[Senate Hearing 107-970]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 107-970
 
 NARROWING THE NATION'S POWER: THE SUPREME COURT SIDES WITH THE STATES
=======================================================================

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED SEVENTH CONGRESS

                             SECOND SESSION

                               __________

                            OCTOBER 1, 2002

                               __________

                          Serial No. J-107-106

                               __________

         Printed for the use of the Committee on the Judiciary









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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts     ORRIN G. HATCH, Utah
JOSEPH R. BIDEN, Jr., Delaware       STROM THURMOND, South Carolina
HERBERT KOHL, Wisconsin              CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California         ARLEN SPECTER, Pennsylvania
RUSSELL D. FEINGOLD, Wisconsin       JON KYL, Arizona
CHARLES E. SCHUMER, New York         MIKE DeWINE, Ohio
RICHARD J. DURBIN, Illinois          JEFF SESSIONS, Alabama
MARIA CANTWELL, Washington           SAM BROWNBACK, Kansas
JOHN EDWARDS, North Carolina         MITCH McCONNELL, Kentucky
       Bruce A. Cohen, Majority Chief Counsel and Staff Director
                  Sharon Prost, Minority Chief Counsel
                Makan Delrahim, Minority Staff Director














                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......     6
    prepared statement...........................................    63
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................    97
Schumer, Hon. Charles E., a U.S. Senator from the State of New 
  York...........................................................     1
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....     7
    prepared statement and attachments...........................   122

                               WITNESSES

Hamilton, Marci A., Paul R. Verkuil Chair in Public Law, Benjamin 
  N. Cardozo School of Law, Yeshiva University, New York, New 
  York...........................................................    11
Noonan, John T., Jr., Judge, U.S. Court of Appeals for the Ninth 
  Circuit, San Francisco, California.............................     8

                       SUBMISSIONS FOR THE RECORD

Barnett, Randy E., Austin B. Fletcher Professor of Law, Boston 
  University, Boston Massachusetts, statement....................    27
Epstein, Richard A., Professor of Law, University of Chicago, 
  Chicago, Illinois, statement and article.......................    40
Hamilton, Marci A., Paul R. Verkuil Chair in Public Law, Benjamin 
  N. Cardozo School of Law, Yeshiva University, New York, New 
  York, statement................................................    56
Greve, Michael S., John G. Searle Scholar, Director, AEI 
  Federalism Project, American Enterprise Institute, Washington, 
  D.C., statement and attachment.................................    66
Noonan, John T., Jr., Judge, U.S. Court of Appeals for the Ninth 
  Circuit, San Francisco, California, statement and attachments..   100
Presser, Stephen B., Raoul Berger Professor of Legal History, 
  Northwestern University School of Law, Chicago, Illinois, 
  statement......................................................   112












 NARROWING THE NATION'S POWER: THE SUPREME COURT SIDES WITH THE STATES

                              ----------                              


                        TUESDAY, OCTOBER 1, 2002

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Committee met, Pursuant to notice, at 11:06 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Charles E. 
Schumer presiding.
    Present: Senators Schumer, Hatch, and Sessions.

 OPENING STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR 
                   FROM THE STATE OF NEW YORK

