FEDERALISM/COMMERCE CLAUSE TOPIC PROPOSAL
By
Ryan W. Galloway
Augustana College
Why the
Courts?
Both
the symbolic and historical power of the judiciary in the United States can
hardly be overstated. Beyond the
historical significance, however, the Supreme Court has received a great deal
of public attention for several strings of recent cases in numerous different
areas from affirmative action, to gay rights, to the juvenile death penalty, to
the war on terrorism. The focus of this
paper will be on the area of the balance of power between the federal
government and the states, however, the committee may decide to go in a
different direction to include any of the above areas explicitly.
A
fundamental question regarding the Supreme Court right now is the question of
“how conservative the court really is.”
While a great deal of media commentary centers around the idea of the
conservative Rehnquist Court, the recent decisions of Grutter v. Bollinger,
Lawrence v. Texas, and Roper v. Simmons might call into question
the so called “conservative” nature of the judiciary.
Why Federalism Decisions?
While
seemingly arcane, or perhaps dealing primarily with economic matters, the role
of the Commerce Clause, or the power of the Congress to “regulate interstate commerce,”
has been a centerpiece of jurisprudence for the Supreme Court over the past
decade. Brannon Denning and Glenn
Reynolds explain, “Until 1995, the standard law school summary of Congress's
commerce power was something along the lines of ‘Congress can do whatever it
wants.’” (Denning & Reynolds,
2003). Deborah Merritt referred to the
Commerce Clause as “an intellectual joke among academics and attorneys,”
because everyone knew that any case about whether the federal government had
the power to do something under the Commerce Clause would always be decided in
favor of the federal government (see Merritt, 1995).
However, this “joke” changed in
United States v. Lopez, as the Court began to actively restrict the power of
the federal government to enact numerous statutes on the grounds that the
Congress lacked the authority to undertake the action under the “power to
regulate interstate commerce.” Denning
and Reynolds argue:
[t]he joke appeared to be over with the Court's 1995 decision in United States v. Lopez. In Lopez the Court struck down a congressional statute prohibiting simple possession of a gun in a school zone. The Court concluded that the statute exceeded congressional power under the Commerce Clause…Finally, the Court found that the argument upon which the Government rested its authority to pass the law in question would require the Court to hold that there is no intrastate activity beyond the reach of Congress (Denning & Reynolds, 2003).
One fairly consistent trend since Lopez,
is the trend of devolution of power to the states that was once held by the
Congress under previous interpretations of “the Commerce Clause.” Finding “limitations on the Congress’s
commerce power that would not have been found in years past,” Lopez has
become symbolic of the Supreme Court’s effort to restrict seemingly unbridled
federal power and authority (Ares,
2003). Richard Fallon continues:
It seems agreed on all sides now that the Supreme Court has an agenda of promoting constitutional federalism. Since the appointment of Clarence Thomas…the Court has maintained a relatively stable five-justice majority…committed to enforcing limits on national power and to protecting the integrity of the states. Over that period, the Court has held at least ten federal statutes to be constitutionally invalid, either in whole or in part, on grounds involving federalism. By contrast, the Court had found only one federal statute to violate principles of constitutional federalism during the previous span of more than fifty years… Law reviews echo with discussion of whether the Court has yet achieved, or is likely to effect, a federalism "revolution." (Fallon, 2002).
Far from being uncontroversial in
legal circles, the new “federalism jurisprudence” of the Supreme Court has hardly
gone by unnoticed. As Ronald Rotunda
states:
A great deal of the academic and political criticism that has accompanied the recent federalism decisions of the Supreme Court express the fear that that these opinions undercut federal power in a very serious and substantial way, thus preventing the Federal Government from enacting needed legislation that would be beyond the capacity of the individual states to regulate (Rotunda, 2003).
