The Federalism Project

American Enterprise Institute

The Weekly Standard
December 30, 2002 Volume 008, Number 16

The Standard Reader


Narrowing the Nation's Power: The Supreme Court Sides with the States by John T. Noonan Jr. (University of California Press, 208 pp., $24.95).

A SLIM MAJORITY of the Supreme Court has over the past decade expanded states' immunities against federal authority. These decisions are the target of John T. Noonan--who calls the Court's doctrines "overextended, unjustified by history, and unworkable." They are "unjust," invite comparison with Dred Scott, and threaten to "return the country to a pre-Civil War understanding."

Noonan's chief merit is to notice that the Rehnquist Court's "federalism" has assumed a disconcerting air of judicial imperialism and neo-confederalism. In the form of a dialogue, Noonan characterizes sovereign immunity as not only extra-constitutional but also self-contradictory. It works only because exceptions to the principle prevent the absurd result of placing state conduct entirely beyond the reach of federal law.

Noonan's arguments and denunciations have been rehearsed in a torrent of law-review articles--and by the liberal justices' dissents in the leading cases. The liberal advocacy mob and its patrons in the Senate have mobilized the same charges against supposedly "activist" judicial nominees. A respected, Reagan-appointed appellate judge with an ability to translate legal doctrine into English, Noonan could have sparked a broad public debate and, perhaps, induced the justices to rethink. He writes explicitly for these purposes--and fails.

Noonan draws the important and underappreciated distinction between states' rights and a constitutional federalism, suggesting that he defends federalism. But then he goes on to write, "There's nothing to support the view that [state] immunity was part of the constitutional design or inherent in its plan." Nothing? Noonan himself is forced to concede that Hamilton, Madison, and Marshall--the leading nationalists of the Founding era--recognized some realm of state immunity. Federalism cannot function without it. The Fourteenth Amendment authorizes Congress to enforce rights; it provides no authority to create new rights. But Judge Noonan opposes state immunities only incidentally--because he opposes any limit to congressional authority. He is no federalist; he is an adherent of the dogmatic nationalism that Robert F. Nagel, in his splendid "The Implosion of American Federalism," has identified as the source of the hysterical opposition to the Rehnquist Court's federalism decisions.

The Court's extra-constitutional states' rights decisions remain troublesome, insofar as fidelity to the constitutional text is a vital means of constraining willful judges. The root of that problem, though, is not states' rights ideology but a judicial failure to identify and protect the areas that Congress "has clearly no right to meddle with." The Court has not narrowed "the nation's" powers. At most, it has narrowed congressional powers. The true federalism problem is that the Court has not done nearly enough of that.

--Michael Greve