    Senator Schumer. The hearing will come to order. I will 
make a brief opening statement, Senator Hatch will, and then we 
will get right to our witnesses. So I want to welcome both of 
them and thank them for coming, and apologize to everybody for 
the time change at the last minute--unforeseen scheduling 
difficulties due to everything that is going on here.
    Well, several weeks ago I returned from summer vacation 
with my family and I sat down to catch up on all the newspaper 
articles I missed. Among the clips that caught my interest was 
Linda Greenhouse's review of a book that had just come out. She 
wrote in the New York Times Book Review about a short, but 
important new work by a sitting Federal judge that was critical 
of the Supreme Court's federalism jurisprudence. After reading 
her review, I knew that we had to hear from Judge Noonan.
    His book, Narrowing the Nation's Power: The Supreme Court 
Sides with the States, has already made real waves in the legal 
community. You have an active Federal judge so mindful of his 
obligation as a lawyer to teach, to educate, and to work to 
reform the law that he published a thoughtful and nuanced 
treatise on a subject that we should all be paying attention 
to.
    Since I came to the Judiciary Committee, I have been 
especially concerned about what is happening on our courts. 
Most troubling of all perhaps has been the striking trend of 
diminishing judicial deference to Congress' power to find facts 
and then legislate pursuant to those findings. This so-called, 
quote, ``new federalism,'' unquote, jurisprudence--a term I 
know Judge Noonan prefers not to use--is frequently dense and 
inaccessible in terms of the way it is written and its 
material.
    I am particularly impressed with how clear Judge Noonan 
rendered such an opaque subject. Once it is made transparent, 
it is easy to see the devastating impact this string of cases 
has had on our power to protect people's rights through the 
courts.
    There have been times in our history when the courts have 
been the bulwark against efforts to undermine constitutionally 
protected rights, and that is one of the reasons I respect and 
revere our judicial system. But I must say I am profoundly 
troubled by the extent to which the judiciary has abrogated 
Congress' powers in the past years.
    Starting with Lopez, the Guns in School Zones Act case, 
running through Morrison, the Violence Against Women Act case, 
and including recently Garrett, the disability discrimination 
case, the courts, and most significantly and prominently the 
Supreme Court, have been steadily eroding Congress' power to 
legislate, with the effects felt and often suffered across the 
Nation.
    While some of the federalism decisions from recent years 
have fairly noted Congress' failure to establish a nexus 
between a piece of legislation and a source of congressional 
power, several of the cases ignore serious study and diligent 
efforts by Congress to make the necessary findings and 
establish a proper constitutional exercise of power.
    We hold hearings, and for some laws we hold years' worth of 
hearings. We take testimony from citizens, academics, State 
lawmakers, State attorneys general, and an array of other 
interested parties. In passing many laws that the courts have 
then struck down on federalism grounds, we have specifically 
solicited input and received a green light from the States on 
the question of whether there is a need for the national 
legislature to act.
    Generally our actions are not attempts to violate or weaken 
the States' authority. They are products of what we were 
elected to do. Let me give you an example that has had a lot of 
personal meaning to me.
    I was responsible for VAWA, the Violence Against Women Act, 
when I was in the House. Senator Biden, our colleague here on 
the Judiciary Committee, was the true leader on this and did 
great work in the Senate. I remember hearing after hearing 
after hearing that was held. I remember the research, the 
meetings, the phone calls, the discussions. I remember speaking 
with the victims, with State attorneys general, with local 
prosecutors.
    Violence against women was and is a national problem and we 
need national intervention to work toward a national solution. 
We found that in many corners of this country, violence against 
women was swept under the rug. It was an issue that localities 
simply did not want to deal with.
    I was personally offended when the Court struck down part 
of VAWA in the Morrison case. There are five Justices on this 
Court who all too often act as if there were no first branch of 
Government. They deem our findings in so many of these laws to 
be nothing more than mere anecdotes. But these anecdotes are 
the personal stories of real people, stories which, in the 
aggregate, define the national problems we need to solve.
    In the case of VAWA, those personal stories were backed up 
by statistical evidence and a cry for congressional 
intervention from every corner. We had the power to act, we had 
the obligation to act, and it was wrong for the Court to step 
in and stop us. It is a simple proposition, but we seem to have 
lost sight of that recently.
    The fundamental role of Congress is to make laws. The 
executive branch implements them, and judges are nominated and 
confirmed to interpret and apply those laws. That is the 
brilliant balance that the Framers struck, and since Marbury v. 
Madison that has balance has worked almost exquisitely. But 
now, like at no time in our past, we are seeing a finger on the 
scale that is subtly but surely altering this balance of power 
between Congress and the courts.
    As Justice Breyer wrote in his eloquent dissent in 
Morrison, the VAWA, quote, ``Since judges cannot change the 
world, it means that within the bounds of the rational 
Congress, not the courts, must remain primarily responsible for 
striking the appropriate State/Federal balance.'' I couldn't 
agree more.
    For better or worse, we are charged with making policy. The 
judiciary's role, while just as important, is quite different. 
It appears to me, with increasing frequency, the courts have 
tried to become policymaking bodies, supplanting court-made 
judgments for ours. That is not good for our Government and it 
is not good for our country.
    Of course, one of the great ironies that looms over this 
debate is that it was the conservative movement that first took 
issue with what they perceived as the Warren Court's judicial 
activism and willingness to make social policy judgments from 
the bench.
    For decades conservatives, often very convincingly, in my 
opinion, argued that elected officials, as opposed to unelected 
judges, should get the benefit of the doubt with respect to 
policy judgments, and that courts should not reach out to 
impose their will over that of elected legislatures.
    Even many non-conservatives, myself included, have 
significant sympathy with that position. It is easy for judges 
to express their personal views and their opinions. While that 
might be appealing for some to do, it is not what the Founding 
Fathers intended.
    Ironically, now we have the mirror image of this activism 
being practiced by the very conservative judges who initially 
criticized it. Ten years ago, Judge Robert Bork, a brilliant 
man, characterized the Warren Court as, quote, ``a legislator 
of policy,'' unquote, which reasoned backward from its desired 
results when ruling to expand equal protection, the right to 
vote, criminal defendants' rights, and the right to privacy.
    Today, similar criticisms of the Court, acting as a social 
policymaker actively rejecting the will of Congress, exists, 
and with good reason. Judge Noonan doesn't want to call it 
activism. I am interested to hear why not. It seems to me that 
when the Supreme Court reaches out to strike down law after 
law, and does so based on trumped-up constitutional theories, 
that is judicial activism, and it is clearly not judicial 
activism at its best.
    Many of us in the Congress are acutely concerned with the 
new limits that are now developing on our power to address the 
problems of those who elect us to serve. These decisions affect 
in a fundamental way our ability to address major national 
issues, like discrimination against the disabled and the aged, 
protecting the environment, and combatting gun violence.
    If the trend continues, the Family Medical Leave Act may be 
the next to go. That is a frightening prospect for thousands 
upon thousands of Americans who rely on the Act to spend time 
with newborn children or ailing loved ones without fear that 
they will lose their jobs.
    Again, the role of the Congress is to make laws. The role 
of the judiciary is to ensure the constitutionality of those 
laws. In part, the balance is guaranteed through the process of 
nominating and confirming Federal judges. This committee is 
currently considering judicial nominees who refuse to even 
discuss already decided Supreme Court cases, cases that could 
never even conceivably come before them if confirmed.
    So it is refreshing, at least in my judgment, to see 
someone who is already a judge not hiding behind unpersuasive 
defenses but doing what all good lawyers do--examining the law 
and being critical where criticism is appropriate.
    Judge Noonan, I know that you are here to teach us and to 
educate. I know that you do not want to, cannot, and will not 
engage in any partisan debate. So I am not going to get into 
any questions about nominees answering or not answering 
questions about their views on already decided Supreme Court 
cases.
    I am just grateful that you have given us your thoughts on 
this important subject through your book. I am looking forward 
to exploring your ideas further through this hearing. I just 
want to add you have a worthy co-witness who doesn't see things 
the same way, and a fellow New Yorker, Professor Hamilton, and 
we are delighted that she is here, too.
    I want to thank my good friend and colleague, Orrin Hatch. 
I think he is admired by every member of this committee. We 
sometimes go right at it, Orrin and I and every other member of 
the committee. But we know that his opinions are heartfelt, 
that he is a decent and honorable man, and somebody we can work 
with on many occasions.
    Orrin, it is my pleasure to turn the microphone--I was 
going to say the gavel; we are not going to do that, hopefully, 
for a little while--over to you.
    Senator Hatch. Thank you, Mr. Chairman. I appreciate your 
kind remarks.
    I would like to applaud my friend from New York for holding 
this hearing, which I hope will be a high-minded discussion of 
the constitutional structure and theories that underlie the 
Supreme Court's recent jurisprudence in the area known as 
federalism, which includes cases interpreting the Commerce 
Clause and the doctrine of sovereign immunity.
    Views of those cases defy partisan or political pigeon-
holding. There are people on both sides of the political aisle 
who agree, and disagree, with the Supreme Court from time to 
time. There are subtleties that are not explained simply by 
whether a person generally favors State power over Federal 
power.
    For instance, I have been critical of the Court's City of 
Boerne decision, not because I disagree with the notion of 
State or local control--I don't--but rather because I believe 
the First Amendment protects religious freedom against any 
government that seeks to interfere.
    A majority of the Supreme Court happened to disagree with 
me and I respect that. That is our system of justice under the 
Constitution. For different reasons, I was troubled by the 
College State Bank case, which caused a great deal of 
uncertainty among the owners of intellectual property. So these 
issues are not a simple matter of politics.
    A second point that must be made is that the Supreme 
Court's federalism decisions are often wildly exaggerated in 
the media. Most of the decisions have been pretty narrow, 
affecting only one part of a larger Act of Congress, and they 
have certainly not left people without legal remedies.
    In the Morrison case, for example, the Court's decision 
left intact many important programs which I happened to 
cosponsor with Senator Biden aimed at reducing violence against 
women and had no adverse effect on the existing State laws 
designed to prevent and punish acts of violence.
    In fact, I was a prime sponsor of the Religious Freedom 
Restoration Act which was in part stricken down by the City of 
Boerne case, and a prime cosponsor of the Violence Against 
Women Act.
    I might say the sovereign immunity cases, while blocking 
private suits for money damages, leave open a number of 
possible remedies, including injunctions, that protect people 
in important ways. So I hope that our witnesses will illuminate 
these issues further.
    It is a great pleasure to welcome these distinguished 
witnesses today, and I will start with Professor Marci 
Hamilton. She holds the Paul R. Verkuil Chair in Public Law at 
Benjamin N. Cardozo School of Law, Yeshiva University, where 
she specializes in constitutional law, particularly federalism 
and church/state issues.
    She served as a law clerk to Chief Judge Edward R. Becker, 
of the United States Court of Appeals for the Third Circuit, 
and for Justice Sandra Day O'Connor of the Supreme Court. 
Perhaps most important for today's hearing, she was the lead 
counsel for the successful City of Boerne, Texas, in Boerne v. 
Flores, a seminal federalism case.
    It is also a great pleasure to welcome Circuit Court Judge 
John Noonan, an outstanding Federal judge who has always been a 
renowned scholar teacher, and was so even before he took the 
bench. Judge Noonan's most recent book, Narrowing the Nation's 
Power: The Supreme Court Sides with the States, shows that he 
continues his great scholarship.
    The book of his with which I am most familiar is A Private 
Choice, published in 1979, which is a scholarly condemnation of 
the Supreme Court's decision in Roe v. Wade. He demolishes 
virtually every conceivable argument on behalf of the liberty 
of abortion, concluding with a 12-point indictment of legalized 
abortion which begins as follows: ``The liberty established by 
the abortion cases has no foundation in the Constitution of the 
United States. It was established by an act of raw judicial 
power. Its establishment was illegitimate and unprincipled, and 
imposition of the personal beliefs of seven justices on the 
women and men of fifty states. The continuation of the liberty 
is a continuing affront to constitutional government in this 
country.''
    Professor Noonan drafted and lobbied for a constitutional 
amendment to overturn Roe and to return the power to outlaw 
abortions to the States. His federalism approach influenced me 
when I cosponsored and was the prime sponsor of the human life 
amendment in 1981, which would have left the issue up to the 
respective legislatures, State and Federal, with a more 
restrictive law applicable.
    I got a kick out of it because I remember about 20 percent 
of the anti-abortion side just savaging me, and in particular 
National Review. You will be interested to know, Judge Noonan, 
just about a year ago or somewhere around in there, National 
Review came out with almost the same recommendation that I made 
back in 1981, which I think would have helped to at least put 
this into the hands of the people. I have great respect for 
Judge Noonan's scholarly opinions on both Roe v. Wade and 
federalism, regardless of where one might be on the policy of 
any issue implicated.
    Fortunately for the country, Judge Noonan was confirmed 
back in 1985, when the single-issue extremist interest groups 
did not hold such sway over this committee. I recall that his 
nomination was attacked by a group called the Federation of 
Women Lawyer's Judicial Screening Panel, not for his views, the 
group said, but for the, quote, ``intemperate zeal with which 
he holds and expresses them,'' unquote.
    The group decried his, quote, ``tone,'' unquote, saying 
that, quote, ``[t]here is a certain passion, an emotional 
pitch, if you will, which pervades Professor Noonan's work on 
the subject of abortion,'' unquote, which the group said should 
force one to, quote, ``pause and consider whether such fervor 
could magically disappear with the incantation of the oath of 
office,'' unquote.
    Well, the Judiciary Committee and the Senate looked beyond 
such unwarranted attacks and chose instead to take this fine 
scholar at his word that he would enforce Roe v. Wade and all 
other controlling Supreme Court precedents. I would like 
today's record to reflect that Judge Noonan has not, from his 
perch on the Ninth Circuit Court of Appeals, overturned the 
Supreme Court's abortion decisions, despite the fears of his 
critics. He has done as he said, as any fine judge should.
    The fact that Judge Noonan is here today at the invitation 
of this committee should be a profound warning of the price 
this committee pays, and forces the American people to pay, 
when it deprives the judiciary of the service of high-caliber 
legal thinkers on the basis of unfounded criticism made by the 
usual Washington single-issue interest groups.
    You have to admit, Mr. Chairman, that the Ninth Circuit and 
the country are better off today for Judge Noonan's service, 
right?
    Senator Schumer. I agree.

STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE 
                            OF UTAH

    Senator Hatch. OK, and we would be even better if we 
confirmed the highly qualified nominees currently pending for 
that court, Carolyn Kuhl and Jay Bybee.
    Senator Schumer. Since I want balance on the court and 
Judge Noonan is so powerful, maybe we should have three or four 
liberals just to balance Judge Noonan.
    Senator Hatch. That would be fine. That means that we would 
at least get eight or nine more conservatives before we got 
through. With the court having 24 people, 17 of them Democrats, 
and 13 or 14 appointed by Bill Clinton, you can imagine----
    Senator Schumer. It is the only one left.
    [Laughter.]
    Senator Hatch. I will tell you, he never gives up, he never 
gives up. He is just a miserable, wretched New Yorker, is all I 
can say.
    [Laughter.]
    Senator Hatch. I never give up either. I am a miserable, 
wretched Utahn.
    Senator Schumer. One of those lovely people from Utah.
    Senator Hatch. That is right.
    Judge Noonan is an example of what I have been saying about 
well-qualified judges. They take seriously their 
responsibilities of adhering to the Constitution and following 
precedent. Judge Noonan clearly disagrees with the Supreme 
Court both on Roe and on the issue of State sovereign immunity. 
In fact, he has written powerful books challenging the basis 
for those decisions. Nevertheless, as a lower court judge, he 
has no qualms whatever about being bound by these very 
precedents.
    Again, I want to thank the chairman for holding and the 
witnesses for participating in this forum for discussing the 
role of the Supreme Court, federalism, and State sovereign 
immunity.
    Thank you, Mr. Chairman.
    [The prepared statement of Senator Hatch appears as a 
submission for the record.]
    Senator Schumer. Thank you, Senator Hatch, and we very much 
appreciate your being here.
    Senator Sessions has been such a great participant in all 
these hearings.
    Would you like to make an opening statement, Senator, 
briefly?

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE 
                           OF ALABAMA

    Senator Sessions. Thank you, Mr. Chairman. I am looking 
forward to this and you really wish you could spend more time 
being prepared for these significant constitutional issues.
    I haven't written a book on the subject. I have lived with 
the Commerce Clause as a prosecutor and State attorney general, 
and dealt with sovereign immunity. I think those are historic 
doctrines that are quite valid, and I believe the Constitution 
clearly requires an interstate commerce nexus for most 
activities of the Federal Government.
    I believe historically there has been no doubt that there 
is a doctrine of sovereign immunity that protects States from 
destruction. The power to sue is the power to destroy, so the 
State has a right to limit how much it subjects itself to 
attack financially.
    So I look forward to the hearing today.
    [The prepared statement of Senator Sessions appears as a 
submission for the record.]
    Senator Schumer. Thank you, Senator.
    Now, let me introduce our first witness, Judge John T. 
Noonan, Jr. Judge Noonan is a senior judge on the United States 
Court of Appeals for the Ninth Circuit, Orrin Hatch's favorite 
circuit. He was appointed to the bench by President Ronald 
Reagan in 1985. Judge Noonan received both his B.A. and law 
degree from Harvard University. He also earned a Doctorate of 
Philosophy from Catholic University.
    Judge Noonan began his legal career at the National 
Security Council. He then moved on to private practice before 
joining the faculty at Notre Dame Law School. Judge Noonan 
later taught at Boalt Hall School of Law at the University of 
California-Berkeley.
    Among several other works, Judge Noonan is the author of 
the recently published book entitled Narrowing the Nation's 
Power: The Supreme Court Sides with the States, where he 
presents his own view of how the Supreme Court in recent 
decisions has shifted the balance of power in the country away 
from Congress toward the States and toward the Court itself.
    Judge Noonan, your entire statement will be read into the 
record and you may proceed as you wish.

  STATEMENT OF HON. JOHN T. NOONAN, JR., JUDGE, UNITED STATES 
    COURT OF APPEALS FOR THE NINTH CIRCUIT, SAN FRANCISCO, 
                           CALIFORNIA

    Judge Noonan. Thank you very much, Senator Schumer and 
Senator Hatch, for your welcome. I was glad to respond to your 
joint invitation, with the emphasis that it would be a fully 
bipartisan affair.
    I note that the legislation that was held unconstitutional 
in the Supreme Court decisions we are addressing was passed by 
large bipartisan majorities and signed by both Republican and 
Democratic Presidents. The issues raised by the decisions are 
not partisan political issues. They cut more deeply into the 
structure of our American Government.
    I have submitted a seven-page statement. I am just going to 
hit the highlights, first summarizing the propositions that are 
established by the recent decisions of the Supreme Court.
    First, all the States have entered the Union--and I quote 
the Court now--entered the Union ``with their sovereignty 
intact.'' That has been put forward four times by the Supreme 
Court since 1991.
    Second, the immunity of the States from suits by 
individuals from damages is not a judge-made rule of common 
law, but is a constitutional principle embodied in, but larger 
than, the 11th Amendment.
    Third, under its power to regulate commerce, Congress does 
not have the power to pierce the immunity of the States.
    Fourth, under the power to enforce the 14th Amendment ``by 
appropriate legislation,'' as section 5 of the Amendment puts 
it, Congress must now conform to criteria set by the Court in 
City of Boerne and its sequelae.
    What is now required as a matter of constitutional law is a 
record of evidence that has been taken by Congress. The 
evidence must be more than allegations and it must be more than 
anecdotes. The evidence must establish the existence of a 
pattern of evil, a national pattern, and then the response of 
Congress must be proportionate and it must be congruent.
    Now, as corollaries of those decisions, Congress cannot 
enact preventative legislation under the 14th Amendment. It 
cannot prohibit States from discrimination that is actually 
irrational, but might be supposed to reflect some rational 
stereotype. The holders of patents, copyrights, and trademarks 
cannot seek damages from a State institution infringing on 
their rights, as Congress has flunked the Boerne criteria in 
its legislation protecting those rights.
    That is the judicial landscape. I will add a brief 
commentary. First, as to the intact sovereignty of the 50 
States, I quote the Supreme Court in 1816: The Constitution 
``is crowded with provisions which restrain or annul the 
sovereignty of states in some of the highest branches of their 
prerogatives.'' Of course, there is provision after provision 
in the Constitution which does infringe or annul State 
sovereignty. It is not intact. That cannot be the case.
    Second, as to the basis for State immunity, at common law, 
as we know from Blackstone's famous commentaries, the king was 
immune from suit because it was important, as Blackstone says, 
to convey to his people that the king was a superior being.
    We took into the United States, in at least some of the 
States, that common law principle. But that it was a 
constitutional principle has very little support, and the text 
of the 11th Amendment does not mention immunity, and it does 
not mention sovereignty.
    The basic cases of the Marshall Court establishing our 
federalism show that sovereignty of the States can be invaded 
again and again on behalf of Federal legislation, and there is 
no convincing reason put forward now to create State immunity. 
It would be ridiculous for a State to invoke it to avoid paying 
its bonds. It is not a good principle for a State, to put it 
mildly, to escape liability for its torts. As for the dignity 
of a State, a State is not a human being who does have dignity, 
and a State is not a king who has to be considered a superior 
being.
    Now the breadth of the States' immunity is far broader than 
it was when it was the royal immunity. First, it is extended to 
all enterprises that act on behalf of a State. State 
universities, State university presses, State university 
laboratories, and a large variety of other boards, commissions, 
and agencies now enjoy this immunity.
    In 1789, the States did not have these multiple arms, and 
now in the recent Ports Authority case of this past term 
immunity has been extended to all suits started by individuals 
against the States before administrative agencies of the 
Federal Government. In 1789, these independent agencies, set up 
by Congress to carry out the laws, did not exist. But now 
agencies enforce the Clean Air Act, the Clean Water Act, the 
Toxic Substances Control Act, the Solid Waste Disposal Act. All 
of these agencies are now barred by Ports Authority from 
holding administrative hearings on the complaints of a citizen 
against an agency or activity of a State.
    The Violence Against Women Act was done in because it was 
said not to regulate commerce. Robbery and extortion are not 
commercial activities, but no one has doubted that the Hobbs 
Act, which prohibits robbery and extortion, is constitutional.
    The traditional understanding of the power of Congress is 
that it is complete in itself and may be exercised to its 
utmost extent. The power under Article I has been now denied in 
Seminole Tribe as penetrating State immunity. It has not been 
explicitly decided by the Supreme Court whether the bankruptcy 
law of the United States can trump State immunity. If Seminole 
Tribe is followed, the bankruptcy law will be subject to the 
immunity of States.
    The Court has not decided explicitly whether the exercise 
of the war powers under Article I can trump State immunity. But 
there are now two cases, one from Puerto Rico that was reversed 
in the First Circuit, and another from Indiana, where the 
States have made that defense that they are immune from the war 
powers.
    Finally, and most importantly, I think, for Congress, the 
criteria of Boerne and its sequelae are binding on every 
Federal court. The Federal District Court in Guam as much as 
the Supreme Court itself must now measure Federal law if it is 
challenged in terms of these criteria.
    As a consequence, every Federal judge is made a monitor of 
Congress. The Federal judge will scrutinize a law enacted under 
the 14th Amendment for the evidence establishing a pattern of 
the existing national evil the law is supposed to cure. The 
Federal judge will determine if the law is a proportionate and 
congruent response.
    Before a case reaches the Supreme Court, a variety of 
Federal judges will exercise this function of monitoring. 
Congress is subjected to review at least as much as a Federal 
administrative agency, perhaps more so, for the reasonableness 
of its response, and the burden is put on the U.S. Government 
to show that an evidentiary record was made and that the 
response of Congress was proportionate and congruent.
    The standard set by City of Boerne and its sequelae is new, 
and it is high. It represents a substantial increase in 
judicial supervision of Congress. It effects a shift in power 
from the Congress to the judges, and its invention could be 
understood as an invasion by the judiciary of the sphere given 
by the Constitution to the Congress.
    [The prepared statement of Judge Noonan appears as a 
submission for the record.]
    Senator Schumer. Thank you very much, Judge Noonan, for 
your strong, intelligent testimony.
    Now, we are going to hear from Professor Marci A. Hamilton. 
Professor Hamilton is the Paul R. Verkuil Professor of Public 
Law at the Benjamin N. Cardozo School of Law. She earned a B.A. 
at Vanderbilt University, master's degrees at the University of 
Pennsylvania, and finally her law degree at the University of 
Pennsylvania Law School, where she graduated magna cum laude 
and was editor-in-chief of the law review.
    Professor Hamilton clerked for Judge Edward R. Becker, of 
the U.S. Court of Appeals for the Third Circuit, and she also 
clerked for Justice Sandra Day O'Connor on the Supreme Court. 
Professor Hamilton publishes extensively and speaks frequently 
in the area of constitutional law, and is often involved in 
Supreme Court litigation addressing cutting-edge constitutional 
law issues.
    Most particularly for our purposes, she litigated the case 
that the judge just referred to, City of Boerne, in which the 
Supreme Court found that Congress exceeded its power in passing 
the Religious Freedom Restoration Act. I should note that I was 
the lead sponsor of that in the House. Many of my laws are 
being struck down by the courts. This is a case that gets 
substantial treatment in Judge Noonan's book.
    Your entire statement, Professor Hamilton, will be read 
into the record and you may proceed as you wish.

