of compromises arrived at and endorsed by the National Governors Association after the states proved unable to comply with the original Low-Level Radioactive Waste Policy Act, which had been enacted in 1980.⁽¹⁷³⁾ The original Act, which also embodied the legislative recommendations of the National Governors Associations, addressed the radioactive waste disposal problem by authorizing the states to form regional compacts to deal with the problem of radioactive waste disposal.⁽¹⁷⁴⁾ Only after this technique failed did Congress leave states with the choice of either regulating radioactive waste consistent with congressional standards or "taking title to and possession of the low level radioactive waste generated within their borders and becoming liable for all damages waste generators suffer as a result of the States' failure to do so promptly."⁽¹⁷⁵⁾ Thus, from start to finish, the animating forces behind the so-called commandeering of state authority were the states themselves. Invalidating this statute frustrated, rather than protected the states' capacity to fashion their own favored solutions to pressing public problems.

None of this is to deny the importance of the federalism values that lay at the heart of the current era of judicial activism. These values -- cultural diversity, government accountability, state experimentation, and the protection of individual freedom -- are hardly less important now than at our founding. Of course, the association of these values with the states may embody some degree of romanticization. For example, it is worth considering whether, in some respects, the federal government, although generally more remote from "the People," might actually be easier to monitor and thus to approach effectively, and, to that extent, more accountable to the average citizen than are state and local governments.⁽¹⁷⁶⁾

But there is a bigger point here. Under current economic, social, and technological circumstances, Congress may chiefly be the states' necessary partner and not their adversary in protecting values of localism and the states' capacity for experimentation. In some cases, such as waste disposal or, for that matter, the regulation of child labor, the states face "prisoner's dilemma" problems that only an external authority can overcome. Public policy experimentation typically requires resources that the states cannot entirely for themselves. State accountability may be weakened by the absence of federal monitoring.

At the risk of closing on the briefest mention of a very big and speculative idea, I also wonder whether the greatest risk to localism at the turn of the Millennium is not the accumulation of national governmental power, but rather the burgeoning of private economic power that is largely unaccountable to any polity whatever. As Parisians bristle against what has rather wonderfully been called "McDomination,"⁽¹⁷⁷⁾ it seems clear that the choices among social values and living conditions made available by the states are threatened by economic and technological trends that, if they are worth resisting, cannot be resisted effectively without a sympathetic national legislative authority. If we are to "renovate"or even "translate" our founding commitments to diversity into something equally compelling in the post-industrial age, we will have to rely on political actors more formidable than our judges and acts of creativity more meaningful than the imposition of artificial doctrinal constraints on Congress's regulatory powers.
 

November 17, 1999 Draft

*. Harold Gill Reuschlein Distinguished Visiting Professor of Law, Villanova University School of Law (Fall, 1999), and Professor of Law and former dean, University of Pittsburgh School of Law. This essay was originally delivered as the Harold Gill Reuschlein Distinguished Lecture on October 29, 1999. I am grateful to audience members both at the Villanova lecture and at a Washington University in St. Louis School of Law faculty workshop based on this lecture for comments and suggestions that sharpened my thinking. I benefitted also from the research assistance of Pitt law student Trisha Williams '01.

1. Brzonkala v. Virginia Polytechnic Institute, 169 F.3d 820, 892 (4^th Cir. 1999) (en banc) (Wilkinson, C.J., concurring), cert. granted sub nom. United States v. Morrison, 68 USLW 3021 (U.S. Sep. 28, 1999).

2. Id. at 893.

3. Id.

4. 169 F.3d 820 (4^th Cir. 1999) (en banc), cert. granted sub nom. United States v. Morrison, 68 USLW 3021 (U.S. Sep. 28, 1999).

5. 42 U.S.C. §13981(c).

6. Pub. L. No.103-322, §§ 40001-40703, 108 Stat. 1796, 1902-55.

7. Brzonkala, 169 F.3d at 893 (Wilkinson, C.J., concurring).

8. Id. at 897. Chief Judge Wilkinson's has written, "Legal reason represents the process of applying impersonal principles of law to varying facts. Thus conceived, reason may chart the course between the subjective dangers of the pragmatic and the ideological. The great danger of pragmatic judging is that it is divorced from underlying legal principle; the danger of the ideologic, that it is severed from the subtleties of real life facts." J. Harvie Wilkinson, The Role of Reason in The Rule of Law, 56 U. Chi. L. Rev. 779, 792 (1989). His temperament perhaps reflects that of the late Justice Lewis Powell, for whom he clerked.

9. Id. at 898.

10. 198 U.S. 45 (1905) (invalidating New York maximum hours of employment law).

11. 4 Wheat. (17 U.S.) 316 (1819).

12. 9 Wheat. (22 U.S.) 1 (1824).

13. The third leg of the triumvirate is, of course, Marbury v. Madison, 1 Cranch (5 U.S.) 137 (1803), which established much of the framework for the future of separation of powers law with regard to judicial review of both Congress and the executive.

14. U.S. Const., Art. I, § 8, cl. 3.

15. Deborah Jones Merritt, COMMERCE!, 94 Mich. L. Rev. 674, 674 (1995).

16. E.g., Miranda v. Arizona, 384 U.S. 436 (1966) (limiting conditions under which confessions would be deemed voluntary and admissible at criminal trials under the Fifth and Sixth Amendments).

