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Narrowing the Nation’s Power by John T. Noonan Jr. (University of California Press, 208 pages, $24.95) It is uncommon for an active federal judge to pluck a quill and, with the temerity of an enfant terrible, assail cascades of constitutional decisions by those superior deities known collectively as the U.S. Supreme Court. The intellectual onslaught creates an appearance of bias against faithful implementation in future cases . It is even more arresting when the judge displays literary dazzle in critiquing areas of law notorious for tedium and unapproachability: namely, the powers of Congress under the commerce clause and Section 5 of the 14th Amendment; and, the immunity of states from private damage suits. And the oddities mount when the judge is summoned by the chairman of the Senate Judiciary Subcommittee on Administrative Oversight and the Courts, Charles Schumer (D-N.Y.), to testify about the Supreme Court’s asserted wrong turns. Schumer gleefully embraced the testimony to fortify his contrived excuses for opposing the judicial nominations of Mike McConnell, Miguel Estrada, and John Roberts. This judge of uncommon learning and owlishness is none other than John T. Noonan Jr. of the U.S. Court of Appeals for the 9th Circuit, an appointee of then-President Ronald Reagan who is generally admired by political conservatives. His snappy book, Narrowing the Nation’s Power, has been keenly relished by the usual liberal suspects as proof that the Rehnquist Court is saluting the ancien r�gime in lieu of the enlightened utopianism of Robespierre and Danton. But Judge Noonan’s case against the Court is at best anemic and at worst a troublesome attack on Marbury v. Madison, which has crowned the judiciary for two centuries with the final say on what the Constitution means. Even the title wars with the basic understanding that Congress, unlike the states, was entrusted with limited powers. It would not grow from a modest acorn into a mighty oak. As James Madison elaborated in The Federalist No. 45:
The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and infinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

The prevailing assumption today, however, outside a razor-thin Supreme Court majority, is that Congress can do anything not expressly prohibited. It turns on its head the Madisonian understanding that Congress could do nothing unless authorized by the Constitution, including its generous “necessary and proper” clause. But the title is a quibble compared with Noonan’s misconceived attacks on the Supreme Court’s demarcation line between congressional and state powers. His flagship aspersion is cast upon City of Boerne v. Flores, 521 U.S. 507 (1997), a case implicating the First Amendment’s protection of religious freedom and congressional power to enforce, but not enlarge, the 14th Amendment. “The Battle of Boerne,” to borrow from Noonan’s drama-filled prose, featured little drama, not the stuff of wrenching religious persecutions that had stained the nation’s past. A Roman Catholic parish in Texas sought a permit to expand a historic church structure to accommodate its burgeoning flock at Sunday masses. The Boerne City Council balked because the structure fell within an historic district. The archbishop of San Antonio countered with a lawsuit under the Religious Freedom Restoration Act (RFRA), bathos compared with the titanic struggle between Henry II and Thomas � Becket. RFRA’s origins speak volumes about its constitutional fragility. In Employment Division, Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), the Supreme Court addressed the application of a state law categorically forbidding ingesting peyote to members of the Native American Church who claimed a constitutional exemption for sacramental use. In denying that free exercise clause argument, Justice Antonin Scalia explained that neutral, generally applicable, and evenhandedly applied secular laws may constrain religious practices without proving a compelling government interest. The previous free-exercise-clause standard, announced in Sherbert v. Verner, 374 U.S. 398 (1963), required that the latter be demonstrated if the law “substantially burdened” religion. (Scalia added that laws infected with a religiously discriminatory purpose would violate the clause, a protection with teeth, as exemplified in Church of Lukumi Babalu Aye Inc. v. Hialeah, 508 U.S. 520 (1993). The 14th Amendment’s ban on racial discrimination likewise requires proof of an invidious intent, as held in Washington v. Davis, 426 U.S. 229 (1976).) Scalia fretted that under the Sherbert standard, judges were at sea in deciding how pivotal a religious practice was to a creed in determining the substantial burden issue, for example, blocking abortion clinic entrances to forestall abortions or refusing to pay taxes to support war. Equally beyond the judicial ken was dividing government objectives between the compelling and noncompelling. Indeed, in the Smith case itself, Justice Sandra Day O’Connor decreed that Oregon’s anti-drug law was compelling, while Justices Harry Blackmun, William Brennan Jr., and Thurgood Marshall insisted otherwise. In sum, the Smith standard of neutrality, general applicability, and evenhandedness avoids a Jackson Pollock-like, abstract expressionist interpretation of the free exercise clause. Members of Congress chorused outrage at the Smith ruling. Whether any had perused and digested the opinion might reasonably be questioned. But it cannot be doubted that constituents across the political and religious spectrum clamored for legislation. And when it comes to a member’s choosing between constituent demands and the Constitution, the choice is never suspenseful. The House passed RFRA unanimously, the Senate approved it 97-3, and the saintly but sin-riddled President William Jefferson Clinton signed the congressional commandment on Nov. 16, 1993. It fastened on the states the nonconstitutional standard of Sherbert in lieu of Smith‘s less-adventuresome constitutional construction of the free exercise