Federalism's 'Old Deal': What is Right and Wrong with Conservative Judicial Activism

Abstract

In an article based on his Fall, 1999 Reuschlein Distinguished Lecture at Villanova Law School, Professor Shane argues that the Supreme Court is leading a misguided project of conservative judicial activism aimed at curtailing Congress's commercial regulatory powers, in the interest of preserving state autonomy. This activist initiative has recently been defended by Fourth Circuit Chief Judge J. Harvie Wilkinson, in Brzonkala v. Virginia Polytechnic Institute, which overturned the civil damages remedy enacted as part of the Violence Against Women Act. Professor Shane argues, however, that the federal courts have not shown any compelling institutional need with regard to federalism that justifies inventing new limitations on congressional authority. No less than Congress have the States amassed political and economic power unimagined by the Framers. Nor did the Supreme Court in Lopez v. United States formulate a workable and coherent legal doctrine for limiting Congress's Commerce Clause authority that relates in any sensible way to the values of federalism.

Judge Wilkinson's defense contends that Lopez-style activism is necessary to avoid judicial abdication of the courts' interpretive authority regarding the Constitution, and that it is better than Lochner-style activism because it does not disable state legislative authorities from dealing with social problems. Shane argues that Wilkinson misconstrues the nature of the courts' interpretive authority and ignores the importance of empowering the national legislative authority to deal with national problems. Wilkinson argues also that Lopez-style activism is better than Lochner-style activism because it does not advance the agenda of a particular constituency, such as big business. Shane responds that the current cases do advance the agenda of an ideological, rather than economic constituency, and that the majority Fourth Circuit opinion in Brzonkala is a "culture wars barrage" that violates appropriate norms of judicial temperament.

Shane concludes that Congress is better viewed as a partner, rather than as a threat, if states and localities are to preserve effective autonomy during the era of globalization.

JEL Classification: H11, H70, K39