Jack Balkin and Sanford
Levinson describe the trend of the court as follows:
In the past ten years, the Supreme
Court of the
Ruth Colker and James Brudney describe the sea change in the
Court’s federalism jurisprudence:
The Supreme Court under Chief
Justice Rehnquist's recent leadership has invalidated numerous federal laws,
arguably departing from settled precedent to do so. The Rehnquist Court has
held that Congress exceeded its constitutional authority in five instances
during the 2000-01 Term, on four occasions during the 1999-2000 Term and in a
total of twenty-nine cases since the 1994-95 Term. Commentators typically
explain these decisions in federalism terms, focusing on the Court's use of its
power to protect the States from an overreaching Congress (Colker & Brudney, 2001).
The Supreme Court’s trend of
devolution of federal power is exemplified by cases like Seminole Tribe of
Florida v. Florida and City of Boerne v. Flores. Christopher Banks contends that, “These two
landmark rulings greatly limited federal judicial power under the Eleventh
Amendment (Seminole) and federal legislative power (Boerne) under Section 5 of
the Fourteenth” (Banks, 2003).
Seminole
Tribe deals with whether or not the federal government has the power to
allow Indian Tribes to “sue a state and disrupt its sovereignty” (Banks, 2003). Banks claims, “Seminole told Congress it no
longer enjoyed power to circumvent state immunity by relying on the Commerce or
Supremacy Clause” (Banks, 2003). City
of Boerne v. Flores is the decision in which the Court struck down the
Religious Freedom Restoration Act (RFRA).
Owen Rarric argues:
On June 25, 1997, the Supreme Court threw the next punch in this heated battle among the judiciary, the states, the legislature and the President. In City of Boerne v. Flores, the Supreme Court struck down the RFRA as unconstitutional. In a six-to-three decision, the Court ruled that Congress, in enacting the RFRA, exceeded its Enforcement Power under Section Five of the Fourteenth Amendment. ‘The far-reaching significance of the Court's decision [in City of Boerne] is hard to exaggerate.’ The cause of religious freedom, generally, lost the right to rely on the sweeping protection of a federal statute (Rarric, 2002).
One
of the most controversial extensions of the Lopez precedent was the
striking down of the Violence Against Women Act (VAWA) in United States v.
Morrison. Banks contends, “In
Morrison, the Court held that Congress did not have commerce or Section 5
authority to supply victims of gender-motivated violence with civil remedies in
federal court through the Violence Against Women Act of 1994 (VAWA)” (Banks, 2003). Jesse Choper described the decision:
Five years later, United States v. Morrison confirmed that Lopez was no "sport," and that the Court really meant to significantly redefine the scope of national power. The Court held that the civil remedy provision in the Violence Against Women Act ("VAWA"), providing injunctive relief or a private right of action for damages to persons injured by gender-motivated violence, could not be sustained under either the Commerce Clause or Section 5 of the Fourteenth Amendment…VAWA was vigorously supported as a solution to a widespread national problem of violence against women, and was thus intended to protect more than half of the population of the country (2003).
Another controversial decision
dealing with the power of the federal government over interstate commerce is
the decision of Board of Trustees of the University of Alabama v. Garrett,
(531 U.S. 356, 365 (2001), where the Court held that a nurse who held a job at
a state hospital, “could not sue under the Americans With Disabilities Act
(ADA) for money damages in federal court because Congress did not have Section
5 power to abrogate state immunity”
(Banks, 2003). Banks further
states, “United States v. Morrison and Board of Trustees of the University of
Alabama v. Garrett, indicate that the Court-centered anti-federalist philosophy
is firmly entrenched in the five-Justice plurality that often controls the
outcome of federalism cases” (Banks, 2003).
Therefore,
there is ample precedent to support the notion that the Supreme Court is in
favor of devolving authority once held by Congress under the Commerce Clause of
the Constitution to the states, with United States v. Lopez serving as
controlling precedent in this area. Unlike
a topic that dealt with “individual rights” generally, a topic that dealt with
the question of the relative power of the federal government vis-à-vis the
states allows for a controlling theme for the topic, and hence some degree of
stable and predictable negative ground.