17. E.g., Goldberg v. Kelly, 397 U.S. 254 (1970) (imposing oral hearing requirement under Due Process Clause as prerequisite to state's termination of public assistance benefits).

18. E.g., Brown v. Board of Education, 347 U.S. 483 (1954) (invalidating state-imposed systems of racially segregated public schooling).

19. E.g., Reynolds v. Sims, 377 U.S. 533 (1964) (imposing "one person, one vote" requirement on districting for state elections).

20. E.g., Shapiro v. Thompson, 394 U.S. 618 (1969) (overturning state length of residency requirements for public assistance applicants).

21. Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972) (holding that state-conferred liquor license did not implicate state sufficiently in race discrimination by private club to render the club a state actor liable to suit under the Fourteenth Amendment).

22. Edelman v. Jordan, 415 U.S. 651 (1974) (holding that the Eleventh Amendment bars retroactive monetary awards without state consent even in suits against state officials brought under Ex parte Young, 209 U.S. 123 (1908), if award can be satisfied only from the general revenues of the State).

23. Salyer Land Co. v. Tulare Lake Basin Water Storage District, 410 U.S. 719 (1973) (holding "one person, one vote" requirement inapplicable to election scheme for water storage district that permitted only landowners to vote and in which votes were weighted according to size of landholding).

24. 426 U.S. 833 (1976).

25. Id. at 652.

26. Id. at 842.

27. Id. at 843-44.

28. See generally Jeff Powell, The Compleat Jeffersonian: Justice Rehnquist
And Federalism, 91 Yale L.J. 1317 (1982).

29. Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264 (1981) (upholding the Surface Mining Control and Reclamation Act against Tenth Amendment challenge); United Transportation Union v. Long Island Railroad Co., 45 U.S. 678 (1982) (holding that the application of the Railway Labor Act to state-owned railroads did not burden a traditional state function); FERC v. Mississippi, 458 U.S. 742 (1982) (upholding Public Utility Regulatory Policies Act of 1978); EEOC v. Wyoming, 460 U.S. 226 (1983) (upholding application of federal Age Discrimination in Employment Act to state employees)..

30. 469 U.S. 528 (1985).

31. Id. at 539-44.

32. Id. at 545-47.

33. Id. at 551-54.

34. Id. at 580 (Rehnquist, J., dissenting).

35. Id. at 581, 587-88 (O'Connor, J. dissenting).

36. The Supreme Court's doctrinal efforts on behalf of federalism go beyond its three-pronged attack on Congress's Commerce Clause authorities. For example, in interpreting statutes that only arguably impose obligations on the states, the Court has evolved a "plain statement" rule that requires Congress to "make its intention 'clear and manifest' if it intends to pre-empt the historic powers of the States," Gregory v. Ashcroft, 501 U.S. 452, 461 (1991) (holding that the federal Age Discrimination in Employment Act does not prohibit the imposition of a mandatory retirement age on state judges). Unlike the Court's doctrinal innovations that would limit congressional authority, this doctrine reflects a careful balancing of judicial deference and concern for federalism. The Court, in essence, is instructing Congress that state autonomy values are of sufficient importance that the Court will not infer that they have been superseded absent evidence - in the form of a plain statutory statement - that Congress has actually deliberated on the relevant state interests and the reasons for superseding them.

The Court has also declined opportunities to read expansively Congress's authority to use its Fourteenth Amendment enforcement power to control state action that would not itself be deemed by the Court to be unconstitutional. City of Boerne v. Flores, 521 U.S. 507 (1997) (invalidating the Religious Freedom Restoration Act); Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 119 S.Ct. 2219 (1999) (invalidating the Patent Remedy Act). I do not focus on these developments here for two reasons. First, despite the potential expansiveness of Justice Brennan's majority opinion in Katzenbach v. Morgan, 384 U.S. 641 (1966) (suggesting that Section 4 of the Voting Rights Act might be sustainable as an independent determination by Congress that the imposition of an English literacy test on Spanish-literate voters in New York was unconstitutional), the Court had already rejected the more extravagant of his theories in Oregon v. Mitchell, 400 U.S. 112 (1970) (rejecting federal statutory reduction in state voting age from 21 to 18 on the ground that Congress lacked power to determine that state age qualifications constituted an unconstitutional discrimination against 18-to-21-year-olds). Second, in addition to policing the federalism implications of interpreting section 5 of the Fourteenth Amendment broadly, the Court - in delineating Congress's powers - is also attending to the separation of powers, namely, to the Court's own role in delineating the operational scope and meaning of the constitutional rights that are the targets of Congress's remediation under the Fourteenth Amendment.

37. Hammer v. Dagenhart, 247 U.S. 151 (1918) (invalidating federal law that prohibited products of child labor from moving in interstate commerce); Railroad Retirement Board v. Alton Railroad Co., 295 U.S. 330 (1935) (invalidating compulsory retirement and pension plan requirements for all railroads subject to the Interstate Commerce Act); Carter v. Carter Coal Co., 298 U.S. 238 (1936) (invalidating the regulation of minimum wages and maximum hours for coal mining operations).