STATEMENT OF MARCI A. HAMILTON, PAUL R. VERKUIL CHAIR IN PUBLIC 
LAW, BENJAMIN N. CARDOZO SCHOOL OF LAW, YESHIVA UNIVERSITY, NEW 
                         YORK, NEW YORK

    Ms. Hamilton. Thank you, Mr. Chairman and Senator Hatch, 
for including me in this hearing today. These are very 
important issues. They are being debated in the press, they are 
being debated in the academy, and I will respectfully disagree 
with Judge Noonan's reading of the Constitution.
    Here, I would like to make just three points. The Framers 
went to the Convention to fix the Articles of Confederation. 
The problem was that the States had been incapable of 
conducting war and international trade by themselves. The 
answer was to add a national government, but there was no 
question that the States would continue to also be governments, 
to be sovereign. The innovation of the Framers was to create a 
dual sovereign system. It was a brilliant innovation which 
would create two governments that could simultaneously serve 
the greater interests of the people.
    Alexander Hamilton, who is quoted at the beginning of Judge 
Noonan's book, assumed that Congress would not be interested in 
the arenas that were assumed to be left to the States. He 
thought that Congress would have no interest in those arenas 
because it would only want to govern the truly national issues. 
Congress would be interested in war, federal taxation, and 
spending.
    But as it turned out, Congress, when it was not prohibited 
from expanding its interests, was willing to venture into any 
territory. So during the 20th century when the Supreme Court 
refused to draw the lines that the Constitution requires 
between the Federal Government and the State Government, 
Congress came to have plenary power. There was no arena that 
Congress would not enter. The reactions by Judge Noonan, Linda 
Greenhouse for the New York Times, and others are a reaction to 
that status quo.
    What the Court has done with its federalism decisions, 
which are not that many, actually--is to remind us of the 
fundamental constitutional arrangement. The courts have always 
been in the business of interpreting the lines of power in the 
Constitution. They have always determined the separation of 
powers. They have always been in the business, at least since 
incorporation of the Fourteenth Amendment, of interpreting 
church/state relationships of power.
    The burden rests on the detractors of the Court to explain 
why it is that with respect to federalism the courts are 
supposed to stand aside and let the Federal Government take 
over the power that was lodged in the States at the time of the 
framing. As a matter of constitutional history, I simply cannot 
agree that the Court has gone the wrong way. To the contrary, I 
think it was much too little and much too late.
    Now, it is a mistake to assume, as all of the Court's 
critics do, that federalism will only serve conservative 
interests. Rather, federalism leaves the States to experiment, 
to work out different approaches to achieving the public good, 
e.g., in arenas like assisted suicide or even the medical use 
of marijuana.
    Federalism does not take policy away from the people. 
Rather, it only changes the locus of decisionmaking. The 
question in the federalism cases is only does the Federal 
Government get to decide this or do the States get to decide 
this? It does not shut down any particular policy.
    The pragmatic upshot of the federalism decisions is that 
lobbyists may not have one office anymore. They may not assume 
that D.C. is the only location for them. Rather, they now have 
to have 51 offices, 50 States plus a Federal office.
    There is no constitutional right to lobby only one entity. 
So the objection that now the 50 States are in charge of a 
policy and therefore lobbying will have to be taken there just 
doesn't carry any water.
    There is an underlying assumption in the criticism--and 
this is definitely true with respect to Linda Greenhouse's 
criticisms and with respect to many in the academy--that one 
simply can't trust the States. They are supposedly bad actors 
and the Federal Government is the savior for all civil rights.
    But what the Supreme Court noted in both the Garrett 
decision, invalidating aspects of the Americans With 
Disabilities Act, and in the Kimel decision, invalidating 
aspects of the Age Discrimination in Employment Act, is that in 
both of those arenas the States were already protecting rights.
    For example, with respect to disability discrimination, the 
vast majority of States were invalidating disability 
discrimination when Garrett was decided. So the notion that 
civil rights are being suppressed by the federalism decisions 
is not factually true. The federalism cases are, rather, 
sending these decisions to the States rather than letting them 
sit solely with the Federal Government.
    Let me just close by saying that I see three pragmatic 
results of the federalism cases. One is that, in fact, very 
little of Congress' enormous power has been diminished and the 
reactions have been overreactions. The case that I don't see in 
Judge Noonan's book and I don't see in the general criticisms 
of the court is Condon v. Reno, where the Supreme Court upheld 
the Drivers' Privacy Protection Act against a federalism 
challenge. Why? Because the States were acting as economic 
actors in a market of information. So when the States act as 
part of the economy and not out of their sovereign ability to 
regulate, the Federal Government still has a great deal of 
power.
    Second, the lobbyists now are going to have to go to the 
States. As I said earlier, that is a pragmatic result and it 
was already happening. It is not a huge change in the 
landscape.
    Finally, the focus of Congress may be permitted to be 
shifted a bit away from having to address every conceivable 
issue that a constituent or a lobbying group can imagine. In a 
time of international terrorism and an economy in need of 
attention, letting the States carry some of the policy water 
seems to me to be a relief for an overburdened Congress and not 
bad news.
    I would be pleased to take questions.
    [The prepared statement of Ms. Hamilton appears as a 
submission for the record.]
    Senator Schumer. Well, thank you very much, Professor 
Hamilton. Again, your testimony, I thought, was incisive and 
intelligent. You are a worthy counter to Judge Noonan and I am 
glad you are my constituent.
    Ms. Hamilton. Thank you.
    Senator Schumer. Let me start off with you, since we 
finished with you. First, you did make something of an 
exception for economic issues, which is where most of the 
lobbyists pay their attention to. There are a few lobbyists who 
are involved in the others, but that is where they all are.
    For instance, let me give you an example and just ask you 
to comment on this. Traditionally, insurance has been regulated 
by the States. You can make an argument that each individual 
has an insurance policy and it is not that much in the throes 
of commerce.
    But in the last few years, the heads of the insurance 
industry have come to us and said we need a Federal law because 
to go to each of the 50 States is no longer feasible or 
practical in this new economy, the reason being that new 
products come up so quickly, No. 1, that by the time they get 
approval from most of the States, there is another new product. 
Second, it has become a world market and they have foreign 
competitors and have to go to foreign places and it really puts 
them at a competitive disadvantage.
    Would you say that that is sort of acceptable Federal 
legislating, even though traditionally it has never been part 
of the Federal Government? We have left insurance to the 
States. What would be your feelings about that?
    I would just say it is a greater consequence than just 
sending the lobbyists to the States.
    Ms. Hamilton. Where you have an arena where the 
externalities are such that the individual States can't 
efficiently govern the market, that is probably the best 
argument for saying that the Federal Government needs to 
intervene.
    So I think in the case of the insurance industry, about 
which I know very little, the question would be whether or not 
it is true, in fact, that the market can't work through a 50-
State system.
    Senator Schumer. It works, but it works more----
    Ms. Hamilton. Inefficiently.
    Senator Schumer. More inefficiently.
    Ms. Hamilton. If it is inefficient, I think that is an 
argument to go to the Federal level.
    There is no arena that the Constitution identifies as 
solely relegated to the States. What we have, rather, is 
traditional areas that the States have had the first power 
over. And those arenas are not really regulated arenas like 
insurance, but rather land use is one of them. Local crime and 
incarceration is another issue. So there are arenas where I 
think it would be easy for me to say, yes, I think they belong 
to the States.
    Senator Schumer. I had a little debate once with Justice 
Scalia in one of those Fred Friendly things. It was at 
Constitution Hall, in fact, in Philadelphia, and he was making 
the argument that the Brady law is something that should be 
left to the States; let each State determine its waiting 
period.
    The counterargument, of course, is what happens when one 
State has strict regulations against guns, including a waiting 
period? Gun-runners go buy the guns, say, in South Carolina, 
which has no--well, they do, but go to a State that has no 
waiting period and then just run them up here. Sure, New York 
State could set up a toll booth at the Lincoln Tunnel and 
require everybody to open their trunk and see if they have 
guns, but that would slow commerce immeasurably.
    Do you agree with the sentiments, at least, that were 
expressed that day by Justice Scalia that a waiting period 
should be left to the States? That is a traditional area, 
crime, which you mentioned just a minute ago, and yet there are 
commercial, if you will, or interstate commerce implications.
    Ms. Hamilton. The courts addressed the Brady Act in Printz. 
To the extent that the Federal Government is directing or 
commandeering the way that the States regulate, then I think it 
is unconstitutional. If the Federal Government is, however, 
carrying out those policies itself, it is a very different 
issue. So I agree with the Printz decision. I think it was 
unconstitutional for Congress to direct the states to carry out 
its policies.
    Can the Federal Government regulate gun usage? I think 
there are arenas where it can, but direct regulation of the 
States is definitely----
    Senator Schumer. What about mandating a waiting period 
everyplace in the whole country?
    Ms. Hamilton. It depends on who carries out monitoring the 
waiting period. If the Federal Government tries to coopt the 
State government to do its bidding, then it is 
unconstitutional.
    Senator Schumer. But you would let the Federal Government 
then enforce it?
    Ms. Hamilton. There is nothing in the briefing in that case 
or in the reasoning to say ``no.''
    Senator Schumer. I am going to give you some of the 
rhetoric you have thrown at us and ask you comment on that, and 
then I will proceed to Judge Noonan.
    This is an article you wrote called ``federalism and 
September 11th: Why the Tragedy Should Convince Congress to 
Concentrate on Truly National Topics.'' Here is one of your 
quotes: ``While Congress was piddling around with duplicating 
State laws in a remarkable number of categories, apparently no 
one in the Capital was studying seriously what America would do 