Additionally,
a topic centered around a “federalism theme” need not limit the Affirmative
team into just defending centralization versus states rights. The above cases illustrate the intersection
of this area of the law with: women’s
rights, the rights of the “disabled,” religious rights, Native American
sovereignty, etc. Depending on how the
topic committee structured the final resolution, there is the potential for a
wide variety of cases dealing with a breadth of subject matter.
Initial Ideas on Framing the Resolution
At
the same time, defining the exact parameters of the topic might be a difficult
chore. This may be an instance where a
“list” topic would be preferable to a free-for-all in which teams would be
encouraged to find a case mentioning “Commerce Clause” or “federalism” in it,
and striking the case down. It may be
possible to list cases under a rubric of “Resolved: That the United States Supreme Court should
overrule one or more of the following decisions: x, y, z.”
Another
angle the topic committee could take is to focus on federal statutes that were
struck down by the Court on federalism grounds.
Thus a resolution could be structured that said, “Resolved: The United States Supreme Court should
overrule one or more of its decisions which
declared a federal statute to be constitutionally invalid on federalism grounds.” Alternatively, a date parameter could be
added to allow for “…invalid on
federalism grounds since 1995.” Another
alternative might be to focus on the Commerce Clause aspect with a resolution
along the lines of “Resolved: The United
States Supreme Court should overrule one or more of its decisions which declared a federal statute to be
constitutionally invalid on the grounds that the Congress lacked the necessary
Constitutional power under the Commerce
Clause.”
Why a legal topic?
Given
the amount of controversy over proposals for topic rotation, it seems some time
should be spent justifying a legal topic.
While I personally have found topics like the privacy topic, the
criminal procedure topic, and Title Seven to be interesting topics, there seems
to be a strong sentiment in the community that legal topics are too boring;
have too weak of an impact; and will quickly devolve into mundane, repetitive, and
arcane debates. However, legal topics
offer a great deal of in-depth clash and argumentation, even if we don’t always
debate world ending impacts (which we would probably do anyway).
First,
many of our students go on to careers in the law--not everyone goes on to participate
in public policy. In fact, one of the
key factors that aids in my recruiting novices on campus is the ability to
participate in an activity that can help prepare them for law school. My debaters last year were very excited about
the prospects of a legal topic, and a little disappointed to see a topic
focused more on terminal impacts than nuanced legal questions that would be
confronted in a career in law.
Second,
fears of the “collapse of debate” on a legal topic are greatly exaggerated. Many veterans of the original privacy topic
defend the topic as one of the best resolutions they ever debated. Legal questions almost guarantee a deep
literature base, as the cases had to be argued up to the Supreme Court. This guarantees decisions on both sides,
amicus briefs on both sides, law reviews on both sides, etc. While the implication of these arguments
might not always be “global nuclear omnicide,” the notion that there is “no
negative ground,” or “only bad disads,” is balanced by the depth of literature
on these questions.
Third,
legal topics allow students to more closely access literature relevant to their
everyday lives. When debating cases
dealing with women’s rights, the rights of the disabled, Native American
rights, etc., these questions speak to issues that debaters deal with in their
everyday lives. Instead of requiring
debaters to metaphorically defend an interpretation of the topic that allows
them to access identity questions, these questions could be built into the topic
from the outset.
Most
of the other concerns about legal topics fall into the category of “people
wouldn’t debate the topic the way we envision.”
In other words, the desire for large terminal impacts would cause
students to skip over many of the internal links on the Affirmatives to head
straight for the modelling style impacts.
However, this is at best a partial plan-meet need to a legal topic. Students would still have to read a great
deal of legal literature in order to get the initial links to their positions,
which at least requires them to access law reviews, amicus curiae briefs, as
well as primary Supreme Court documents.
By researching these areas of literature, students will benefit whether
they choose to enter the legal field, and students who choose not to enter the
legal profession will have the ability to make a better decision about their
choice.