38. Successive appointments that tended to continue the likelihood that a particular "seat" on the court would be deferential to Congress include the succession of Justice Fortas by Justice Blackmun in 1970 (at least in his post-National League of Cities period), who in turn was succeeded by Justice Breyer in 1994; the succession of Justice Brennan by Justice Souter in 1990; and the succession of Justice White by Justice Ginsburg in 1993. I would also include the succession in 1975 of Justice Douglas by Justice Stevens, although Douglas, based on his dissent in Maryland v. Wirtz, 192 U.S. 183, 201 (1968) (Douglas, J., dissenting) (dissenting from judgment upholding the extension of the Fair Labor Standards Act to public schools and hospitals) might well have joined the Rehnquist opinion in National League of Cities. Successive appointments that tended to continue the likelihood of pro-federalism sensitivity included the succession of Justice Harlan by Justice Rehnquist in 1972; the succession of Justice Stewart by Justice O'Connor in 1981, the replacement on the Court of Chief Justice Burger by Justice Scalia, made possible by Chief Justice Rehnquist's elevation in 1986, and the succession of Justice Powell by Justice Kennedy in 1988.

39. See Lopez v. United States, 514 U.S. 549, 584-602 (1995) (Thomas, J., concurring).

40. New York v. United States , 505 U.S. 144 (1992) (invalidating "take title" provisions of the Low-Level Radioactive Waste Policy Amendments Act of 1985).

41. Printz v. United States , 521 U.S. 898 (1997) (invalidating certain interim provisions of the Brady Handgun Violence Prevention Act).

42. Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996) (Eleventh Amendment bars congressional exercise of Article I regulatory power from abrogating states' sovereign immunity from suit in federal court); Alden v. Maine, 119 S.Ct. 2240 (1999) (Eleventh Amendment bars congressional exercise of Article I regulatory power from abrogating states' sovereign immunity from suit in state court); Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 119 S.Ct. 2199 (1999) (Congress may not rely on its enforcement powers under section 5 of the Fourteenth Amendment to abrogate state sovereign immunity from suit unless tailored as a remedy for identified conduct transgressing the substantive prohibitions of the Fourteenth Amendment); College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 19 S.Ct. 2219 (1999) (abrogation of state sovereign immunity by Trademark Remedy Clarification Act cannot be upheld under section 5 of the Fourteenth Amendment because trademark infringement is not a deprivation of property; states do not waive immunity by participating voluntarily in federally regulated activity).

43. 514 U.S. 549 (1995).

44. The indictment at issue in Lopez rested on the original 1990 version of the Act. Pub. L. 101-647, 104 Stat. 4844. In 1994, Congress enacted the Violent Crime Control and Law Enforcement Act, Pub. L. 103-322, 108 Stat. 1796, which both included congressional findings on the effects of firearm possession near schools on interstate and foreign commerce and limited the reach of 18 U.S.C. § 922(q) to guns that have traveled in or affected commerce.

45. U.S. Const., art. I, § 8, cls. 3, 18.

46. Lawrence Lessig, Translating Federalism: United States v. Lopez, 1995 S.Ct. Rev. 125, 129-30.

47. Erik M. Jensen and Jonathan L. Entin, Commandeering, the Tenth Amendment, and the Federal Requisition Power, 15 Const. Comm. 355 (1998). The Court may be on stronger ground in holding that Congress may not compel state legislative action, although the complexities of this position are discussed further below.

48. "[T]he sovereign immunity of the States neither derives from nor is limited by the terms of the Eleventh Amendment. Rather, as the Constitution's structure, and its history, and the authoritative interpretations by this Court make clear, the States' immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today (either literally or by virtue of their admission into the Union upon an equal footing with the other States) except as altered by the plan of the Convention or certain constitutional Amendments." Alden v. Maine , 119 S.Ct. 2240, 2247 (1999).

49. Herbert Hovenkamp, Judicial Restraint and Constitutional Federalism: The Supreme Court's Lopez and Seminole Tribe Decisions, 96 Colum. L. Rev. 2213, 2244-45 (1996).

50. Id; Seminole Tribe of Florida v. Florida, 517 U.S. 44, 132-142, 160-162 and n.55 (Souter, J., dissenting); Alden v. Maine, 119 S.Ct. 2240, 2270-2289 (Souter, J., dissenting).

51. The alternative would be to offer funding to the states in return for their voluntary implementation of federal legislation. The breadth with which the Supreme Court has approved such "bargains" casts some doubt on the practical significance of the anti-commandeering and Eleventh Amendment cases. See, e.g., South Dakota v. Dole, 483 U.S. 203 (1987) (upholding the conditioning of federal highway funding on state decisions to raise the minimum drinking age to 21). Congress, for example, could condition federal funding for state police authorities on their participation in identification checks for would-be gun purchasers, or make federal funds for state universities dependent on waivers of sovereign immunity in lawsuits charging patent violations by those universities.

