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This Week in Judicial Supremacist Arrogance: City of Boerne v. Flores at Twenty

I’m stealing a page from Ed Whelan’s playbook and launching a series of (occasional) commemorations of acts of unbridled judicial chutzpah.  Ed’s series focuses on judicial activism – judicial interpretations that flout governing law.  Mine will highlight assertions of judicial supremacy – the Supreme Court’s arrogant claim that its interpretations of the Constitution, right or wrong, are binding on all other actors in our constitutional system.

The claim of judicial supremacy of course cannot be squared with constitutional text, structure, or evidence of original understanding. (This is a recurrent theme in my academic writing.  Two years ago, for Bench Memos, I wrote a series of five posts dedicated to this theme: here, here, here, here, and here.)   Nonetheless, predictably enough, the claim of judicial supremacy is affirmed by a wealth of self-serving judicial precedent. 

The immediate occasion for starting this series is the twentieth anniversary, this past Sunday, of City of Boerne v. Flores.  (Planned Parenthood v. Casey, winner of the Grand Prize for judicial arrogance, suffers its twenty-fifth anniversary later this week.) 

In City of Boerne, the Court held that the requirements of the Religious Freedom Restoration Act of 1993 (“RFRA”) were unconstitutional insofar as they applied to state governments. The Court held – contrary to text, structure, history, and precedent – that Congress’s power to “enforce” the provisions of the Fourteenth Amendment against states, pursuant to section five of the amendment, is limited to enforcing the Court’s understanding of those provisions. 

RFRA took as its starting point a broad understanding of the religious liberty protected by the Free Exercise Clause of the First Amendment. The Court had, just three years earlier, in Employment Division v. Smith (1990), adopted a narrow reading of the Free Exercise Clause – departing from its earlier precedents, which had adopted a broader view of the clause.  Congress sought to restore that earlier, broader protection of religious liberty by means of a statute.  The Court in City of Boerne held that Congress was constitutionally forbidden from enforcing against state governments any broader understanding of religious liberty than set forth in the Court’s current judicial doctrine – even though that broader understanding had been the Court’s own doctrine for nearly thirty years. 

The Court in City of Boerne seemed to take umbrage at the impudence of Congress in not going along with the Court’s new understanding in Smith.  The Court’s framing of the case fairly drips with contempt for Congress’s act of constitutional disagreement.   Congress’s rather direct disagreement with Smith appeared to be a significant factor in the Court’s decision. “Legislation which alters the meaning of the Free Exercise Clause cannot be said to be enforcing the Clause,” the Court explained.  (Didn’t they know?  Only the judiciary can alter the meaning of the Free Exercise Clause!)

How many different ways is City of Boerne wrong?  Put to one side for a moment the fact that Employment Division v. Smith was a deeply questionable decision on the merits of its interpretation of the Free Exercise Clause in the first place. (The broad understanding of Free Exercise is the better view.  But that is not my primary point here.)  The core problem with City of Boerne is the judicial supremacist conceit that the Court is the only truly authoritative constitutional interpreter. The Constitution’s meaning, under the approach of the Boerne opinion, actually goes up (and down) with the Supreme Court’s decisions.  Congress’s power “to enforce” generally-stated limitations on state governments “by appropriate legislation” is limited to implementing the Court’s diktats.  Congress’s enforcement power is hitched to the Court’s activist wagon, wherever it goes at any particular point in time.  Congress has no independent interpretive power in enforcing the Fourteenth Amendment.  The Supreme Court is the boss.  Congress is the assistant or adjunct. 

There are at least four related reasons why this is conception is way off the mark. 

1.  The first is that it rests on a basic misunderstanding concerning judicial power to invalidate legislative acts when the Constitution is indeterminate (or “under-determinate”).  Here’s the right answer, simply put: where the Constitution’s broad or unspecific language admits of a range of possible actions by government, each consistent with the language, government action falling within that range cannot rightly be held by the courts to be “unconstitutional,” because it does not violate a rule supplied by the text.  Unspecific texts are not grants of enlarged judicial power.  Just the opposite: the Constitution’s default rule is representative democracy.  Unspecific texts, to the extent of their un-specificity, permit a range of legitimate interpretation and application by political decision-makers.  