if attacked by anthrax or smallpox,'' unquote.
    You go on to describe our actions in writing the laws we 
passed, the laws that the Supreme Court invalidated, to be, 
quote, ``like a child who cannot decide which toy to pick at 
the toy store,'' and you said we are avaricious in expanding 
our powers.
    Now, most of my constituents--clearly, not all; you are one 
of them--want the Congress to help with national problems like 
violence against women and discrimination against seniors and 
the disabled. We have seen the slow progress made at State 
levels there.
    They basically don't have much of a predilection; they want 
to get the job done. I rarely find that when there is a real 
problem out there, people say, well, you shouldn't do it, the 
States should do it, or the States shouldn't do it, you should 
do it.
    I think your statements are pretty tough.
    Ms. Hamilton. Yes.
    Senator Schumer. I mean, I would like to use them in 
buttressing my arguments because I think it shows something of 
a contempt for Congress. So why don't you elaborate a little 
bit on that? I mean, to say that Congress wasn't focusing on 
terrorism because it was dealing with other issues doesn't 
strike me as quite fair.
    Ms. Hamilton. My focus there is on the point I was making 
earlier, which is that Congress does tend to run toward what I 
have called in other writings look-good, feel-good legislation.
    Senator Schumer. Why do you think Congress does that?
    Ms. Hamilton. Because it had no limits on its power from 
1936 to 1995.
    Senator Schumer. Do you think it has anything to do with 
constituent demands and inability of the States to deal with 
those issues?
    Ms. Hamilton. With all due respect, the people are not the 
Constitution. Demands by a majority, or even by a vocal 
minority, cannot trump the requirements of the Constitution. 
Constituents, I think, have been misled into believing that 
Congress has an answer to every social problem. And, in fact, 
it doesn't.
    As to the charge that the States are not able to serve 
these interests, it is just not empirically true. The vast 
majority of States, as I said earlier, do have disability 
legislation. Many have age discrimination legislation. In fact, 
in my experience in litigating these issues, the States are the 
most likely to jump ship from the litigation challenging such 
litigation and to side with the Federal Government for 
political reasons.
    Senator Schumer. With the Violence Against Women Act, there 
were very few State laws in this regard. I mean, is your 
criteria whether the States are able to do this or not? It is a 
constitutional criteria, I presume.
    Ms. Hamilton. There are constitutional criteria. The 
question is whether or not it is a truly local concern. With 
respect to the Violence Against Women Act, it had a fundamental 
flaw. The error that was identified in the hearings was that 
local government was not protecting the rights of the victims, 
and that is a very serious problem and no one believes that 
more than I do.
    But the provision at issue regulated the perpetrators and 
bypassed the local governments. Had the law been crafted to 
regulate the States, I think VAWA might have survived under 
section 5. But it wasn't a regulation of the States. Therefore, 
section 5 of the 14th Amendment was an inadequate source of 
congressional power. Finally, the argument that the violent act 
was affecting commerce was too attenuated.
    Senator Schumer. Didn't you just argue the opposite when it 
came to, I think it was the Brady case? There, the Congress was 
going through the States and you said, no, it should do it 
itself.
    Ms. Hamilton. The question is whether or not the Congress 
is directly regulating the regulation of the States. That is 
what happened in Printz. It was commandeering State actors to 
act for the Federal Government.
    Senator Schumer. You were just saying the opposite in terms 
of Violence Against Women, I thought.
    Ms. Hamilton. No.
    Senator Schumer. Explain to me the difference.
    Ms. Hamilton. The Violence Against Women Act was unlike the 
Brady Gun Act because in the Violence Against Women Act what 
was being regulated was not the States, but rather the 
perpetrator. The civil remedy was to be had from the 
perpetrator, so it was not a regulation of the States.
    Section 5 of the 14th Amendment permits direct regulation 
of the States if they are violating the Constitution, but that 
is not what VAWA did.
    Senator Schumer. OK. Well, I am going to ask Judge Noonan a 
few questions. I don't quite agree with you on all of this. 
Actually, I am reminded that my time is up. I have a whole 
bunch of questions for Judge Noonan, but let me call on Senator 
Sessions and then we will come back to me for a second round.
    Senator Sessions. Thank you, Mr. Chairman. This is a very 
interesting hearing. It deals with the fundamental structure of 
our Government.
    I would agree with you, Professor Hamilton, that the 
Supreme Court is not--let's see if I correctly interpret you 
that the Supreme Court is not coming up with some new doctrine 
in Lopez and some other cases, but in fact is just recognizing 
a doctrine that hasn't recently been talked much about and in 
some cases almost ignored.
    Ms. Hamilton. Absolutely.
    Senator Sessions. But it would not be quite as ignored, 
Judge Noonan, as I think you suggest. The Hobbs Act, which I 
used to prosecute, does allow the Federal Government to 
prosecute offenses that deal with extortion and robbery, those 
kinds of crimes. But the title of it, Section 1951, is 
``Interference with Commerce by Threats of Violence or Robbery 
or Extortion.''
    The prosecution of theft of a stolen motor vehicle is not 
just the fact that the Federal Government does not prosecute 
the theft of a stolen motor vehicle in Federal court. It 
prosecutes the interstate transportation of a stolen motor 
vehicle. It does not prosecute prostitution, but it prosecutes 
interstate transportation of a person for the purposes of 
prostitution.
    Wouldn't you agree that our criminal law, as a Federal 
judge--and you have seen it--is consistently stating within the 
statute itself an interstate commerce nexus?
    Judge Noonan. Are you asking me, Senator?
    Senator Sessions. Yes, sir.
    Judge Noonan. Yes, I certainly would agree. Of course, if 
you transport that reasoning to the Violence Against Women Act, 
the position of Congress was that a crime like rape interfered 
with the movement of women in business in the United States, 
that this was an interference with commerce just as much as 
robbery and extortion are interferences with commerce under the 
Hobbs Act, or as prostitution in interstate commerce is a form 
of interference in commerce.
    The Supreme Court, as I understood it, said, well, the 
activity being regulated is not commercial. No, it isn't 
commercial. Prostitution in its basic form is not commercial; 
it is commercially exploited. Robbery and extortion are not 
commercial; they are preying on commerce. But that is what 
Congress said about violence against women: it is preying on 
commerce. So I feel the analogy was pretty strong.
    Senator Sessions. Well, I think about the Lopez case. 
Congress has re-passed the Lopez statute and utilized the 
traditional language that the firearm had traveled in or was a 
part of interstate commerce, adding an element of the offense 
which must be proven beyond a reasonable doubt that commerce 
did occur, before you can make that a Federal crime.
    Do you think that will save the statute or do you think it 
makes any difference in your analysis?
    Judge Noonan. Well, I really don't want to pronounce on 
constitutionality of legislation that is on review. But I will 
say this to you, Senator: Lopez is not mentioned in my book. It 
did not fall within the kind of focus I was making on decisions 
that eroded the power of Congress. Lopez is something that I 
certainly thought was perfectly appropriate.
    Senator Sessions. So you would agree with that one?
    Judge Noonan. I did.
    Senator Sessions. With regard to your question, Mr. 
Chairman, about insurance regulation, I share some of those 
same concerns. But I would ask Professor Hamilton, when we are 
dealing with major national or even international insurance 
corporations that do business in every State, isn't that 
perfectly what the Founding Fathers were concerned about and 
would not, if Congress chose to act, clearly be within the 
Commerce Clause?
    Ms. Hamilton. I think that is right. If we are dealing with 
a business that is running across State borders, that is the 
kind of commerce they had in mind.
    Senator Sessions. But the Constitution does require, unless 
there is some other provision allowing regulation, that 
Congress can act in matters affecting interstate commerce. So 
that is a limiting power on the sovereignty of the Federal 
Government, is it not?
    Ms. Hamilton. Well, what the Court held in Lopez is there 
must be a showing of substantial effect on interstate commerce. 
With the insurance industry, I suppose that would be hard not 
to show, but there are industries where it is more difficult to 
show that there is a substantial effect on commerce.
    Senator Sessions. I think there may be a time in various 
industries that were at one time basically local become so 
national that it would be appropriate for us to regulate what 
we have not regulated before. Traditionally, though, we have 
insurance departments in every State and they have done this 
and it is a sort of acknowledgement of one area of expertise 
and the Federal Government does not move in there, and I think 
that is significant.
    Professor Hamilton, isn't it true that there is only a 
small fraction of the total U.S. work force that would be 
affected by the Supreme Court's sovereign immunity decisions? 
In other words, basically it involves only that small fraction 
who would be working for a State government, but the Federal 
laws that protect them otherwise apply.
    Ms. Hamilton. The Commerce Clause can be used to regulate 
private interstate industry. The federalism cases only go to 
State actions and the question of the Federal Government 
regulating the States. Sovereign immunity only protects against 
monetary damages when you have State-affected entities. So it 
is a very small proportion.
    Senator Schumer. How many?
    Ms. Hamilton. How many?
    Senator Schumer. 3.7 percent. What is that, 5, 6 million 
people--no. The total work force is, what, 120 million?
    Senator Sessions. 3.6 percent is what I have.
    Ms. Hamilton. We have to be very careful because the states 
are immune under the 11th Amendment from damage actions brought 
by citizens. But, of course, the States can be forced to pay 
through Federal Government actions. The Department of Justice 
can go after any State it so desires. The 11th Amendment does 
not stand in the way of those suits.
    Senator Schumer. Does that include universities, all the 
categories Judge Noonan mentioned, not just State governments?
    Senator Sessions. I think so. Of course, States have 
extraordinary civil service regulations that usually go beyond 
the private sector at any rate. I don't hear many people 
wanting to quit the Federal or State government, frankly.
    Are you saying, Judge Noonan, that you don't think there is 
a legitimate basis for the claim of sovereign immunity for 
State government, or just creatures of the State governments 
like universities? Do you believe the whole doctrine is without 
basis? How would you summarize your view on that?
    Judge Noonan. Well, let me distinguish. As a judge of the 
