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Facial Challenges, Legislative Purpose, and the Commerce Clause
Abstract
Over the past decade or so, the Supreme Court has issued an extraordinary and highly controversial series of decisions concerning the scope of Congress's power. Yet beneath the surface of the debate over the federalism cases lies a parallel dispute that has received far less scholarly notice. This dispute concerns the proper mode of judicial review in cases testing the scope of congressional power. The uncertainty is greatest in the Commerce Clause area, where the Court's recent casesincluding its 2005 decision in Gonzales v. Raichhave shown a strong preference for facial challenges, in sharp contrast to the Court's traditional inclination toward as-applied review. This Article explores several possible rationales for the Court's use of facial review in Commerce Clause cases and concludes that the soundest explanation lies in an understanding of the Clause's meaning that incorporates a requirement of appropriate legislative purpose.
The Supreme Court’s decision to invalidate a legislative enactment involves both the choice to strike as well as the choice whether to invalidate the statute on its face or as applied. Both choices implicate the possibility of counteraction by the legislature. In this paper, we evaluate the justices’ choices to invalidate a state or federal enactment on its face or as applied and find that the justices are responsive to congressional preferences concerning the substance of the legal challenge at both stages of judicial review. Other factors systematically affect the justices’ decisions as well, including the legal basis for the challenge, the statutory scope of the constitutional challenge, the president (through the solicitor general), and interest groups’ amicus filings. These findings suggest that the Court’s exercise of judicial review is significantly influenced by Congress and by other contextual, legal, and political factors, both as to the choice to strike as well as to the method of constitutional enforcement.
This essay, a Comment for the Harvard Law Review’s November issue on the 2011 Supreme Court term, offers two alternative accounts of Chief Justice Roberts’s opinion in NFIB v. Sebelius. On one account, his opinion is predominantly motivated by institutionalist concerns with preserving the legitimacy and stature of the Court. From this perspective, the analytic contrasts in the Chief Justice’s treatment of the commerce, tax, and spending powers reflect two conflicting institutionalist imperatives: pulling the Court out of the political fray and underscoring the Court’s role as enforcer of constitutional limits on Congress. On the other account, the different parts of the Chief Justice’s opinion are closely linked and all share a libertarian resistance to compulsory measures in favor of choice and incentives. Both accounts are true and NFIB’s future impact will turn on which impulse — institutionalism or anticompulsion — proves more ascendant in the Chief Justice’s approach to federal power. Moreover, despite appearing to signal new judicial scrutiny of federal spending and regulatory measures, NFIB’s judicial import will likely be more limited. Instead, its prime impact will be felt in federal-state negotiations in the administrative sphere.
The Justices of the U.S. Supreme Court have frequently insisted that "facial challenges " to the validity of statutes are and ought to be rare. Based partly on an empirical survey of all cases decided by the Court during six selected Terms, this Article reveals that assumption to be empirically false and normatively mistaken. Error on this point reflects broader confusions and misunderstandings. For example, it is not true that only a few especially stringent constitutional tests frame facial challenges. Even the rational basis test sometimes yields the conclusion that statutes are invalid in toto. The conventional wisdom also errs in positing that the Supreme Court can cure a statute's facial defects merely by invoking a general "presumption of severability " under which, in a future case, any of a statute's invalid applications can be separated from valid ones. Besides revising the conventional wisdom about facial challenges, this Article locates the root of misunderstanding in the rhetoric of a relatively small number of much-cited cases. It also begins the reconstructive task of explaining when facial challenges do and do not succeed. That explanation has three parts. First, there is a crucial linkage between rulings of facial invalidity and the breadth of the reasons that the Supreme Court gives in upholding constitutional challenges. Second, the Court is often inattentive to severability issues, and its practice must be understood accordingly. Although this Article advances important rationalizing generalizations, it explains why the Court's approach to severability cannot be captured in rigid rules. Third, many Supreme Court decisions rejecting facial challenges are best understood as finding facial challenges to be unripe, rather than categorically unavailable.