It
is time for us to debate a legal topic.
In this community, “courts” tends to be run only as a counterplan, with
only cursory discussion of how the counterplan would affect existing legal
precedent in evolving areas of the law.
The community’s reluctance to embrace legal topics for “fear of the
unknown,” is, in many ways, a warrant for the topic. It has been so long since we have had an in-depth
legal topic that students and coaches no longer even know how to approach these
kinds of topics. This is a powerful
illustration that we have locked our students too far into a paradigm of
research and thinking that ignores the very field that so many of our students
end up going into in post-graduate studies.
I highly encourage the topic committee and the voters to take the idea
of a legal topic seriously, because of the educational benefits provided to students
in debating complex legal matters.
Questions about Structuring The Topic
The
number one question about a legal topic is likely to be the question of the
agent. One of the biggest criticisms of
the Title Seven topic was that writing the “courts counterplan” into the topic
eviscerated discussion about the ways in which laws should be structured, as
the question became solely about the agent of action. The committee has several choices in this
regard.
First,
the committee could choose to specify the agent of action as the Supreme
Court. While this allows for the
Congress/Court debates to take place, careful selection of which cases to
include under the topic may allow the Affirmative to claim powerful
precedential and/or modelling advantages to serve as offense against the
Counterplan. Second, the committee could
not specify an agent, and allow debaters to ferret out those questions in the
debate. The concern here is that by not
specifying the action taken, we would
deny the Negative core ground. In
addition, by specifying the action of “overturn” or “overrule,” the committee
may be writing the agent in through the back door. Finally, the committee could specify the
agent, realize that this is a powerful negative strategy, and not worry about
the concern that the Affirmative may have difficulty against such a strategy,
under the logic that this would help equalize any existing Affirmative side
bias with regard to the “area selection” under the topic.
The second question is what the
central action in the topic should be. A
way to provide coherent Negative ground for every debate is to make the
required action be controversial enough to generate negative counterplan,
disadvantage, and kritik ground.
Perhaps the easiest answer to this
question is to look to the past and to re-write the phrase “overrule” into the
topic. This provides the negative with
disadvantage ground centered on Supreme Court legitimacy, provides the Negative
counterplan ground in terms of taking actions different than overruling the
decision (set aside counterplans, counterplans that distinguish the precedent,
counterplans that enact a legislative solution but do not getting rid of the
precedent, etc). It might also be
possible for the committee to tinker with other ideas like “overturning” a
decision which might allow for laws that contradict the precedent as well as
constitutional amendments.
One caution comes from the “Harvard
Affirmative” at the NDT. If the topic is
written to say that the precedent “should be overruled,” there may be ground
for defending a case on the grounds that it overruled another. For example, it might be possible to defend Lawrence
v. Texas on its face, arguing that it overruled Bowers v. Hardwick. Therefore, the “status quo” case might be
allowed in the door if the committee is not careful in wording the topic.
Another
question is what to do if we specify a list topic. My research has already indicated that there
is more than one United States v. Morrison, for example. While it may be a bit of an “inelegant”
solution, part of the answer might come in specifying the exact code for the
case. This would prevent teams from
digging up another case named the same thing and overruling that case
instead.
It
might also be possible in non-list oriented options to specify a time
parameter. For example, “overruling a
United States Supreme Court decision since
1995 which restricted the Congressional Commerce Clause power.” This might be a tad inelegant, but it might
also set a parameter on the topic. Plus,
the awesome Gregorian Calendar bad argument is guaranteed negative ground. J
The
committee should also beware of side bias in the cases themselves. A problem on past legal topics is that no one
has any desire to debate the cases on their merits because teams will pick a
case that is “clearly wrong.” The most
stark example are claims that teams who ran Bowers v. Hardwick in
elimination rounds at national circuit tournaments were winning upwards of ninety percent of their Affirmative
debates. Whether or not this is merely
urban legend, the question can still be raised as to whether or not we want to
give the Affirmative a vast strategic advantage by picking cases to overrule
that are clearly bad cases. Much of this
concern may be moot, as Negative innovations have largely eliminated previously
Affirmative side biases, but it is still a concern worth mentioning.