52. "The federal systems of Switzerland, Germany, and the European Union . . . all provide that constituent states, not federal bureaucracies, will themselves implement many of the laws, rules, regulations, or decrees enacted by the central 'federal' body. Lenaerts, Constitutionalism and the Many Faces of Federalism, 38 Am. J. Comp. L. 205, 237 (1990); D. Currie, The Constitution of the Federal Republic of Germany 66, 84 (1994); Mackenzie-Stuart, Foreward, Comparative Constitutional Federalism: Europe and America ix (M. Tushnet ed.1990); Kimber, A Comparison of Environmental Federalism in the United States and the European Union, 54 Md. L.Rev. 1658, 1675-1677 (1995). They do so in part because they believe that such a system interferes less, not more, with the independent authority of the "state," member nation, or other subsidiary government, and helps to safeguard individual liberty as well. See Council of European Communities, European Council in Edinburgh, 11-12 December 1992, Conclusions of the Presidency 20-21 (1993); D. Lasok & K. Bridge, Law and Institutions of the European Union 114 (1994); Currie, supra, at 68, 81-84, 100-101; Frowein, Integration and the Federal Experience in Germany and Switzerland, 1 Integration Through Law 573, 586-587 (M. Cappelletti, M. Seccombe, & J. Weiler eds.1986); Lenaerts, supra, at 232, 263." Printz v. United States, 521 U.S. 898, 976-77 (1997) (Breyer, J., dissenting).

53. 119 S.Ct. 2240 (1999).

54. 119 S.Ct. 2199 (1999).

55. The majority in Brzonkala also rejected the argument that the VAWA could be upheld under Congress's authority to enforce the Fourteenth Amendment. 169 F.3d at 861-89. Although the argument in favor of congressional power is not frivolous, there is plainly no body of well-established precedent establishing Congress's power to provide civil remedies against private individuals acting independently of state authorities as a way of enforcing the states' obligation of equal protection. Thus, the Brzonkala Fourteenth Amendment holding -- despite the aggressiveness of Judge Luttig's prose -- ought not be viewed as involving the same kind of activism as is embodied in the Commerce Clause holding. The Brzonkala dissent, which argues for upholding the VAWA on commerce clause grounds, does not reach the Fourteenth Amendment question. Id. at 911 n. 1 (Motz, J., dissenting).

56. 514 U.S. at 615-18 (Breyer, J., dissenting).

57. Id. at 618-25.

58. Id. at 558-59. Chief Justice Rehnquist identifies as the other two permissible subjects of Commerce Clause-based regulation "the channels of interstate commerce," and "the instrumentalities of interstate commerce, or persons or things in interstate commerce." Id. at 558.

59. Id. at 560.

60. Id. at 564-68.

61. Id. at 567.

62. Id. at 564.

63. Id. at 580 (Kennedy, J., concurring).

64. 68 U.S.L.W. 3177 (U.S. Sept. 28, 1999).

65. 42 U.S.C. § 13981(b).

66. 42 U.S.C. § 13981(c).

67. Brzonkala, 169 F.3d at 913 (Motz, J. dissenting).

68. Id., quoting H.R. Conf. Rep. No. 103-711, at 385 (1994).

69. Id.

70. Id. at 914.

71. Id.

72. Id. at 912-917.

73. Id.

74. Id. at 837.

75. Id. at 840-44.

78. "Congress is not obligated, when enacting its statutes, to make a record of the type that an administrative agency or court does to accommodate judicial review." Turner Broadcasting System v. FCC, 512 U.S. 622, 666 (1994).

79. Brzonkala, 169 F.3d at 843 (rejecting "a purely quantitative view of the substantially affects test" that could "extend federal control to a vast range of problems falling within even the most traditional areas of state concern").

80. Id.

81. Id.

82. Id. at 857.

83. See Section III-B, infra.

84. Brzonkala, 169 F.3d at 851.

85. 18 U.S.C. § 2261.

86. Brzonkala, 169 F.3d at 851.

87. Indeed, from the standpoint of federalism, the creation of a federal criminal offense -- resulting in a seeming competition between state and federal officials to control criminal conduct -- would appear to be more problematic, even with a jurisdictional limitation, than the creation of a private damages remedy. A private damages remedy does not augur the kinds of harm that have been attributed to the "inappropriate federalization" of criminal law. See American Bar Association Criminal Justice Section Task Force on the Federalization of Criminal Law, The Federalization of Criminal Law 24-43 (1998).

88. 18 U.S.C. § 922(q), as amended by the Violent Crime Control and Law Enforcement Act, Pub. L. 103-322, 108 Stat. 1796 (1994).

89. There is a linguistic reading of "commerce among the several states" that would include purely local commerce within that category. Hovenkamp, supra note 49, at 2229-2232. On that reading, a local commerce/local non-commerce distinction with regard to the Commerce Clause itself could perhaps be justified on the formal ground that this particular clause explicitly authorizes the regulation of local commerce, but not the regulation of local non-commerce. Even so, Congress still enjoys the power to make "all laws necessary and proper" for the execution of its commercial regulatory powers; under this authority, removing all impediments to interstate commerce, whether commercial or non-commercial in their origin, would appear to be equally valid.

90. Lessig, supra note 46, at 129-30.

91. Cf., City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976) ("States are accorded wide latitude in the regulation of their local economies under their police powers . . .").

92. The Supreme Court upheld the federal Mann Act, prohibiting the transportation of women in interstate commerce for immoral purposes, in Hoke v. United States, 227 U.S. 308 (1913).