The constitutionality of federal legislation sometimes turns on the presence and sufficiency of Congressional findings of predicate facts, such as the effects of conduct on interstate commerce, state discrimination justifying the abrogation of sovereign immunity, or market failures justifying intrusions on free speech. Sometimes a Congressional committee makes these findings in legislative history. Other times, Congress recites its findings in a statutory preamble, thus enacting its findings as law. Surprisingly, the Supreme Court has not distinguished between enacted and unenacted findings in deciding how much deference to accord Congressional findings. This is striking because the difference between enactedness and unenactedness is so vigorously contested on questions of statutory interpretation, with textualists objecting to any reliance on legislative history and even purposivists conceding some risks. Both formal and functional considerations suggest that the enactedness line should be significant for constitutional questions as well. This is not because Congress has some comparative advantage in finding legislative facts more reliably than other governmental institutions, which is pervasively assumed but unrealistic. Rather, Congress’s strongest claim for judicial deference is that legislative findings are highly normative and hence squarely within the legislative power. Recognizing this characteristic of modern factfinding clarifies and strengthens the claim for deference — but only as to findings satisfying the constitutional requirements of bicameralism and presentment.
The text, structure, and history of the Intellectual Property Clause (IP Clause), as well as subsequent governmental activity, Supreme Court doctrine, and policy, show that the IP Clause limits Congress from using any of its other powers "To promote the Progress of Science and useful Arts" through laws that reach beyond the power conferred by the IP Clause to "secur[e] for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." That is, the evidence marshaled by this Article shows that the IP Clause externally limits Congress from seeking, via legislation, to promote the progress of science and useful arts, in any way other than by enacting laws that secure to authors and inventors exclusive rights in their writings and discoveries for limited times. Yet the story of Congress's power in this area has another side: Since the late twentieth century, Congress has increasingly reached beyond the IP Clause's means to promote the Clause’s ends, often asserting its expansive—and less limited—commerce and treaty powers. To some degree, this shift reflects the fact that laws regulating intellectual property often have multiple purposes, including trade and foreign relations interests, which sometimes point in more expansive directions than do those of the more limited IP Clause. This Article synthesizes these competing purposes and provides an analytical framework under which courts, legislators, and others can assess the constitutionality of federal legislation. This framework affords a presumption against the constitutionality of laws that promote the IP Clause's ends but subvert its means, a presumption that may be overcome only by clear and convincing evidence that Congress, pursuant to its other more permissive powers, intentionally chose to supersede the IP Clause's means because of paramount, legitimate interests. This framework suggests that a number of existing federal laws, such as federal trade-secrecy provisions and antibootlegging laws, might be unconstitutional. The framework also suggests how to assess the constitutionality of laws that would protect databases, laws passed pursuant to international agreements with other countries, and laws that establish federal funding for scientific and artistic works.
The Supreme Court's decision to invalidate a legislative enactment involves both the choice to strike as well as the choice whether to invalidate the statute on its face or as applied. Both choices implicate the possibility of counteraction by the legislature. In this paper, we evaluate the justices' choices to invalidate a state or federal enactment on its face or as applied using a Heckman probit technique, and find that the justices are responsive to both Congressional preferences over the substance of the challenged enactment, as well as the Court's ideological position relative to the two chambers of Congress. These findings suggest that the Court's exercise of judicial review is significantly influenced by Congress, both as to the choice to strike as well as to the method of constitutional enforcement.
In several Supreme Court decisions this decade, the question of whether a constitutional attack on a statute should be considered “as applied” to the actual facts of the case before the Court or “on the face” of the statute has been a difficult preliminary issue for the Court. The issue has prompted abundant academic discussion. Recently, scholars have noted a preference within the Roberts Court for as-applied constitutional challenges. However, the cases cited as evidence for the Roberts Court’s preference for as-applied challenges all involve constitutional challenges which concede the legislative power to enact the provision but nevertheless argue for unconstitutionality because the statute intrudes upon rights or liberties protected by the Constitution. Of course, this is not the only type of constitutional challenge to a statute; some constitutional challenges attack the underlying power of the legislative branch to pass the statute in question. Modern scholarship, however, as well as the Supreme Court, has mostly ignored the difference between these two different types of constitutional challenges to statutes when discussing facial and as-applied constitutional challenges. In glossing over this difference, considerations which fundamentally affect whether a facial or as-applied challenge is appropriate have gone unnoticed. By clearly distinguishing between these two very different types of constitutional challenges, and the respective role of a federal court in adjudicating each of these challenges, a new perspective can be gained on the exceedingly difficult question of when a facial or as-applied challenge to a statute is appropriate. In this Article, I argue that federal courts are constitutionally compelled to consider the constitutionality of a statute on its face when the power of Congress to pass the law has been challenged. Under the separation of powers principles enunciated in I.N.S. v. Chadha and Clinton v. New York, federal courts are not free to ignore the “finely wrought” procedures described in the Constitution for the creation of federal law by “picking and choosing” constitutional applications from unconstitutional applications of the federal statute, at least when the statute has been challenged as exceeding Congress’s enumerated powers in the Constitution. The separation of powers principles of I.N.S. and Clinton, which preclude a “legislative veto” or an executive “line item veto,” should similarly preclude a “judicial application veto” of a law that has been challenged as exceeding Congress’s Constitutional authority.
