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Monday, March 10, 2008

A question for Rick Garnett on Conservatives & Federalism

As long as I am on the topic of the Federalists, I might as well repeat a question to Rick Garnett that I asked him on our panel at the Federalist Society – to whit, why don’t good Federalist Society members support the Court’s decisions in Grutter, Kelo, and Locke v Davey?

All of these are Rehnquist Court decisions in which the Court refused to enforce controversial theories of rights out of deference to state institutions (public universities, urban redevelopment authorities, state constitutions, respectively). If you hate Roe v Wade because it enforced a controversial theory of rights in an area where the nation was hotly divided and where federalism seemed to be working as a way to respect both sides of the decision, then should you not like the Rehnquist Court’s willingness to abstain from nationalizing its favorite conservative rights?

And yet I find that my conservative friends dislike these three decisions. Should I infer that conservatives’ embrace of federalism is opportunistic? Or is there something special about controversial rights to a color-blind constitution, equal access by religious believers to public money, and property owners’ rights to be free from eminent domain that I am missing? (Note that all three of these rights are rather difficult to defend in terms of text or original understanding of the Fourteenth Amendment).

Posted by Rick Hills on March 10, 2008 at 10:03 AM | Permalink

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Comments

In a word, yes. Regardless of what side of the aisle we're talking about, my impression has always been that substantive preferences trump structural principles. The dominance of Republicans in the federal government during the past ten years provides a helpful object lesson. During the long pre-94 period when conservatives were the minority party in DC, they adopted largely anti-regulatory, pro-state, fiscally restrained positions.

With the 1994 election and then the election of Bush II, though, the Republicans began to take positions inconsistent with each of these. Spending skyrocketed (mostly due to the Iraq War, but also due to conservative domestic policies); the reach of federal programs (where sympathetic to conservative causes) broadened; and the feds imposed their will on the states (e.g., enforcing federal policy at the expense of dissenting state opinions on medical marijuana or right-to-die issues).

Nor is this purely a conservative tendency. A friend recently made the interesting move of linking Larry Tribe's reversal on the Second Amendment to the fact that leftists are increasingly disempowered in American government. If that's the case, it's unsurprising that we'd see them begin to take positions in favor of enhancing our ability to resist state authority (e.g., individual rights to own guns), because they perceive that authority as a threat to their interests.

Posted by: Dave | Mar 10, 2008 8:39:26 PM

This is a red herring argument in favor of the Court's decision in Grutter, which wrongly upheld racial preferences that flouted clear statutory language, not just past court rulings regarding the meaning of the 14th Amendment.

Grutter was wrongly decided under any theory of judicial review (and not an example of "deference" or "judicial restraint"), because the express language of Title VI of the Civil Rights Act bans race discrimination, without any exception for "diversity," and "racial balance," the actual motive of the university in that case, is expressly declared not to be a legitimate form of desegregation by the language of another section of the Civil Rights Act.

The 14th Amendment may, in the eyes of some, not create a broad prohibition against racial discrimination. But Title VI's express language surely does contain a general ban on race discrimination (as does 42 USC 1981, which the Grutter plaintiffs argued provided an independent statutory basis for striking down the racial preference they were challenging).

The clearest duty of the courts is to enforce statutes passed by Congress without judicial evasion or rewriting. Rewriting a statute to permit an illegal practice is not "deference" or "federalism," it is judicial activism at its worst.

Posted by: Hans Bader | Mar 10, 2008 1:31:36 PM

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