93. It has similarly been argued that the distinction between "commandeering" states and preempting state law also fails to map onto any important value ordinarily associated with federalism. Matthew D. Adler and Seth F. Kreimer, The New Etiquette of Federalism: New York Printz and Yeskey, 1998 Sup. Ct. Rev. 71.

94. Hoffman v. Hunt, 126 F.3d 575, 587 (4th Cir.1997) (holding that obstruction of abortion clinic entrances "is closely connected with, and has a direct and profound effect on, the interstate commercial market in reproductive health care services")

95. Freedom of Access to Clinic Entrances Act of 1994, Pub. L. No. 103-259, § 2, 108 Stat. 694 (1994), codified at 18 U.S.C. § 248.

96. Brzonkala, 169 F.3d at 840 n. 9 ("It is plain that we did not uphold the statute in Hoffman because the regulated conduct affected the national economy, but rather because it directly affected a specific interstate market and was also 'closely and directly connected with an economic activity.'")

97. One yearns here to insert the "emoticon" ubiquitously used on the internet to show that one is joking, namely, :-).

98. John Hart Ely, Legislative and Administrative Motivation in Constitutional Law, 79 Yale L. J. 1205, 1222 (1970).

99. Hammer v. Dagenhart, 247 U.S. 251, 276 (1918) ("[A] prohibition against the movement in interstate commerce of ordinary commercial commodities to regulate the hours of labor of children in factories and mines within the states . . . exerts a power as to a purely local matter to which the federal authority does not extend.")

100. Deborah Jones Merritt, The Fuzzy Logic of Federalism, 46 Case W. L. Rev. 685, 688 (1996); Merritt, supra note 15, at 745.

101. Merritt, supra note 15, at 744 n. 305.

102. Id.

103. McCulloch v. Maryland, 4 Wheat. (17 U.S.) 316, (1819).

104. Brzonkala, 169 F.3d at 893 (Wilkinson, C.J., concurring).

105. Peter M. Shane, Judicial Activism, Conservative-style, Intellectual Capital.Com, July 22-29, 1999, posted at http://www.intellectualcapital.com/issues/ issue259/item5807.asp.

106. R. POSNER, THE FEDERAL COURTS: CRISIS AND REFORM 207-210 (1985).

107. 424 U.S. 693 (1976).

108. In Paul, the Court concluded that the Louisville Police Department did not deprive the plaintiff below of due process in erroneously including him, without prior hearing, on a widely circulated Police Department poster of "Active Shoplifters." To reach this result, the majority had to distinguish Wisconsin v. Constantineau, 400 U.S. 433 (1971), in which the Court held that Wisconsin had denied due process by permitting local officials to post summarily the names of individuals determined to be engaged in "excessive drinking." Although the Constantineau decision rested explicitly on the impact of state-imposed disgrace on the plaintiff's reputation, the Court, in Paul, denied that damage to reputation was the gravamen of the holding in the earlier case. The Paul majority said that the Wisconsin scheme implicated the Due Process Clause only because citing Constantineau as an habitual drunk imposed a state legal obligation on liquor merchants not to sell her liquor.

109. Thomas C. Grey, Do We Have an Unwritten Constitution?, 27 Stan. L. Rev. 703 (1975). The point has been made that all plausible theories of constitutional interpretation are "interpretivist." Paul Brest, The Misconceived Quest for the Original Understanding, 60 B.U.L.Rev. 204, 204 n.1 (1980). As Grey himself has written: "We are all interpretivists; the real arguments are not over whether judges should stick to interpreting, but over what they should interpret and what interpretive attitudes they should adopt." Thomas C. Grey, The Constitution as Scripture, 37 Stan. L. Rev. 1, 1 (1984).

110. Lessig, supra note 46, at 131-135.

111. Id. at 129.

112. Id. at 146.

113. Id. at 134.

114. Vivian Grosswald Curran, Cultural Immersion, Difference and Categories in U.S. Comparative Law, 66 Am. J. Comp. L. 43, 56-57 (1998).

115. Id. at 50.

116. U.S. Census Bureau, Statistical Abstract of the United States: 1998, at 331 (Table 530).

117. Id. at 307 (Table 499).

118. This vision treats as essential to constitutional understanding the broad normative purposes that the Constitution invokes: "to form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity." To use John Marshall's words, those purposes are vindicated by remembering "it is a constitution we are expounding," that in a constitution, "only its great outlines should be marked," and that our constitution was "intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs." . . . Aspirationalism is not tantamount to regarding the Constitution as perfect, or perfectible through ingenious reading. . . . Aspirationalism does insist, however, that new or evolving understandings of the Constitution may not require formal amendment for their implementation. Cultural change, that is change in social understanding, may make certain reasoned arguments compelling to later generations that earlier generations did not foresee.
 

Peter M. Shane, Rights, Remedies and Restraint, 64 Chi.-Kent L. Rev. 531, 550 (1989). A similar position is expressed in Sotirios Barber, On What the Constitution Means 34-37 (1984).