El análisis de la validez constitucional de una norma no puede limitarse a un mero control formal o adjetivo; es necesario un control constitucional de razonabilidad y proporcionalidad sobre el contenido mismo de la norma: los medios arbitrados y sus fines, y su respeto por los derechos fundamentales. El trabajo pretende exponer las cualidades principales del principio de razonabilidad -o de proporcionalidad, tal como se lo reconoce en el derecho continental-, y esbozar las pautas y reglas para una correcta aplicación. La máxima de razonabilidad se analiza en este trabajo a partir de un estudio comparado de su funcionamiento en el derecho estadounidense, el derecho continental y el derecho argentino. El principio en cuestión no puede ser analizado sin referencia a la problemática de la interpretación de los derechos fundamentales, por lo que se realiza una aproximación a este tema, también a partir de la visión jurisprudencial, doctrinaria y constitucional en las distintas tradiciones jurídicas.
There is no such thing as a constitutional right, at least not in the sense that courts and constitutional theorists routinely assume. A leading strategy employed by constitutional discourse to legitimate and protect the privileged status of constitutional rights is to segregate sharply the superior realm of rights from the inferior realm of remedies. The right/remedy distinction in constitutional law serves to maintain the illusion that rights are defined by courts through a mystical process of identifying "pure" constitutional values without regard to the sorts of functional, fact-specific policy concerns that are relegated to the remedial sphere. This illusion is fundamental to the self-image and perceived legitimacy of constitutionalism and judicial review. In the actual practice of constitutional adjudication, however, the qualitative distinction between rights and remedies blurs, or even dissolves. No less than in contract and property law-where from Holmes to Calabresi and Melamed we have recognized that rights and remedies are functionally interrelated-rights and remedies in constitutional law are interdependent and inextricably intertwined. Drawing on illustrations from disparate areas of constitutional law, this Article develops a conceptual taxonomy of right-remedy relationships. The richer understanding of the types and typicality of right-remedy interaction that emerges potentially has sweeping practical and theoretical implications. In light of this understanding, the Article reconsiders the appropriate division of constitutional authority between courts and political branches; the notions that constitutional rights can be over- and under-enforced; the debate between "top-down" constitutional theorists like Ronald Dworkin and pragmatist, "bottom-up" critics dike Richard Posner and Cass Sunstein; and, most fundamentally, the purposes and legitimacy of judicial review.
In "Legal Positivism in American Jurisprudence," Anthony Sebok traces the historical and philosophical relationship between legal positivism and the dominant schools of American jurisprudence: Formalism, Realism, Legal Process, and Fundamental Rights. Sebok argues that formalism followed from the central tenets of Classical Positivism, and that both schools of thought were discredited--through misunderstandings--during the Realist period. Positivism's essential tenets were reasserted by Legal Process scholars, though soon thereafter misappropriated by politically conservative theorists. In the concluding chapters of the book, Sebok argues that the recent theory known as "Soft" Positivism or "Incorporationism" holds out the possibility of redeeming the liberal political credentials of positivism. In this Review Essay, Professor Leiter questions Sebok's jurisprudential analysis. In Part I, Leiter sets forth the central tenets of positivism, formalism, and realism. In Part II, he critiques each step in Sebok's jurisprudential argument. He shows that formalism has no conceptual connection with positivism, while realism is essentially predicated on a positivist conception of law. Moreover, Leiter finds that Legal Process has far greater affinities with Ronald Dworkin's jurisprudence than with positivism. Finally, Soft Positivism cannot redeem positivism's liberal credentials because positivism does not entail any political commitments in adjudication. Leiter concludes by questioning Sebok's acceptance of the correctness of Soft Positivism as a theory of law.
