Windsor and the states' power to define federal constitutional rights: Does Kennedy revive Justice Harlan's Theory of Rights?

For federalism fans, the most interesting aspect of Windsor is its recognition that state law can define, at least in part, the scope of federal constitutional rights by (for instance) defining what constitutes an arbitrary classification under the Fifth Amendment's Due Process clause. On this theory, the feds are more constrained by national constitutional rights than are the states, because individual states can go different ways in deciding whether a particular classification is arbitrary in ways foreclosed to the feds, "opting out," as it were from the right that the feds must honor.

Such a position is not novel: The patron saint of this point of view was Justice Harlan the Younger, who repeatedly invoked the idea that rights against the federal government ought to be construed more broadly than analogous rights against the state governments. The Court in MacDonald v. City of Chicago specifically asserted that "[t]ime and again, [Harlan's] pleas failed" to win support from the Court. But did Harlan's ghost smile today, because Windsor vindicated his view?

Hints of Harlan's theory that states get special latitude to define national rights have been cropping up in a variety of opinions. It is a familiar principle that state law helps determine the scope of what's an "unusual" punishment under the Eighth Amendment, and state law determines in part what counts as an "actual injury" sufficient to support Article III standing in Newdow and Massachusetts v. EPA. State law also plays a major role in defining "property" under both the procedural aspect of the Due Process clause and the Just Compensation clause, and, of course, SCOTUS likes to "count states' in defining substantive due process rights. In declaring states' "historic and essential authority to define the marital relation" can define "the recognition, dignity, and protection of the class in their own community," thereby transforming the classification in section 3 of DOMA into an "unusual deviation from the usual tradition" that therefore deprives couples recognized as married by state law of Fifth Amendment due process (Slip opinion at 14, 20-21), Windsor fits within this longstanding idea that subnational law can influence the scope of federal rights. (Kudos to Ernie Young for his amicus brief, cited at page 23 of Kennedy's opinion: That brief's fingerprints ideas and rhetoric of that brief seem to be all over the majority opinion).

Although state law's role in defining federal rights is nothing new, that role is constantly embattled, because it offends what I have called "rights fundamentalism" -- the notion that, because a right is very important, the right must be defined uniformly across jurisdictions. McDonald v City of Chicago invoked this idea in holding that the Fourteenth Amendment's incorporation of the Second Amendment must be enforced against the states just as the actual Second Amendment is enforced against the feds.

I suspect that "rights fundamentalism" -- the notion that national rights must be uniformly defined across the continent and cannot be affected by state borders or laws -- led to some muddled language in the majority opinion. That opinion made the odd assertion that “it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution” because “[t]he State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism” (Slip opinion at 18). Of course, the majority opinion is specifically using "principles of federalism" to define the scope of Fifth Amendment rights, making Kennedy's statement seem perplexing. Justice Scalia's dissent exploited this statement's oddity to gibe that the majority was "fooling many readers, I am sure, into thinking that this is a federalism opinion" by invoking states' traditional role over marriage even while simultaneously disavowing reliance on federalism (Slip opinion at 15).

The oddity of the majority's statement about the irrelevance of the "principles of federalism" vanishes, however, if one substitutes the "doctrine of enumerated powers" for "principles of federalism." That the majority opinion would conflate these two different concepts is not surprising when one recalls the prevalence of the notion, reflected in decisions like McDonald, that national rights and federalism just do not mix.

There is no good reason for such a confined notion of "principles of federalism." As Justice Harlan argued, principles of federalism have relevance beyond construing Congress' enumerated powers: Such principles can properly lead to a broad reading of rights exclusively against the federal government just as they can lead to a narrow reading of rights against the state governments. Only a (to my mind) misguided notion of "rights fundamentalism" keeps judges and scholars and laypeople from accepting this notion that forcing the states and the feds to follow the same one-size-fits-all definition of rights has costs not only for federalism but also for individual liberty and equality. The SCOTUS's actions reflect this Harlan-esque truth: Maybe their rhetoric should follow suit.