United States addressing a case, I am bound by the Supreme 
Court of the United States that tells me it is now a 
constitutional principle that the States have sovereign 
immunity.
    If I take off my judicial robes and look at it as a 
historian, I would say sovereign immunity was something that 
existed at common law as a common law principle. It could be 
trumped by statute and it was not a part of the Constitution, 
except to the extent that the 11th Amendment said an out-of-
state citizen could not sue a State. To that extent, it is a 
constitutional principle. So there is a distinction there 
between what is now held as doctrine and what I think a 
historian would say the facts are.
    Senator Sessions. I will ask you if you are aware of any 
case, State or Federal, that allows a State to be sued without 
a State statutory provision allowing that.
    Judge Noonan. I think that is the way the law operates, 
yes.
    Senator Sessions. So I guess all I am saying is it is not a 
radical thing, would you say, Professor Hamilton, for the 
Supreme Court to affirm this principle of sovereign immunity? 
In fact, it has remained virtually inviolate throughout the 
history of our Nation. It would be an activist decision to 
eliminate it, would it not?
    Ms. Hamilton. It would be a constitutional amendment to 
eliminate it, and for the Court or the Congress to engage in 
that kind of activity without going through Article V is a 
problem. Sovereign immunity is solid in the Constitution. It is 
part of protecting the States against those entities that would 
rob their coffers, essentially, and it is necessary.
    Senator Sessions. Thank you.
    Judge Noonan. Well, if you look at my book, Senator 
Sessions, you will see a series of decisions by the John 
Marshall Court which really established our federalism in which 
the States were brought to book. They include cases like 
Worcester v. Georgia, which is a case directly against the 
State of Georgia. So sovereign immunity in the modern sense is 
not part of our constitutional heritage.
    Senator Schumer. Thank you, Senator Sessions.
    Let me go to Judge Noonan now. Judge, as I mentioned in my 
opening remarks, when a court invents new theories to strike 
down law after law, that looks to me like judicial activism. 
When a court uses one approach to constitutional interpretation 
when it comes to a certain set of cases, then uses the opposite 
approach to constitutional interpretation for another set of 
cases, that looks to me like outcome-driven decisionmaking. To 
me, that is judicial activism.
    You were, I think, quite brave and quite right to publish 
this book and you make some bold comments and we are all better 
for having you prick our thinking, but you stop short of 
calling the Supreme Court jurisprudence activism. Why? Isn't 
that exactly what it is?
    Judge Noonan. Well, I don't call it that because I think 
this is what judges do all the time. They interpret. They are 
not parrots. They are applying their reason to the Constitution 
and to the facts before them.
    ``Activist'' is used as an abusive term, used at least 
originally by people criticizing judges who were characterized 
as liberal, and now it could be used with equal propriety as an 
abusive term of conservative judges. But it really is just a 
word that can be found useful in talking about almost any 
judge. I would rather get rid of it.
    I think judges respond to situations otherwise than as 
machines, otherwise than as parrots. I note so often, if I may 
take the liberty with this committee, that people are asked, 
will you observe the Constitution? Of course, every judge will, 
but to observe it requires reasoning. It requires more than 
just taking the words and just parroting them.
    Senator Schumer. Of course, and things change, cases 
evolve. Doctrines may stay the same, but you are going to have 
new fact patterns all the time.
    Let me ask you this. In City of Boerne, the Supreme Court 
articulated a standard that I never really heard before. It 
held that Congress could properly act pursuant to its power 
under the 14th Amendment only if it could demonstrate, quote, 
``the congruence and proportionality of its remedy to specific 
past discrimination.''
    This new requirement, it seemed to me, was invented from 
whole cloth that has no basis in prior decisions or in the 
Constitution, and it effectively changed the rules for proper 
congressional action without giving Congress notice or an 
opportunity to meet the new test.
    The Court has since applied this new test to invalidate 
important legislation that was passed long before the City of 
Boerne decision. It prevented the States from violating 
copyrights and patents, and discriminating on the basis of age, 
disability, and gender. Despite ample legislative history 
detailing the need to remedy these violations, the Court used 
its new test and found the laws to be unconstitutional as 
applied to the States.
    In my mind, legislating shouldn't require a crystal ball to 
see what roadblock the Supreme Court might next throw up. So 
how is Congress supposed to protect the laws we write to 
protect the citizens of this country from a Court which appears 
more concerned with protecting the States than the people of 
those States?
    Judge Noonan. Well, that is, you might say, a fundamental 
question. I think you have to respond to what you have in front 
of you, surprising as it is. I frankly don't think the series 
of decisions that begin with Boerne could have been 
anticipated.
    Senator Schumer. I was here. I wrote some of the laws they 
threw out.
    Judge Noonan. As Justice Breyer said in his dissent in the 
Ports Authority case, there is no clear end in sight. You can't 
say now where it will end. So I think you have to legislate 
with those cases in mind and with such devices that have not 
yet been held unconstitutional by the Supreme Court. Of course, 
there are some ways of legislating that have not been addressed 
by the Court.
    Senator Schumer. You also have sort of a sqwishy notion of 
congruence and proportionality which is awfully hard to figure 
out. It almost seems instinctive to me--I may be wrong on 
this--that that kind of judgment test belongs more in a 
Congress than in a court.
    Judge Noonan. I think there is a particular difficulty 
because while you can have some sense of what proportion is, 
congruence seems to mean it is fitting. What is fitting? That 
seems to be very much a legislative judgment.
    In the Boerne opinion itself, sometimes the two terms are 
used conjunctively and sometimes disjunctively. It is 
``congruent and proportionate'' or ``congruent or 
proportionate.'' But as the course of adjudication has gone on, 
there are two tests, not alternate tests.
    Senator Schumer. Do you want to comment on that, Professor 
Hamilton, with your long involvement in Boerne?
    Ms. Hamilton. The Boerne decision actually reflects a 
culmination of the preceding section 5 cases. I understand that 
it came as a surprise to some, but if one read(s) back through 
the Civil Rights Act cases, what the Court is essentially 
saying is that Congress has a power to regulate the States 
under section 5, but that power is not unlimited. The open 
question was how the limits would be articulated.
    The proportionality rule comes straight out of the law of 
remedies. The Court held that section 5 provides a remedial 
power, that Congress can fix constitutional evils in the 
States. I have written an article about it. I have actually 
written more than one thing about it, but if you look to the 
law of remedies, congruence and proportionality are always used 
to try to fit the remedy to the problem.
    Senator Schumer. Give me an example of congruence, because 
I share Judge Noonan's----
    Ms. Hamilton. Congruence means the law is aimed at the evil 
that has been identified. This is something the Court does in 
the First Amendment all the time. It is nothing new to legal 
analysis. These may be two new words in the federalism 
doctrine, but they do not change the actual operation of the 
courts.
    Senator Schumer. But you would then not be terribly 
reluctant to have the courts say that the findings of Congress 
that this was congruent, just to take two concepts that you 
have advocated, are wrong. We could have a lot of findings and 
say this is congruent, this fits, and you put us in almost a 
box. You say, well, a court could come along and rule, well, it 
is really not congruent, and there seems to be almost no 
deference with that kind of sqwishy word and the new Court's 
view that they can sort of overrule the findings of Congress 
which have always been given big deference. You combine those 
two concepts and you are really changing things around rather 
dramatically, in my judgment.
    Ms. Hamilton. I would disagree with that, respectfully. The 
law of remedies has been employing those phrases for a long 
time and the courts have been trying to fit remedies to wrongs.
    I think one needs to look carefully at the federalism 
decisions that have come down since 1995, especially since 
Boerne, because the primary finding in these cases is that 
there are no widespread constitutional violations in the 
country to justify the exercise of the power in the first 
place.
    The threshold question is how are the States behaving? Are 
they violating the Constitution? If they are violating the 
Constitution, then Congress actually has a broad hand, and the 
Court has said that more than once. The turning point in these 
cases--the determinative element has not been congruence and 
proportionality. It has been whether or not there have been 
widespread and persistent constitutional violations. That is 
the key.
    Senator Schumer. Particular for a State, that is a rather 
narrow group, that is a rather narrow field. I mean, many of 
the other things we seek to do have other bases of power, not 
constitutional protection of the citizens against the States. 
That is not much salve to what I am saying here.
    I understand that if it is constitutional, obviously we 
have the right to step in. But what about in all the instances 
where there are other bases for our regulation--Commerce Clause 
or anything else?
    Ms. Hamilton. Congruence and proportionality only apply 
under section 5, and so we are only talking about the section 5 
cases.
    Senator Schumer. I think we are headed--I don't know if 
Judge Noonan agrees--we are headed to a situation where the 
basic view that Congress' findings should not be deferred to 
are going to be added to many of these other areas.
    Ms. Hamilton. Actually, I think that is a 
misinterpretation. It is part of the over-reaction to the 
cases. The fact-finding is only required under section 5. In 
fact, it is not even required, and the Court said this a number 
of times, but it is repeatedly misstated everywhere.
    The Court said that a record is not necessary to justify 
congressional legislation explicitly in Boerne; we argued this 
in Boerne and I think it is right. If there is general 
knowledge of violations of the Constitution, that is 
sufficient.
    Racial discrimination with respect to the civil rights 
acts--one hardly needed a record, although Congress had a 
record and the Court refers to it.
    The problem is where it is not clear that there have been 
widespread constitutional violations. The Court has refused to 
presume the States violate the Constitution without some 
evidence of it, and that is where the records issue comes up. 
So it is not a constitutional requirement to have a record, but 
in the absence of a record the Court will not presume 
constitutional violations.