The federal judiciary sometimes declines to uphold constitutionally based claims, not because of any reading of the relevant constitutional clause itself, but rather because of "institutional" concerns such as federalism and judicial competence. Professor Sager argues in this Article that these constitutional norms are nevertheless valid to their full conceptual limits, and that when, in this sense, the constitutional norm is "underenforced," a distinction should be drawn between the extent to which the federal judiciary may enforce the norm and the extent the norm is otherwise valid and enforceable. It follows from Professor Sager's thesis that Congress and state courts must be allowed to enforce such constitutional norms fully despite the federal judiciary's reluctance to do so. In addition, the theory provides the basis of an argument that the Supreme Court, in contrast to the present trend, should refrain from reviewing state court decisions which construe constitutional rights more broadly than corresponding federal interpretations. Professor Sager's theory also provides a new explanation of Justice Brennan's "ratchet" theory of congressional power to define the scope of the fourteenth amendment, and explains why public officials are considered bound by constitutional norms even though institutional concerns may insulate their actions from judicial invalidation.
Is the Endangered Species Act constitutional? The D.C. Circuit considered that question in National Association of Home Builders v. Babbitt in 1997. More specifically, the case considered whether the congressional power to regulate interstate commerce authorized the ESA's prohibition upon building a large regional hospital in the habitat of an endangered fly that lives only in a small area of southern California. The three judges on the D.C. Circuit approached the question from three different perspectives: the relationship between biodiversity as a whole and interstate commerce, the relationship between the fly and interstate commerce, and the relationship between the hospital and interstate commerce. In this article, I argue that the constitutionality of such an application of the ESA depends upon three unanswered questions. First, I consider which effects can be aggregated for purposes of determining their effect upon interstate commerce, concluding that there must be some limit upon such aggregations. Second, I examine the potential effects that an activity may have upon interstate commerce, suggesting that Congress must provide a reasonable basis for believing that a particular resource will contribute to interstate commerce one day. And third, I consider which activities must be related to interstate commerce, arguing that the requisite effect can be judged based upon the activity that impacts an endangered species.
Constitutional doctrine is typically rule-dependent. A constitutional challenge is typically viable only if there exists a discriminatory, overbroad, improperly motivated, or otherwise invalid rule, to which the claimant has some nexus. In a prior article, Rights against Rules: The Moral Structure of American Constitutional Law, 97 Michigan Law Review 1 (1998), I proposed one model of constitutional adjudication that is consistent with rule-dependence (the Adler Model). Under the Adler Model, the function of reviewing courts is not to vindicate the personal rights of claimants but is instead to repeal or amend constitutionally invalid statutes and other rules. Professor Fallon now puts forward a different model of constitutional adjudication, equally consistent with rule-dependence. See Richard H. Fallon, Jr., As-Applied and Facial Challenges and Third-Party Standing, 113 Harv. L. Rev. 1321 (2000). Fallon suggests that a reviewing court should overturn the application of a constitutionally invalid rule to a given claimant if and only if that rule contains no valid severable "subrule" that includes the claimant; and he criticizes the Adler Model on various counts, in particular for severing the connection between constitutional adjudication and personal rights. In this response to Professor Fallon's article, I reply to Fallon's criticisms and, more generally, attempt to demonstrate that the Fallon Model is not supported by various considerations that might seem to favor it. The Fallon Model is a better account of rule-dependence than the Adler Model only if the Fallon Model better implements constitutional norms, and Professor Fallon has not shown or even tried to show that it does.
Both within the Supreme Court and among scholarly commentators, a debate rages about when litigants should be able to challenge statutes as "facially" invalid, rather than merely invalid "as applied." To a large extent, this debate reflects mistaken assumptions. There is no single distinctive category of facial, as opposed to as-applied, litigation. All challenges to statutes arise when a litigant claims that a statute cannot be enforced against her. In the course of as-applied litigation, rulings of facial invalidity sometimes occur, but they do not reflect trans-substantive rules governing a purported general category of facial challenges. Rather, rulings that a statute is facially (or partly) invalid are the consequence of the particular doctrinal tests applied to resolve particular cases. Some doctrinal tests call for statutes to be tested on their faces, whereas others do not. Accordingly, debates about the permissibility of facial challenges should be re-cast as debates about the substantive tests that should be applied to enforce particular constitutional provisions. Third-party standing rules introduce a further element of plurality into the forms of constitutional adjudication. The resulting doctrinal structure is diverse, but probably no more so than are the rights that constitutional litigation seeks to vindicate.