119. Brzonkala, 169 F.3d at 890 (Wilkinson, C.J., concurring).

120. Id. at 891.

121. Id. at 892.

122. Id.

123. Id. at 895.

124. Id. at 894.

125. Id.

126. Id.

127. Id. at 893.

128. 1 The Records of the Federal Convention of 1787, at 21 (Max Farrand ed., rev. ed. 1937) (May 29) (notes of James Madison). For a thoughtful suggestion for reformulating Commerce Clause doctrine to reflect its origins, see Deborah Jones Merritt, The Third Translation of the Commerce Clause: Congressional Power to Regulate Social Problems, 66 Geo. Wash. L. Rev. 1206, 1210-17 (1998).

129. Brzonkala, 169 F.3d at 894-95 (Wilkinson, C.J., concurring).

130. See City of Rome v. United States, 446 U.S. 156, 183 n. 17 (declining to reach the merits of a Guarantee Clause claim on grounds of nonjusticiability). For arguments that the Guarantee Clause would provide a better ground than does the Tenth Amendment for the Supreme Court's federalism jurisprudence, see Deborah Jones Merritt, Republican Governments and Autonomous States: A New Role for the Guarantee Clause, 65 U. Colo. L. Rev. 815 (1994); Deborah Jones Merritt, The Guarantee Clause and State Autonomy: Federalism for a Third Century, 88 Colum. L. Rev. 1 (1988).

131. The Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." U.S. Const., amend. IX. "[T]he Ninth Amendment has not been used as the basis for defining rights of individuals and invalidating either federal or state laws . . . .References to the Amendment in the Supreme Court appear to be only in dicta or opinions of individual Justices." John E. Nowak and Ronald D. Rotunda, Constitutional Law 400 n. 10 (5^th ed. 1995).

132. Goldwater v. Carter, 444 U.S. 996 (1979) (plurality opinion) (holding Senate's role in treaty abrogation to present a nonjusticiable political question).

133. Nixon v. United States, 506 U.S. 224 (1993) (holding the procedural sufficiency of the Senate's procedure for taking evidence in judicial impeachment trial to be a nonjusticiable political question).

134. Marbury, 5 U.S. at 166.

135. Hodel v. Virginia Surface Min. and Reclamation Ass'n, 452 U.S. 264, 288 (1981).

136. "Congress might rationally conclude that the location a State chooses for its capital may affect interstate commerce, but the Court has suggested that Congress would nevertheless be barred from dictating that location because such an exercise of a delegated power would undermine the state sovereignty inherent in the Tenth Amendment. Coyle v. Oklahoma, 221 U.S. 559, 565 (1911). Similarly, Congress in the exercise of its taxing and spending powers can protect federal savings and loan associations, but if it chooses to do so by the means of converting quasi-public state savings and loan associations into federal associations, the Court has held that it contravenes the reserved powers of the States because the conversion is not a reasonably necessary exercise of power to reach the desired end. Hopkins Federal Savings & Loan Assn. v. Cleary, 296 U.S. 315 (1935)." Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 586 (1985) (O'Connor, J., dissenting).

137. This rationale was, of course, first and most famously expressed by the Supreme Court in United States v. Carolene Products Co., 304 U.S. 152 n. 4 (1938). Important commentaries on the famous "footnote 4" include John Hart Ely, Democracy and Distrust 145-61 (1980), and Bruce A. Ackerman, Beyond Carolene Products, 98 Harv. L. Rev. 713 (1985).

138. Mark Hansen, Mid-Atlantic Drift, A.B.A.J., Aug. 1999, at 66; Carrie Johnson, "Testing the Limits: 4^th Circuit's Conservative Push to the U.S. Supreme Court Won't End Anytime Soon," Legal Times, Oct. 4, 1999, available at http://www.lawnewsnetwork.com/ stories/A6927-1999Oct4.html.

139. The "Statement of Purpose" of the Federalist Society for Law and Policy Studies, founded by current Northwestern University Law Professor Steven G. Calabresi and attorney Lea S. Liberman, reads:
 

Law schools and the legal profession are currently strongly dominated by a form of orthodox liberal ideology which advocates a centralized and uniform society. While some members of the academic community have dissented from these views, by and large they are taught simultaneously with (and indeed as if they were) the law.
 

The Federalist Society for Law and Public Policy Studies is a group of conservatives and libertarians interested in the current state of the legal order. It is founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be. The Society seeks both to promote an awareness of these principles and to further their application through its activities.
 

This entails reordering priorities within the legal system to place a premium on individual liberty, traditional values, and the rule of law. It also requires restoring the recognition of the importance of these norms among lawyers, judges, and law professors. In working to achieve these goals, the Society has created a conservative intellectual network that extends to all levels of the legal community.
 

Statement available at http://fed-soc.org/who.htm. It testifies to the Society's networking success that its current Board of Directors is chaired by former judge Robert H. Bork and Senate Judiciary Committee chair, Orrin Hatch (R-UT). Other members include former Counsel to the President C. Boyden Gray, who served as George Bush's Counsel during the Reagan as well as Bush Administrations, and former Reagan Attorney General Edwin Meese, III. Professor Calabresi's current fellow national co-chair is Rep. David McIntosh (R-IN), an adviser to former Vice President Dan Quayle.
 