The
flip side of the coin is to make sure the cases still carry relevance as
“markers” for important disputes in society.
Choosing cases solely for their role in ensuring that the “sides are
fair” may undermine the important pedagogical benefits unearthed in researching
and debating a topic at the core of the legal literature. It may be worth it to make the topic slightly
tilted towards the Affirmative in order to have engaging, in-depth debates.
Another question is the idea of
providing a coherent set of cases to deal with.
I will be upfront about my bias:
I like a coherent set of cases that have a fundamental controversy at
their crux. Our ability to research on a
small squad with every debater starting as a novice has been drastically easier on the fossil fuels
topic than the Europe topic because of one simple word: “require.”
By providing us the ability to research a central axis point as the core
of our negative strategies, we have found ourselves able to better plan
research assignments than on the sprawling Europe topic. Thus, two ideas should be concerned: 1) the topic should have a central axis
point: be it the equivalent of the word “require,”
replacing it with “overrule” or “overturn,” 2) the topic should have a central
theme: such as the balance of
federal-state power, or cases that all go in “one direction” on the question of
individual rights. Teams will always try
to evade this ground with unusual Topicality defenses and/or critical
approaches, but in current lingo, “that’s just defense,” and we should at least
try to give Negative teams who choose to engage the topic the ability to tie
Affirmatives back into the literature.
Negative Ground on The Topic
The most obvious Negative ground on
the topic is to debate the question of federalism; and the argument that a
centralized federalism model is worse than the current decentralized model the
United States provides. Not only does
this allow students to access a great deal of domestic literature on the
question, it also provides the opportunity to students who wish to engage in
international relations debates can do so.
The topic committee can also provide
negative ground by specifying a central axis point around which the resolution
revolves. By specifying “overrule” as
the action taken, it gives the Negative various counterplan options with
“overrule bad” disadvantages like Supreme Court Legitimacy as the net benefit. In discussions on e-debate on this question in
April of 2004, the question was raised that the Lawrence v. Texas
decision eviscerated uniqueness ground on this question. However, research on this question quickly
found evidence that post-dated Lawrence indicating that the Supreme Court still
had legitimacy, but was in danger of losing said legitimacy if it continued to
overrule other precedents (see
Berkowitz, 2003; Bikuspic, 2003). We
should be wary of making assessments based on fears and lack of evidence, and
should instead look to the literature on these questions before assuming that
long-standing legal arguments that have stood the test of time are no longer
relevant.
Other disadvantages include the
possibility of Hollow Hope arguments, “Evil Court” or legitimacy bad arguments,
CLS run as a disadvantage or kritik, various modelling disads premised either
off of federalism or individual rights, and politics disadvantages. Counterplan ground would include: set aside counterplans, state
constitutionalism counterplans, lower court counterplans, legislative
counterplans, executive order counterplans, Morgan Doctrine counterplans,
constitutional amendment counterplans, etc.
Finally, kritik ground would include variants of critical legal studies,
feminist jurisprudence, global/local activism arguments, as well as various
criticisms of individual rights such as anthropecentrism and capitalism style
arguments.
Conclusion
Whether the committee chooses this
particular federalism style topic or chooses to go in another legal direction,
it is clear that the time has come for the community to seriously consider a
legal topic. We are at risk of letting
competitive decision making on a year-by-year, ad hoc basis, overwhelm the
long-term pedagogical benefits of providing our students with the ability to
research, understand, and debate core legal issues that are rapidly changing
society. The Supreme Court has recently
surprised Americans with its seemingly liberal decisions in the past two
years—now is a ripe time to debate the central question of the Supreme Court in
American society.
Respectfully submitted,
Dr. Ryan W. Galloway
Director of Debate
Augustana College
Works Cited
Ares, C.