We live in extraordinary times. In the past year the Supreme Court of the United States has decided an election and installed a president. In the past ten years it has produced fundamental changes in American constitutional law. These two phenomena are related. Understanding the constitutional revolution that we are living through means understanding their connections.
The new occupant of the White House—we will call him “President” after he has successfully prevailed in an election conducted according to acceptable constitutional norms—has taken the oath of office and has begun to govern. But his claim to the presidency is deeply illegitimate. He and the political party that he leads seized power through the confluence of two important events that would have caused widespread outrage and produced vigorous objections from neutral observers if they had occurred in a third world country.
Increasingly, constitutional theorists are turning attention away from the modalities of constitutional interpretation (text, history, structure, etc.) and toward judicial outputs that, while featuring in constitutional adjudication, are something other than a court's determination of what the Constitution means. We might say that theorists are focusing less on constitutional meaning, more on constitutional doctrine. Despite this happy shift in emphasis, our collective understanding of the conceptual structure of constitutional doctrine remains woefully underdeveloped. For many, doctrine remains a conceptually undifferentiated mass of principles, reasons, tests, and frameworks. This is unfortunate, for no body of knowledge can long advance without self-critical classification. It is time, accordingly, to develop a functional taxonomy of constitutional doctrine. This Article takes a first and partial stab at such a taxonomy by distinguishing two components of judge-announced constitutional doctrine: statements of what the Court takes the Constitution to mean and instructions directing judges how to determine whether that meaning is complied with. Coining terms, I call the first type of doctrine a constitutional operative proposition, and the second type a constitutional decision rule. Drawing from such important recent Supreme Court decisions as Board of Trustees of the University of Alabama v. Garrett and Dickerson v. United States, this Article contends that vastly many constitutional doctrines are better understood not as judicial interpretations of the Constitution (operative propositions) but, rather, as instructions regarding how to decide whether the operative propositions are satisfied (decision rules). And it argues that recognizing the difference is likely to have broad consequences. For example, courts will better understand their own doctrines - better enabling them to sensibly revise and refine them - if they appreciate the respects in which a given doctrine communicates a decision rule rather than an operative proposition. Perhaps, say, operative propositions deserve greater stare decisis weight than do decision rules. Furthermore, this taxonomic distinction bears upon Congress's role in constitutional law-making. Although scholars frequently debate how much deference courts should accord Congress's constitutional interpretations, that is an infelicitous formulation of the issue. As Richard Fallon has recently taught, the truer, broader question concerns what role Congress should have in constitutional implementation. And judge-made constitutional decision rules may be congressionally defeasible where judicial operative propositions are not. Discrete payoffs from the operative proposition/decision rule distinction are valuable. But to focus narrowly on them risks missing the forest for the trees. Fundamentally, this Article offers an explicit (though partial) conceptualization of the logical structure of constitutional law - a conceptualization bearing a family resemblance to Monaghan's work on constitutional common law, Sager's exploration of underenforced constitutional norms, Strauss's defense of prophylactic rules, and Fallon's focus on constitutional implementation, yet reducible to none of them. This novel conceptualization makes better sense of much of contemporary constitutional scholarship and of many of the Supreme Court's most significant decisions. No doubt considerable distance toward a complete and precise taxonomy remains. But even incremental advances in detailing the conceptual map of constitutional adjudication can purchase large improvements in our ability to negotiate the terrain.
Constitutional rights are conventionally thought to be "personal" rights. The successful constitutional litigant is thought to have a valid claim that some constitutional wrong has or would be been done "to her"; the case of "overbreadth," where a litigant prevails even though her own conduct is permissibly regulated, is thought to be unique to the First Amendment. This "personal" or "as-applied" view of constitutional adjudication has been consistently and pervasively endorsed by the Supreme Court, and is standardly adopted by legal scholars.
In this Article, I argue that the conventional view is incorrect. Constitutional rights, I claim, are rights against rules. Constitutional reviewing courts operate at the same level of generality as legislatures. Their task is to evaluate statutes and other rules, in light of constitutional criteria, and to repeal or amend the rules that fail those criteria. The strength of the litigant?s personal claim is irrelevant. I defend this view of constitutional rights with specific reference to the case of conduct-regulating rules, and to the provisions in the Bill of Rights that provide the main (substantive) protection against conduct-regulating rules -- namely, the Free Speech Clause, the Free Exercise Clause, the Equal Protection Clause, and the substantive component of the Due Process Clause.