Through publications and symposia, as well as its organizational activities, the Federalist Society has made so constructive a contribution to the development of conservative legal thought (and to the intellectual resources available to the legal community more generally), that it remains an enduring mystery why supporters of a more progressive constitutionalism have not emulated its model. The time for a Brennan-Marshall Society for Law and Public Policy is long overdue.

140. "4th circuit nominee named," Richmond Times-Dispatch, Apr. 24, 1991, at 7 (available at 1991 WL 4752078).

141. The efforts of the Meese Justice Department to promulgate an official view of how all federal lawyers were to approach issues of constitutional interpretation are most clearly embodied in Office of Legal Policy, U.S. Dep't of Justice, Report to the Attorney General -- Original Meaning Jurisprudence: A Sourcebook (1987); Office of Legal Policy, U.S. Dep't of Justice, Guidelines on Constitutional Litigation (1988); and Office of Legal Policy, U.S. Dep't of Justice, Report to the Attorney General -- The Constitution in the Year 2000: Choices Ahead in Constitutional Interpretation (1988).

142. Taylor v. Virginia Union University, --- F.3d --- (4^th Cir. Sept. 27, 1999) (WL 765871) (en banc) (dismissing sex discrimination claim by two women campus police officers); Weeks v. Angelone, 176 F.3d 249 (4th Cir.), cert. granted, 120 S.Ct. 30 (1999) (rejecting challenges to capital sentencing); U.S. v. Dickerson, 166 F.3d 667 (4th Cir. 1999) (holding that the admissibility of confessions in federal court is governed by statute providing that confession is admissible if voluntarily given, not by rule of Miranda); Condon v. Reno, 155 F.3d 453 (4^th Cir. 1998), cert. granted, 119 S.Ct. 1753 (1999) (invalidating Driver's Privacy Protection Act); Brown & Williamson Tobacco Co. v. Food & Drug Administration, 153 F.3d 155 (4^th Cir. 1998), cert. granted, 119 S.Ct. 1495 (1999) (rejecting assertion of FDA authority to regulate tobacco).

143. The notable exception is Myers v. United States, 272 U.S. 52 (1926), which held that Congress could not condition the President's authority to remove Postmasters General on the consent of the Senate to remove an officer to whose appointment it had been required to give advice and consent. Chief Justice Taft might be excused his verbosity on the ground that, as a constitutional scholar and as a former President, he had special interest in definitively resolving the constitutional issue that had also furnished the pretext for the impeachment of Andrew Johnson.

144. Brzonkala, 169 F.3d at 837, 838, 840, 844, 845 and n. 13 (twice), 847 (twice), 855, and 858 n. 22.

145. Id. at 921 (Motz, J., dissenting).

146. Id. at 889.

147. Although the scolding tone runs throughout the opinion, an especially crystalline example appears in Judge Luttig's discussion of Brzonkala's Fourteenth Amendment argument:
 

In summary, although appellants expressly contend that Harris and the Civil Rights Cases are distinguishable, have tacitly been overruled or modified, and have been repudiated by subsequent authorities, it is apparent from the character of each of these arguments and the "authorities" upon which they rely that appellants really have no argument other than that we should ignore these decisions because they are "too old" to be controlling. To the point of histrionics, in fact, appellants incant that Harris and the Civil Rights Cases are simply "outdated,""century-old," from the "1870's [sic] and 1880's," "19th century" cases, and of little interest to "modern courts," or those with "modern" views about the proper scope of Congress' powers. Indeed, the government in its principal brief cites Harris and the Civil Rights Cases but once, and that citation is a parenthetical embedded within footnote. As we are confident appellants appreciate, however, especially in light of the Supreme Court's recent explicit reliance upon both Harris and the Civil Rights Cases in City of Boerne, we are not at liberty simply to conclude that these cases do not represent the Court's current view of congressional power to regulate exclusively private conduct under Section 5.
 

Id. at 880 (citations omitted).

148. Id. at 857.

149. Id. at 859.

150. Id. at 857.

151. Id. at 870.

152. Id. at 880.

153. Id. at 832 n. 5.

154. Id. at 850 n. 16.

155. Id. at 854 and note 18, and 856 n.20. Judge Luttig also infers from the appellants' strategy of offering alternative theories in support of their position that they are knowingly advancing legally insupportable arguments. Id. at 873.

156. Although the 7-4 Brzonkala vote marked a perfect split between the Fourth Circuit's seven Republicans and its four Democrats, one wonders whether the majority opinion might have differed somewhat in tone if authored by the Court's one female Republican appointee, Judge Karen Williams, even though she, like Judge Luttig, is staunchly conservative.

157. Id. at 860.

158. Id. at 880.

159. Id. at 858.

160. Id. at 898 (Wilkinson, C.J., concurring). Judge Luttig writes with objectionable and arguably gendered belligerence that Judge Motz and those who join her are "candid about their prostrate deference to congressional pronouncements." Id. at 847. Wondering whether I might be springing too quickly to an inference that this phrase might be taken to embody an inappropriately sexualized reference, I checked on November 12, 1999 to see whether the phrase "prostrate deference" had every before appeared in any federal judicial opinion ever. According to WESTLAW, the answer is negative.

