Recently, the Supreme Court decided an important federalism case, Tennessee v. Lane. I previously blogged on the Right Coast about the minimalist conception of federalism that appeared to animate Justice O’Connor’s vote in that case. Here I want to discuss Justice Scalia’s interesting dissent. Tennessee v. Lane involved the question whether Title II of the Americans with Disabilities Act is authorized by section 5 of the 14th Amendment. The majority, including Justice O’Connor, held that it was.
There are three basic ways to read section 5 of the 14th Amendment, which provides that “the Congress shall have power to enforce, by appropriate legislation, the provisions” of the Fourteenth Amendment. First, in the narrowest interpretation, Congress might simply have the power to enforce provisions of the Amendment, such as the Equal Protection Clause, by laws that go no further than the meaning the courts give to those provisions. For example, Congress could enforce the Equal Protection Clause by making it a crime for a state official to deny someone the equal protection of the laws.
Alternatively, Congress might have a broader power to enforce the Amendment through laws that go beyond the Amendment’s prohibitions. For example, although the Equal Protection Clause might prohibit only intentional race discrimination, Congress might have the power to forbid state laws that unintentionally have disparate effects on different races, because Congress believes it is too difficult to prove discriminatory intent in a court of law.
There are two versions of this latter approach. First, the Court might inquire in a serious way to determine whether Congress is actually enforcing the Amendment rather than just using its enforcement power to pass legislation it would not otherwise have the power to enact. In 1997, in the Boerne case, the Supreme Court adopted this approach, promulgating something called the “congruence and proportionality test.” Second, one might employ a more lenient standard, allowing Congress much wider discretion to go beyond the Amendment’s provisions. Advocates of this approach argue that it is the same standard that applies under the Necessary and Proper Clause.
In Justice Scalia’s dissent in Lane, which no other justice joined, he adopted the narrowest interpretation. The question is whether he is correct. Scalia’s textual argument is that enforcing a provision means passing laws to remedy the violation of that provision, not passing laws that go beyond that provision. One does not enforce a 55 mph speed limit with a 45 mph speed limit. While this textual argument makes sense, it is not sufficient, since the text is ambiguous. One might also read the Amendment’s language (“Congress shall have power to enforce, by appropriate legislation”) to convey the same power that Congress has under the Necessary and Proper Clause, because that power had been famously described as allowing Congress to use “all means which are appropriate.” The legislative history of the Amendment also included some statements to that effect.
Scalia attempted to buttress his interpretation by claiming that it resulted in a test that was clearer than the congruence and proportionality test, which could be manipulated by judges. While this argument is certainly true, it also raises an important conflict within Scalia’s jurisprudence. As a formalist, Scalia strongly prefers clear, determinate rules. But as an originalist Scalia should only interpret provisions to be clear if that is their original meaning. Scalia, however, failed to provide any clear evidence of that meaning in Lane. While I suppose one can legitimately assume a mild preference on the part of the Framers for clear rules, the Constitution simply does not exhibit a clear and strong preference for such rules generally.
Thus, Scalia appears open to the charge that he reads his preference for clear rules into the Constitution, much as he charges other justices with reading in their preference for abortion. Of course, Scalia might respond that a preference for clear rules is more justified than a preference for specific results, such as protecting abortion, because there is more chance of a general agreement in favor of clear rules than for specific results. But this ignores the main point: A principled originalism requires that one consistently apply the original meaning and Scalia’s approach here does not appear to do that.
This is not the first time that Scalia has pursued clear rules without considering evidence of the original meaning. In Employment Division v. Smith, Scalia wrote an opinion for the Court interpreting the Free Exercise Clause to have a clear meaning, but without supplying any originalist support for the interpretation. (In response to criticism, however, Scalia did attempt to supply some evidence.) Another example is Scalia’s position on the nondelegation doctrine, which he refuses to enforce on the grounds that there is no clear test for doing so, but without providing originalist evidence for his interpretation.
While I am critical of Scalia’s reasoning in Lane, it is possible that he may in the future be able to supply additional evidence to support his interpretation. Even if he cannot, I still don’t think that section 5 allows Congress the strong deference that advocates of the Necessary and Proper Clause interpretation advocate. But that is a post for another day.
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