My view has wide implications, for a host of problems in federal courts and constitutional jurisprudence. For example, it suggests that classic justiciability doctrines such as "ripeness" and "standing" have no support in the nature of constitutional rights; their justification, if any, must be found elsewhere. It explains why constitutional doctrines are typically framed in terms of "tests" (e.g., narrow-tailoring tests, or anti-discrimination tests) that look to the predicate and history of rules. In particular, the view defended in my Article bears on the problem of "facial" and "as-applied" challenges -- a problem that, in recent years, has provoked considerable controversy at the Supreme Court. If constitutional rights are indeed rights against rules, then all constitutional challenges are "facial" challenges, and properly so. Relatedly, the "overbreadth" doctrine is misconceived; there is nothing unique to the First Amendment about the propriety of challenges by litigants who lack personal claims of constitutional wrong.
Herbert Wechsler, writing in 1954, recognized that aggressive judicial intervention to protect the states from Congress was inconsistent with original understanding and unnecessary. However, Wechsler's explanation of "political safeguards" does not explain the system of politics that has accounted for the continued success of American federalism for more than two centuries of practice. The Founders believed that any attempt by Congress to usurp State power could and would be thwarted by state officials' mounting popular political appeals. Unfortunately, no one anticipated the develop ment of political parties which swiftly replaced republican politics and eroded what the Founders had assumed would be a natural, permanent antagonism between state and national politicians. This new politics preserved the states' voice in national councils, however, by linking political fortunes of state and federal officials. It is this system of politics which has protected federalism and which renders the current Supreme Court's aggressive foray into federalism as unnecessary as it is misguided.
The Court is now striking down a variety of federal civil rights statutes as beyond Congress's power under Section 5 of the Fourteenth Amendment. In imposing limits on federal authority to enact civil rights laws, the Court has invoked a particular understanding of separation of powers in which the Court alone can interpret the Constitution, while Congress can use its Section 5 power only to enforce the constitutional interpretations of the Court. The article challenges this understanding, which it calls the "enforcement model" of Section 5, and contrasts it to an alternative account, in which Congress can enact Section 5 legislation based on its own interpretation of constitutional rights, even if Congress's interpretation diverges from the Court's. The article names this alternative account of Section 5 power the model of "policentric constitutional interpretation." For decades, Section 5 has served as a structural device that promotes policentric interpretation, and so fostered the democratic legitimacy of our constitutional order. The article develops its claims about the enforcement and policentric models of Section 5 power in a case study of the Family and Medical Leave Act of 1993 (FMLA), the Section 5 statute at issue in Nevada Department of Human Resources v. Hibbs. The article offers two critiques of the enforcement model. It demonstrates, first, that the enforcement model cannot generate criteria capable of distinguishing Section 5 legislation that enforces judicial interpretations of the Constitution from Section 5 legislation that enforces congressional interpretations of the Constitution. Without such criteria, judicial application of the model must depend instead on extrinsic considerations, like the Court's concerns about federalism or its attitude toward new forms of antidiscrimination law. The enforcement model thus leads to unaccountable decisionmaking, with the Court invalidating civil rights legislation on grounds that it neither names nor justifies. The article offers a second, and more fundamental, critique of the enforcement model. The enforcement model assumes that authoritative interpretation of the Constitution is best conducted by an institution that is insulated from all contact with politics. This assumption is false. Overlapping legislative and judicial enforcement of Fourteenth Amendment rights plays an important structural role in our constitutional system, because it links constitutional law to the larger constitutional culture of the nation. The article illustrates this thesis by a case study of the mobilization of the women's movement that gave rise to modern sex equality law, including the FMLA itself. The article shows how the movement's efforts precipitated a wave of congressional lawmaking in the 1970s that reflected a new constitutional vision of equality between the sexes. Eventually the Supreme Court followed Congress's lead and altered its Fourteenth Amendment doctrine to incorporate the evolving constitutional beliefs of the American people. Examining how Congress and the Court have in the past quarter century each understood questions of equal protection in matters concerning conflicts between work and family illustrates important institutional differences in the ways Congress and the Court enforce constitutional rights. As this history demonstrates, Congress's political responsiveness makes it the object of social movement mobilization and a unique register of the nation's evolving constitutional understandings. The policentric model of Section 5 power holds that Congress and the Court may each consider and incorporate the other's views, yet each also retains autonomy in judgment, so that the Court remains free to strike down any law that it believes threatens individual liberties or impairs structural values such as separation of powers or federalism. The policentric model thus preserves both the nation's rich legacy of legislative constitutionalism and the judicially enforced rights on which we have come to depend.