    Senator Schumer. Do you want to comment on what Professor 
Hamilton said, Judge?

    Judge Noonan. I would draw the committee's attention to an 
article I was not aware of when I wrote my book, but since I 
have just been teaching it at Emory University Law School, this 
is by two professors at Emory and it is called ``Legislative 
Record Review'' and it is published in the Stanford Law Review.

    Professor Busby and Professor Shapiro have interpreted the 
cases differently and see a requirement in them for a 
legislative record, and they ask what is a legislative record. 
We know what an administrative record is, but Congress has not 
been used to making something they call a legislative record. 
Is it speeches, is it anecdotes? What is it? I find the set of 
questions posed in this overwhelming, and the authors don't see 
a very easy way out of it.

    I would like to submit this article to the committee 
afterwards.

    Senator Schumer. Without objection, it will be put in the 
record.

    I would just note, corroborating what Judge Noonan said, in 
Lopez and in VAWA, the Court rejected an ample record. They 
then took that record and said, well, that is not good enough, 
for a bunch of different reasons. I was part of the VAWA 
record. I was amazed when the Court overruled that record. I 
mean, they may not like the reasoning, but if there is lots of 
violence against women, it certainly is interfering with 
commerce in this country.

    Ms. Hamilton. Well, that is a leap that the Court is not 
willing to let the Congress take, thankfully.

    Senator Schumer. Why?

    Ms. Hamilton. The record in VAWA was about violence against 
women, but the record did not substantiate that these violent 
actions were commercial in nature. That is what needs to be in 
the record with respect to the Commerce Clause, and it wasn't 
there.

    Senator Schumer. I don't recall, but if we put in that a 
million person-hours were lost because of violence against 
women in terms of economic productivity, would that be enough 
for you?

    Ms. Hamilton. Well, it doesn't matter what I think. Would 
it be enough for the Court?

    Senator Schumer. Yes, well, in your view of what the Court 
ought to do.