161. A common and disquieting feature of politically motivated diatribes is smearing one's opponents by attributing to them one's own behavior. Judge Luttig accuses the appellants of repetition to the point of "incantation," while quoting "piling inference upon inference" eleven times. He anticipates that the dissent will "disquiet" the appellants, without apparently wondering how a rape victim might react to being told by the majority that she is trying to "emasculate" the court. He accuses appellants of trying to disguise the true import of Lopez without ever providing his own account of what led Justice Kennedy to a separate concurrence elaborating what he and Justice O'Connor have determined is the "limited holding" of Lopez, 514 U.S. at 568 (Kennedy, J., concurring). It is hard to imagine that any "histrionics" in the appellants' briefs could outdo Judge Luttig's own over-the-top penultimate paragraph. And, anticipating that critics might infer a political agenda behind the Fourth Circuit's view of the law, he offers in that paragraph a preemptive characterization of any such criticism as "this most perniciously Machiavellian of enterprises." In every respect, this opinion stands in disconcerting opposition to any recognizable ideal of judicial temperament.

162. Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 550-51 (1985).

163. Herbert Wechsler, The Political Safeguards of Federalism: The Role of

the States in the Composition and Selection of the National Government, 54

Colum.L.Rev. 543 (1954).

164. J. Choper, Judicial Review and the National Political Process 175-184 (1980).

165. Harold W. Stanley and Richard G. Niemi, Vital Statistics on American Politics, 1997-1998, at 303-304 (1998).
 

	1952	1992	Rate of Growth
State employees	1,060,000	4,595,000	433 per cent
Federal civilian employees	2,583,000	3,047,000	118 per cent

166. U.S. Census Bureau, Statistical Abstract of the United States: 1998, at 331 (Table 530) (4.719,000 state employees vs. 2,895,000 federal civilian employees).

167. Id. The federal civilian workforce comprised 3,103,000 in 1990, but only 2,895,000 in 1995, slightly under the total of 2,898,000 persons, which the federal government employed in 1980. (It should be noted that these figures differ somewhat from those reported in Stanley and Niemi , supra note 163, at 255, which are based on the data of a different government agency. The cited trends and comparisons, however, are equally observable in both sets of data.)

168. Stanley and Niemi, supra note 163, at 313-14, 390-391.
 

	Direct expenditures (millions of dollars)			Rate of growth, C/B (%)
	(A) 1952	(B) 1952, adjusted for inflation through 1992	(C) 1992
State and local	30,863	189,838	1,141,075	601
Federal	67,700	416,423	1,381,700	332

 

(The re-calculation of 1952 expenditure levels based on 1992 values was accomplished through the Consumer Price Index Inflation Calculator offered at the NASA web site (http://www.jsc.nasa.gov/bu2/inflateCPI.html).

169. Id.

170. U.S. Census Bureau, Statistical Abstract of the United States: 1998, at 310 (Table 504).

171. According to the Consumer Price Index Inflation Calculator offered at the NASA web site (http://www.jsc.nasa.gov/bu2/inflateCPI.html), $ 24 million in 1970 was the equivalent of $ 100.8 million in 1998. $ 251 million equals a 249 per cent increase over $ 100.8 million.

172. E.g., the proposed Federalism Accountability Act of 1999, S.1214, 106^th Cong., 1^st Sess. (1999), and the proposed State and Local Government Participation Act of 1999, 106^th Cong., 1^st Sess. (1999). The power of state governments and their advocates in congressional deliberations is dramatically illustrated by the Federalism Accountability Act; it has made considerable progress in the House despite the combined opposition of business groups, who prefer uniform national standard-setting, and labor and environmental groups, who fear a weakening of national enforcement efforts. Ron Eckstein, "Federalism Bills Unify Usual Foes," Legal Times, Oct. 20, 1999, available at http://www.lawnewsnetwork.com/stories/ A6927-1999Oct4.html.

173. E.g., Unfunded Mandates Reform Act of 1995, Pub.L. 104-4, 109 Stat. 48 (1995).

174. See, e.g., "Federalism," Exec. Order 13132, 64 Fed. Reg. 43255 (Aug. 4, 1999), superseding "Federalism," Exec. Order 12612, 52 Fed. Reg. 41685 (1987), ordering agencies to consult with states and accommodate state policy making where possible in the implementation of federal programs.

175. New York v. United States, 505 U.S. 144, 193-94 (1992) (White, J., dissenting).

176. Id. at 190-192 (White, J., dissenting).

177. Id. at 174-75.

178. Readers of this article might compare, for example, the ease with which any citizen can track and comment on current policy matters before the EPA or FCC by visiting http://www.epa.gov or http://www.fcc.gov, respectively, with the procedures necessary to ascertain comparable information about the structure, processes, and substantive agendas of their county governments. In my own situation, the web site for Pennsylvania's Allegheny County (http://info.co.allegheny. pa.us) is actually rich with information, but it is not searchable. There is no obvious reference to "the environment" or "land use" in any guide to the site. The increasing consolidation of mass media in both print and broadcast has also led to the domination of national news coverage over local news, which further increases the effort entailed for citizens trying to remain abreast of local developments in politics and policy making.

179. E.g., Susannah Patton, "French Farmers Rail Against McDomination," The Seattle Times, Sep. 9, 1999, at A18 (available at 1999 WL 6292187).