Courts can hold a statute unconstitutional either on its face or as-applied, and the standards courts use significantly affect the likelihood of a successful constitutional challenge. In this article, Professor Dorf analyzes the Supreme Court's facial challenge doctrine, which purports to restrict facial challenges to those cases in which a statute can be constitutionally applied in "no set of circumstances." Professor Dorf argues first that all persons have a right to be judged by a valid rule of law, and that the Court's current facial challenge doctrine can only be squared with this right if the Court is employing a presumption of severability-that unconstitutional aspects of a statute can be severed from constitutional ones by a process of judicial interpretation. Professor Dorf then discusses the limits imposed on this presumption of severability by both substantive constitutional law and institutional concerns. In analyzing the former, he argues that the First Amendment overbreadth doctrine, which the Court has recognized limits the applicability of the "no set of circumstances" test, should be and in fact has been applied outside the First Amendment context in a manner inconsistent with the facial challenge rule. He also argues that the facial challenge rule is inconsistent with principles of federalism, as it prevents federal courts from giving proper deference to state courts on issues of state law. Professor Dorf concludes that the Court's "no set of circumstances" test does not accurately reflect the Court's facial challenge doctrine, and recommends that the Court eschew categorizing constitutional challenges as either facial or as-applied, focusing instead on the underlying substantive and institutional issues.
On Monday, November 29th, 2004, at 10:30 a.m., I rose to argue the case of Gonzales v. Raich in the Supreme Court on behalf of Angel Raich and Diane Monson. On Monday, June 6th, 2005, at 10:00 a.m., the Court announced its decision. Even today it is painful to read the opinions in the case. I am saddened for my clients, and the thousands like them, whose suffering is alleviated by the use of cannabis for medical purposes, as recommended by their physicians and permitted by the laws of their states, but who are nevertheless considered criminals by the federal government. I am saddened for the millions of voters in the ten states who enacted compassionate relief laws to allow these seriously ill persons to obtain cannabis without becoming criminals, at least under state law. And I am saddened for the Constitution, which established a system of limited and enumerated powers that had been virtually eliminated since the 1940s before being partially revived in the cases of United States v. Lopei and United States v. Morrison. . . . with its decision in Raich, six justices at once dashed the hopes of medical cannabis users and those who believe in the value of federalism to protect individual liberty. Given this setback, what hope is left for the principle of limited national power, so staunchly endorsed by the late-Chief Justice Rehnquist in his opinions in Lopez and Morrison? Will the New Federalism survive the demise of its greatest champion? The superb articles in this Symposium do little to raise hopes. They argue alternatively that Lopez and Morrison never comprised a serious federalism revival, that the doctrines announced by these cases were too unstable to have lasted, or that little, if anything, of these cases survives the Court's ruling in Raich. In this Foreword, I do not mean to take issue with any of these contentions, except perhaps the last, and I urge serious students of the Constitution to read each and every article in this issue. Instead, I intend to describe how a future majority of the Supreme Court, once again willing to apply the "first principles,,6 announced by the Chief Justice in Lopez and reaffirmed in Morrison-principles that no Supreme Court in our history has ever expressly disclaimed--can limit the Court's decision in Raich. Where there is a will to do so, there is certainly a way.
In the conventional view of much political philosophy and constitutional theory, constitutional rights are conceived as trumps through which individualistic interests take priority over democratic judgments concerning the common good. This view reasons outward from conceptions of the person to define the rights necessary to protect individualistic interests in autonomy, or dignity, or liberty, or personhood. Both defenders and critics of "liberal rights-oriented constitutionalism" typically share this conception of constitutional rights. In contrast, this article argues that, in the actual practice of American constitutionalism, rights are best described as functioning in a different way. Rights are linguistic tools the law uses to define the differentiation between various institutional domains of authority. Rather than protecting atomistic interests against appeals to the common good, rights enable the creation of various common goods or institutional structures: the distinct spheres of public education, and electoral politics, and religion, and many others. Much emerging scholarship in specific fields of constitutional law can be synthesized through this more general re-conception of constitutional rights practice. A number of implications follow, including the proper role of governmental purposes in rights adjudication, the irrelevance of balancing rhetoric, the relationship between rights and democratic politics, and more generally, the way liberal political theory and rights-oriented constitutionalism are understood.