    Ms. Hamilton. There are two doctrinal bases we are talking 
about. One is under section 5 of the 14th Amendment, no matter 
how much Congress had shown impact on commerce that wasn't 
going to turn the law into a regulation of the States, as 
section 5 requires. So I will leave section 5 to the side.

    With respect to the Commerce Clause, what had to be shown 
was that the Congress was regulating an intrastate activity, 
because the violence against the woman is unquestionably 
intrastate, and whether or not that intrastate activity would 
result in substantial effects on commerce.

    Senator Schumer. Would you recommend the Court overturn the 
Hobbs Act, which is what Judge Noonan had talked about?

    Ms. Hamilton. No, I wouldn't recommend----

    Senator Schumer. What is the difference?

    Ms. Hamilton. The difference between the two is that the 
entity being regulated with respect to violence against women 
in the way the Act was drafted--and as I said before, I think 
there are ways to draft that Act to make it work. But in the 
way that it was drafted, what was being regulated was an 
intrastate activity for which you could not show substantial 
effects on commerce.

    Senator Schumer. Well, isn't that true in what was 
regulated in the Hobbs Act?

    Ms. Hamilton. In the Hobbs Act, it was the transportation 
of the women across State lines. That is an interstate 
activity. That is quite different.

    Senator Schumer. I see. Why don't we let Judge Noonan 
respond.

    You are saying even if there are indirect effects on 
interstate, that doesn't apply. It has to be direct crossing of 
interstate lines, which is a pretty narrow interpretation of 
the Commerce Clause.

    Ms. Hamilton. It still leaves an enormous amount of power. 
But the Court is still clarifying precisely the question you 
are asking about, which is how to deal with intrastate effects 
on commerce.

    Senator Schumer. Judge Noonan, do you want to respond?

    Judge Noonan. Well, I thought that was a debate that went 
on in the 1930's.

    Senator Schumer. Right.

    Judge Noonan. And I thought we were well past direct and 
indirect. You can turn almost anything into a direct or 
indirect----

    Senator Schumer. That is what I thought, but Professor 
Hamilton is going back to that standard.

    Let me go to a second question. As you observe in your 
book, Judge Noonan, recent efforts to enforce State sovereign 
immunity are based neither on the text nor the legislative 
history of the 11th Amendment. This adventurous--that is your 
wording, not mine--reading of the 11th Amendment is embraced by 
the same Justices who, in the area of individual rights, 
complain that the rights are nowhere to be found in the text of 
the Constitution and thus are not rights at all. Privacy is the 
big one.

    It seems to me there appears to be some kind of 
inconsistency here. It strictly adheres to the text when 
interpreting the Constitution with respect to individual 
rights, but uses broader, more expansive and more creative 
approaches in all the ways that Professor Hamilton and I have 
been debating when it comes to States' rights.

    Judge Noonan. Well, I think it is fair to say that in these 
decisions the Court has given up its critique that at least 
individual Justices have made in other contexts. The key words, 
it struck me, are in Alden v. Maine, where the Court says we 
don't believe in ``a historical literalism.'' In other words, 
taking up the text out of history just won't work.

    Once the Court has said that, it seems to me it brings into 
doubt a number of these pronouncements which said you have just 
got to look at the text and the text will tell you what it 
means.

    Senator Schumer. Only in some types of cases.

    One final question for you, because I know Jeff has a few 
and we have a vote in about 9, 10 minutes. The vote is now, 
about 10 minutes left.

    Do you think there is going to be real danger--let me not 
characterize it. Do you think there is a likelihood that the 
constitutionality of the Family Medical Leave Act, which is 
coming before the Court this term, will be invalidated?

    Judge Noonan. I really don't want to speculate.

    Senator Schumer. Well, it is past you already; it is up to 
the Supreme Court, but that is OK.

    Judge Noonan. Everyone can read what is there and what the 
logical implications are.

    Senator Schumer. Yes. I am very worried about that.

    Judge Noonan. They are not hard to figure out.

    Senator Schumer. Thank you, Judge.

    Let me let Jeff ask a couple of questions and then I think 
we will call it a day.

    Senator Sessions. Well, you know, on the Hobbs Act it is 
just something I have wrestled with over the years. It was 
passed in 1945. It requires a commerce nexus. Not only does it 
require a commerce nexus, but the name of the Act is not the 
Hobbs Act. The name of it in the rubric is ``Interference with 
Commerce by Threats of Violence.'' It requires a connection 
between commerce and----

    Senator Schumer. If we rename VAWA that, would that be OK?

    Senator Sessions. It might because it would make it an 
element of the offense. I don't know about the VAWA Act, 
frankly.

    Senator Schumer. A little sophistry there.

    Ms. Hamilton. It is called the jurisdictional element.

    Senator Sessions. The jurisdictional nexus element. It has 
always been in that. The next offense, interstate and foreign 
travel of transportation in aid of racketeering--racketeering 
by itself is not sufficient.

    I had a case involving a small town where the police chief 
was taking money from people for traffic tickets and we had a 
serious doubt as to whether or not the case could be prosecuted 
under the Hobbs Act if it was only local people in the local 
town having to pay bribes to avoid the ticket. Fortunately for 
our case, somebody was involved from out of State coming 
through and we felt that provided the sufficient nexus.

    It is not going back to the 1930's to say that the 
Constitution is being violated here. Section 8 says, ``The 
Congress shall have the power to regulate commerce with foreign 
nations and among the several states.'' Now, that has to have 
some meaning. Otherwise, we are at a point of breathing in and 
breathing out somehow in air that travels.

    Isn't the Supreme Court simply struggling, Professor 
Hamilton, to put some meaning to a clause that we have always 
felt had meaning and have some rational standard for its 
application? And isn't the Court saying that merely because we 
find A, B and C as fact does not necessarily decide the 
question if it takes a finding of D to answer the question?

    Ms. Hamilton. I think that is right. I think that is 
exactly what the Court is doing.

    Senator Sessions. I just don't feel like this is anything 
other than--maybe we can disagree with precisely where you draw 
the line, but I do not believe it would be sound constitutional 
law to conclude that this phrase ``commerce'' has no meaning 
whatsoever, to define it so weakly that it covers everything 
that you could imagine. I just can't believe that that would be 
what we are talking about.

    Judge Noonan, on that subject about good people might 
disagree, do you think if a lawyer defended a hospital, as 
Elliot Spitzer, the Attorney General of New York has, on the 
grounds of sovereign immunity, or defended a defendant on the 
ground that Congress had failed to make the interstate commerce 
nexus required, that that would disqualify them from serving on 
the Federal bench?

    Judge Noonan. No. I think it is perfectly appropriate for 
lawyers to make the arguments that are there in the realm of 
precedent.

    Senator Sessions, your comment, though, makes me recall a 
case I did write the opinion in when you say we don't want 
``commerce'' to mean anything. We had a case where one animal 
rights league sued another animal rights league under the 
antitrust laws and claimed that the defendant was violating the 
antitrust laws by getting contributions that should have gone 
to the plaintiff. The way we decided that case--and I wrote the 
opinion--was non-profits are not engaged in commerce. End of 
case.

    Senator Sessions. That is very interesting. I bet Senator 
Schumer would not agree with that.

    Judge Noonan. Some universities have not picked up on that.

    Senator Sessions. Well, I know we have a nominee, Jeff 
Sutton, who has argued for sovereign immunity in the Garrett 
case. I trust our panel here will not browbeat him for 
asserting what at least is a colorable theory of law. Would you 
agree with that?

    Judge Noonan. Well, yes.

    Senator Sessions. Thank you.

    Senator Schumer. You have 2 minutes left, Jeff.

    Senator Sessions. Two minutes. Well, I won't continue. It 
is an interesting, interesting debate. I think the Supreme 
Court has taken some cases and they have attempted to try to 
establish a defensible line between what is commerce and what 
is not commerce. I do not believe it is a retreat to the 
1930's, but I believe it is simply an attempt to give meaning 
to a clear clause in the Constitution and I frankly am not 
offended by what they have done.

    Senator Schumer. We will let Jeff have the last word, other 
than for me to thank both of you. This was really an excellent 
hearing. It brought the issues to a head and will all make us 
think a great deal.

    So, Judge Noonan, thank you, and your book is something 
that is just great.

    Professor Hamilton, you did a great job and I hope we will 
be hearing from you in this committee again.

    Ms. Hamilton. Thank you.

    Judge Noonan. Thank you very much.

    Senator Schumer. Thank you.

    We are adjourned.

    [Whereupon, at 12:36 p.m., the committee was adjourned.]

    [Submissions for the record follow.]

    [Additional material is being retained in the Committee 
files.]

                       SUBMISSIONS FOR THE RECORD



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