The only question is which level of representative democracy – Congress or state governments – has the superior claim of representative power.  With respect to the Fourteenth Amendment, the answer is easy.  The Fourteenth Amendment enlarges federal power over state action.  That enlargement primarily increases the power of Congress, not that of the courts.  (Toward the end of this post, I will quote the leading Reconstruction-era case of Ex parte Virginia for much the same proposition.)

In principle, then, the consequences of textual ambiguity thus have starkly different implications for the powers of different institutions.  Courts cannot rightfully invalidate state laws that fit within the range of meaning afforded by a broadly worded, indefinite text.  (That is probably the best argument for the holding in Smith, though I still think it unsatisfactory.)  But by the same token, courts should uphold federal laws enforcing the Fourteenth Amendment’s general terms if Congress’s understanding and application of those terms fits within the range of meaning of the text that Congress is empowered to enforce.

The enforcement power conferred by Section Five looms large in this regard.  The Fourteenth Amendment is a sweeping power-grant to Congress – a power-grant keyed to the enforcement of broadly and generally worded prohibitions on state action denying (unspecified) privileges or immunities, (undefined) due process, and (vaguely stated) equal protection of the laws.  It follows that Congress has significant discretion to enforce its understanding of what these concepts require.  And it has more discretion – and thus more power – than the Court does.  This is simply because of the different consequences of indeterminate language for the exercise of judicial power and for a broad grant of legislative power to enforce that indeterminate language. 

Put another way: The broader one’s understanding of the language of section one of the Fourteenth Amendment, the less one can say that it authorizes federal judicial invalidation of state action that fits within the range of meaning admitted by such broad language; but the more one can say that the grant of federal legislative power over such a broadly-described subject matter authorizes broad congressional choice in such matters. 

The merits or demerits of Smith remain relevant in this respect:  Was Congress enforcing a view of the Fourteenth Amendment fairly within the range of meaning afforded by its broad language?  Was Congress’ view of religious liberty within the legitimate range of meaning of the Free Exercise Clause, as made applicable to the states?  Obviously if Smith is flat-out wrong in its interpretation of Free Exercise, and RFRA right, this is an easy case. But even if Smith’s rule were thought to be somewhat the better reading of Free Exercise, that does not resolve the question of whether Congress’s enforcement power might legitimately be premised on a broader reading. 

Unless, that is, one first assumes that the Court, above and essentially to the exclusion of everybody else, is the single authoritative expounder of the Constitution’s meaning. That is the premise Boerne takes as its starting point and its ending point.  And that is the core error, and arrogance, of the opinion. 

2.  Second, this fundamental proposition about judicial versus legislative power finds specific confirmation in the structure and history of the Fourteenth Amendment.  As a matter of history, the amendment’s text had its origins in the desire to empower Congress – not the Court – to legislate in matters concerning rights, privileges, and equality.  In part, the motive was simply to provide a more secure constitutional basis for what Congress had already done in enacting the Civil Rights Act of 1866 (which originally was based, more questionably, on the power to enforce the Thirteenth Amendment’s prohibition of slavery). 

The means originally chosen was a sweeping, McCulloch v. Maryland-echoing power to enact laws Congress deems “appropriate” to the protection of rights stated in broad, generic categories, originally proposed as a freestanding power-grant provision.  That expansive grant of power survived (in slightly revised form) the various drafting alterations in the amendment’s text, including the addition of what became sections two, three, and four of the amendment and the reformulation of what became section one of the amendment to limit state action (and thus not to empower Congress to legislate directly on individuals absent some violation or default of duty by the state). The broad grant of legislative power became embodied in section five’s grant of enforcement power covering all four previous sections of the amendment.

The Fourteenth Amendment, in its final form, thus became more than a simple grant of broad congressional power, as in earlier drafts. But the amendment did not thereby become less than a fully sweeping empowerment of Congress.  To the extent sections one through four state determinate rules of law, they became constitutionally self-executing and therefore judicially enforceable commands.  But that did not diminish the scope of legislative power otherwise vested by section five.  Section five, as written, and as it operates within the structure of the amendment as a whole, is a sweeping grant of legislative power. 