(2003). Albany Law Review,
“Dedication: Stanley G. Feldman:
Federalism and the state courts.” 66
Alb. L. Rev. 589.
Balkin, J.M. & Levinson, S. (2001). “Understanding the constitutional
revolution.” Virginia Law Review; 87 Va.
L. Rev. 1045.
Banks, C.P. (2003).
Akron Law Review, “The constitutional politics of interpreting
section 5 of the Fourteenth Amendment.”
Akron L. Rev. 425.
Berkowitz, P. (2003).
Commentary, “Has the Supreme Court gone too far?; A
symposium.” October 2003.
Biskupic, J. (2003).
USA TODAY, “2 justices’ influence felt in latest term.” June 27, 2003.
Choper, J.H. (2003).
“Taming Congress's power under the commerce clause: What does the near future
portend?”
Colker, R. & Brudney, J.J. (2001). “Dissing Congress”.
Denning, B.P. & Reynolds, G.H. (2003). “Rulings and resistance: The new commerce clause jurisprudence
encounters the lower courts.”
Fallon, R.H. (2002).
“The ‘conservative’ paths of the Rehnquist Court’s federalism
decisions.”
Merritt, D.J. (1995).
“Reflections on United States v. Lopez:
Commerce!” Michigan Law Review,
94 Mich. L. Rev. 674.
Rarric, O. (2002).
Akron Law Review,
“COMMENT: KIRSCH V. WISCONSIN DEPARTMENT OF CORRECTIONS: WILL THE
SUPREME COURT SAY "HANDS OFF" AGAIN?”
35
Rotunda, R.D. (2003).
“The implications of the new commerce clause jurisprudence: An evolutionary
or revolutionary Court?”
APPENDIX: LIST OF CASES WHERE THE SUPREME COURT STRUCK
DOWN A FEDERAL STATUTE IN THE LAST TEN YEARS ON “FEDERALISM GROUNDS”
The following footnotes in
the Colker & Brudney article provide support for a potential list of cases
either as potential affirmatives under a non-list topic, or cases that the
committee could choose from if the “Commerce Clause” topic was chosen…
n3. See Bd. of Trustees of the
Univ. of Ala. v. Garrett, 121 S. Ct. 955 (2001) (Title I of the Americans with
Disabilities Act, as applied to the States; 5-4 vote); Legal Servs. Corp. v.
Velazquez, 531 U.S. 533 (2001) (1996 funding restriction in Legal Services
Corporation Act; 5-4 vote); Bartnicki v. Vopper, 121 S. Ct. 1753 (2001)
(application of federal wiretapping statute to third parties' publication of
intercepted conversations; 6-3 vote); United States v. Hatter, 121 S. Ct. 1782
(2001) (Social Security tax as applied to Article III judges; 5-4 vote); United
States v. United Foods, Inc., 121 S. Ct. 2334 (2001) (assessment imposed on
private industry by Mushroom Promotion, Research, and Consumer Information Act;
6-3 vote).
n4. See Dickerson v. United
States, 530 U.S. 428 (2000) (congressional attempt to override "Miranda
warnings"; 7-2 vote); United States v. Playboy Entm't Group, Inc., 529
U.S. 803 (2000) (regulation of sexually explicit channels on cable; 5-4 vote);
United States v. Morrison, 529 U.S. 598 (2000) (the private right of action
under the Violence Against Women Act; 5-4 vote); Kimel v. Florida Bd. of
Regents, 528 U.S. 62 (2000) (Age Discrimination in Employment Act, as applied
to the States; 5-4 vote). In this Article, we focus in particular on the
decisions in Kimel, Morrison, and Garrett as reflecting a trend in the Court's
developing methodology for considering the constitutionality of Congress's
actions.
n5. The remaining twenty cases in
which the Court invalidated federal legislation since 1994 include the
following ten cases which we will discuss in this Article: Alden v.