clause. Thus, RFRA prohibited government from “substantially burdening” religion unless the prohibition was the “least restrictive means” of promoting a “compelling interest.” Congress clutched at Section 5 of the 14th Amendment to justify its demand that states jump higher than the Constitution requires. The section states: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article [including the free exercise clause].” Enforce is no synonym of enlarge. On the other hand, the term is routinely understood to include remedial measures to overcome past violations that would not be justified without previous illegalities. Congress, for example, was empowered to ban literacy tests as a voting qualification under the 15th Amendment because of past and rampant racially discriminatory abuses. But as regards RFRA, Congress assembled no evidence that states were violating the free exercise standard of Smith, and thus there was no constitutional misbehavior to justify hurling Congress into the breach under Section 5. Indeed, Congress failed to identify a single instance of religious persecution in the last 40 years. Moreover, in the aftermath of Smith, Oregon exempted the religious use of peyote from its anti-drug laws. Congress similarly authorized the wearing of religious garb by members of the military in the wake of the Supreme Court’s upholding of a regulation banning the same in Goldman v. Weinberger, 475 U.S. 503 (1986). Congress also exempted the Old Order Amish from Social Security taxes and stopped a logging road through Indian burial grounds after adverse free exercise rulings in United States v. Lee, 455 U.S. 71 (1982), and Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988). And to further demonstrate that fevered imaginations occupied the commanding heights in the RFRA debate, the customarily measured president of the American Civil Liberties Union daftly maligned the Smith decision as “the Dred Scott of First Amendment law,” as though religious adherents had been declared noncitizens stripped of any rights the majority was bound to respect. In sum, Congress was insisting in RFRA that it was crowned under Section 5 to substitute its interpretation of the Constitution for that of the Supreme Court, and to bind the states accordingly. But that would stiletto Marbury v. Madison, and make Congress the ultimate arbiter of its own power. Thus, Congress might ban capital punishment in states by declaring it offensive to the Eighth Amendment. It might prohibit states from punishing religiously inspired, nonviolent obstructions of abortion clinics on the theory that the free exercise clause demands broad accommodation for religious conscience. All state laws with disproportionate impacts on minorities might be prohibited by a congressional declaration that adverse effects are the touchstone of an equal protection violation. Congress might further ban state durational residency rules for obtaining divorces as an unconstitutional burden on the right of interstate travel, although the Supreme Court held to the contrary in Sosna v. Iowa, 419 U.S. 393 (1975). The powers of Congress would be whatever it wanted them to be. The idea of a limited federal government would be expelled from the Constitution. And it speaks volumes on that score that Noonan offers no standard for arresting the congressional colossus he champions under Section 5. The judge acerbically scolds the Boerne decision for its general pronouncement that to pass muster, Section 5 legislation must be both “proportional” and “congruent” in relation to the constitutional injury to be prevented or remedied. He hotly protests: “This formula was unprecedented. Proportionality in legislation! Who would measure the proportion? Implicitly, the answer was ‘the court.’ What measure would the court use? Implicitly, the answer was ‘whatever we find handy.’” It is difficult to take Noonan’s jeering seriously. The staple of the Supreme Court’s jurisprudence is the interpretation of open-ended language no more precise than “proportional” or “congruent.” For instance, the Fourth Amendment prohibits “unreasonable” searches and seizures. That standard is more elusive than handcuffing an eel, and has begotten a staggering five-volume Search and Seizure treatise by Wayne R. LaFave. The Supreme Court’s prevailing definition of obscenity is but a modest improvement on Justice Potter Stewart’s “I know it when I see it.” Furthermore, the proportionality and congruence lodestars of Boerne are no more susceptible to judicial whimsy than the RFRA and Sherbert phrases “substantial burden,” “compelling government interest,” and “least restrictive alternative,” all of which Judge Noonan finds untroublesome! If Boerne is the catastrophe that Noonan imagines, then why did liberal Justices John Paul Stevens and Ruth Bader Ginsburg, the sole full dissenters in Bush v. Gore (2000), join the majority opinion of Justice Anthony Kennedy? If covert religious persecution was afoot, then why did the city, after its Supreme Court victory, approve a remodeling plan keeping 80 percent of the 1923 church and adding seven hundred seats? It is shocking that so little provoked Judge Noonan to cannonade at Marbury v. Madison and rashly denounce the Court for insisting that its interpretation of the Constitution trumped that of Congress or the president in justiciable cases and controversies. He chastised the high court for telling Congress exactly what Chief Justice John Marshall told Congress in Marbury v. Madison to justify his invalidation of a provision of the Judiciary Act of 1789. It is unnerving that a respected federal judge has called that sacred precedent into question, and even more unnerving that a Senate Judiciary subcommittee chairman has enthusiastically joined the ranks. What next? A sequel to President Franklin Roosevelt’s Court-packing machinations? Bruce Fein, founding partner of D.C.’s Fein & Fein, was general counsel to the Federal Communications Commission from 1983 to 1984 and associate deputy attorney general from 1981 to 1982.

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