In Part 4 of my series about First Circuit nominee David J. Barron (Part 1, Part 2, & Part 3), I will discuss two implications of Barron’s radical left-wing judicial philosophy. (For those who haven’t yet read my previous posts, Barron’s nomination is currently held up because an unlikely left-right coalition, now including the New York Times, demanded the release of his OLC opinion blessing the use of drone strikes against American terrorists overseas.) As I previously noted, Barron’s chief concern with constitutional law seems to be not the faithful exposition of existing laws, such as the Constitution and federal statutes, but the creation of a “progressive constitutionalism” that will use the federal courts to advance “progressive” political goals.
This post focuses on two areas in which this “progressive constitutionalism” might take shape, namely, federalism and the public and private spheres. As we will see, Barron treats federalism as if it were nothing more than a political tool, and treats the existence of a private sphere as something that only exists at sufferance of the government.
As you know, federalism is the obvious fact that the Constitution divides powers between the states and the national government. Barron’s vision of federalism turns the constitutional balance on its head in an effort to achieve progressive policy goals by giving states more authority to enact stringent regulations of commerce and by giving the federal government more power in the social sphere, presumably to liberalize abortion and marriage laws.
Americans have always debated what the proper allocation of powers should be, but it is unquestionable that under the Constitution, the national government’s powers are (as James Madison put it in Federalist No. 45) “few and defined” and that the state governments’ powers are “numerous and indefinite.” The Tenth Amendment makes these assumptions explicit, stating “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” (emphasis added).
The notion that there might be some federalism-based limits on national power, after all, is not senseless. But there is precious little in the Constitution’s text or the history of its adoption that compels the particular conservative allocation of national and local powers favored by the Rehnquist Court.
Barron’s argument is intended to undermine the idea that the Constitution’s text and structure require the Rehnquist Court’s belated rediscovery of federalism-based limits on national power, thus elevating his own non-textual, “progressive” ideas about the Constitution to the same level. As he explicitly urges progressives in an article published in the Fordham Law Review, “[A]ny Justice who has anything like a substantive constitutional vision should also be expected to have some such conception of the proper vertical allocation of powers and one that will promote rather than undermine that vision.” By “substantive constitutional vision,” Barron is referring to the “progressive constitutionalism” that I discussed in Part 2.
But it is amazing that Barron can only find “precious little” certainty about the Constitution’s division of powers. The text is clear enough; the enumerated federal powers and the reservation of powers to the states and citizens should make the constitutional vision clear. And the history goes into even greater depth.
For example, and contrary to what Barron suggests, federal pre-emption of state and local economic regulations is not some sort of arbitrary “conservative” move by the courts. For one thing, the Supremacy Clause ensures that laws passed under Congress’s enumerated powers cannot be sabotaged by any individual state. This was one problem with the Articles of Confederation that the Constitution would solve. As Alexander Hamilton pointed out in Federalist No. 22:
The interfering and unneighborly regulations of some States, contrary to the true spirit of the Union, have, in different instances, given just cause of umbrage and complaint to others, and it is to be feared that examples of this nature, if not restrained by a national control, would be multiplied and extended till they became not less serious sources of animosity and discord than injurious impediments to the intercourse between the different parts of the Confederacy [referring to the Articles of Confederation].
There are other examples. Hamilton emphasized in Federalist No. 11 that vesting interstate commercial regulation within the exclusive power of the federal government would benefit the whole nation by encouraging foreign trade.
I’m no fan of the Supreme Court’s Commerce Clause jurisprudence as a whole, but there’s no denying that in the early days of the Republic, Hamilton won this point by securing ratification of the Constitution with both the Commerce and Necessary and Proper Clauses. There is no clause giving Congress a power of “social regulation,” so Barron’s proposal to expand federal power in that sphere seems to rest completely on wishful thinking.
If Barron’s objection seems odd to you, remember that Barron’s entire enterprise is designed to encourage liberals to be less bashful about using constitutional law as a tool of their politics. For him to defeat the claims of originalism, Barron has to pretend that originalist constitutional analysis is nothing more than a “conservative” version of the sort of legal agenda he is creating for progressives, even though he often (in this essay and in other works) expresses consternation that originalist legal analysis doesn’t always lead to “conservative” results. That’s why later in his essay, Barron can cast a vision of economic and social powers that reverses the allocation actually stated in the text of the Constitution and still say, without evident embarrassment, that his vision “has a constitutional pedigree that is at least as legitimate as the conservative one it would displace.”
While Barron doesn’t make clear what he means by “constitutional pedigree” (perhaps Progressive Era or Warren Court judicial precedent?), his vision is so atextual and ahistorical that it can only be attributed to his “progressive” political views. Even the progressive results he seeks would not be achieved in a particularly principled manner. His arguments seem not to rest on why a different allocation of powers would be good as a general matter, but rather on which allocation would lead to his favored results in today’s political climate. While he may currently find the federal government’s regulation of commerce too lax and states’ regulation of social matters too strict, there is nothing preventing him from reversing his vision as the political winds change.
When a man has built his career around telling progressives how to use constitutional law to accomplish their policy goals ascends the federal bench, we should not expect him to stop just because he puts on a robe.
2. Public and Private Spheres
In his zeal to contradict everything “conservative” about the Supreme Court’s jurisprudence, Barron has made clear that he doesn’t believe that there is any realm of life that is truly “private” and considers it something of an oddity that the Supreme Court would recognize the existence of a “free world” where government is absent. His essay entitled “Privatizing the Constitution: State Action and Beyond” criticizes theoretical boundaries on the modern “state action” doctrine as articulated by the late Justice Rehnquist, which generally says that the Constitution only limits the conduct of the government, not that of private actors.
Barron’s essay is especially critical of Rehnquist’s idea that the state is absent from certain sorts of transactions and situations. Barron dismissively describes Rehnquist’s view as articulating a world in which there is “either coercion or freedom.” In Barron’s view, the state is involved simply by noninvolvement; acts and omissions are equally representative of policy choices by the state. In this scheme, private action takes place “at the state’s sufferance.” To Barron, the idea that child abuse from a parent is not a Due Process Clause violation (as Rehnquist wrote in the heartbreaking case of DeShaney v. Winnebago County) was an example of “privatizing.” He also criticizes Rehnquist’s majority opinion in United States v. Morrison, which showed that the federal government did not have power under the Commerce Clause or the Fourteenth Amendment to create a federal civil rights claim for personal gender-based violence.
As before, Barron’s thoroughgoing commitment to judging as concealed policymaking is on full display. Barron asks why Rehnquist thinks the private/public distinction is “attractive,” as if deciding cases is some sort of beauty contest. Barron also accuses Rehnquist of “avert[ing] his eyes” from state involvement in DeShaney. Barron is so enmeshed in the law-as-policymaking paradigm that he considers it noteworthy and significant that Rehnquist could consider “the ‘free world’ as a mandatory fact the government must respect, rather than an option government may choose to recognize.”
Is it really possible that the President’s nominee believes that “free world” exists only at the sufferance of the government? Chilling.