3.  Third, it is, frankly, historically implausible to read the Fourteenth Amendment as primarily committing to the judiciary the power to fill in the broad outlines of general prohibitions of state denials of privileges, immunities, equal protection of law, and fair legal procedures.  The amendment was proposed by a Radical Republican Reconstruction Congress bent on dominating the post-Civil War legal order, concerned with protecting congressional primacy, and intent on dealing itself most of the relevant power.  The Fourteenth Amendment was all about enhancing congressional power, validating Congress’s Reconstruction enactments, and entrenching its actions against possible future backsliding to the greatest extent possible. 

Of course, such a legislative-power-maximizing purpose would not matter if the text as actually enacted failed to reflect and embody such a purpose. But it rather plainly does.  The amendment’s text is most naturally read as a set of general and specific principles, coupled with a broad grant of power to Congress to enforce such general and specific principles in an appropriate manner left largely to Congress’s choices.  Unless one comes to the text already corrupted by an ahistorical, modern, post-Cooper v. Aaron judicial supremacist mindset (as the Court in City of Boerne did), it is impossible to read the amendment in historical context as primarily a grant of judicial power. 

What’s more, the amendment was proposed and adopted in the still-recent shadow of the infamous Dred Scott decision, of 1858. In that shadow, it is unrealistic to think of the amendment as intending a broad delegation of gap-filling and creative-interpreting power to the Supreme Court.  Recent, stinging experience with misuse of judicial power very nearly forecloses any such understanding.

4.  Fourth, and finally, the primacy of congressional power appears to have been the original, near-contemporaneous early understanding of the amendment – including early judicial understanding.  In Ex parte Virginia (1879), the Court recognized a broad understanding of Congress’s enforcement power under section five as the core of what the Fourteenth Amendment is all about.  The opinion merits quotation at length:

The Thirteenth, Fourteenth, and Fifteenth amendments, the Court explained, “were intended to be, what they really are, limitations of the power of the States and enlargements of the power of Congress. [Emphasis added.]  They are to some extent declaratory of rights, and though in form prohibitions, they imply immunities, such as may be protected by congressional legislation.”

The Court noted that its opinion in Strauder v. West Virginia held that the rights secured by the amendment “may be enforced by Congress by means of appropriate legislation.” The Court then went on to describe the primary role in implementing the Fourteenth Amendment’s provisions given to Congress by section five (and the similar power conferred by the Enforcement Power sections of the Thirteenth and Fifteenth amendments):

All of the amendments derive much of their force from this latter provision. It is not said the judicial power of the general government shall extend to enforcing the prohibitions and to protecting the rights and immunities guaranteed. It is not said that branch of the government shall be authorized to declare void any action of a State in violation of the prohibitions. It is the power of Congress which has been enlarged. Congress is authorized to enforce the prohibitions by appropriate legislation. Some legislation is contemplated to make the amendments fully effective. Whatever legislation is appropriate, that is, adapted to carry out the objects the amendments have in view, whatever tends to enforce submission to the prohibitions they contain, and to secure to all persons the enjoyment of perfect equality of civil rights and the equal protection of the laws against State denial or invasion, if not prohibited, is brought within the domain of congressional power.

It is instructive that City of Boerne quoted the last sentence of the passage above but none of the preceding language specifically denying that the Fourteenth Amendment is about enlarging the judicial power. 

* * * * *

City of Boerne purports to be an opinion holding Congress to the limits of the Constitution: Congress has limited power and cannot legislate beyond its powers.  But in reality City of Boerne is a quintessential exercise of judicial supremacist arrogance: Congress has limited power because, and only because, the Court has unlimited power to decide, for every institution and for all purposes, what the Constitution should mean.  






Michael Stokes Paulsen — Mr. Paulsen is a professor of law and distinguished university chairman at the University of St. Thomas, in Minneapolis.


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