|BOOKS IN BRIEF
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.