[Congressional Record (Bound Edition), Volume 146 (2000), Part 6]
[Senate]
[Pages 8040-8045]
[From the U.S. Government Publishing Office, www.gpo.gov]



               SUPREME COURT DECISION IN U.S. v. MORRISON

  Mr. BIDEN. Mr. President, I attended the Million Mom March with my 
wife. I do not think anyone should misunderstand the significance and 
consequence of so many mothers and a number of fathers giving up 
Mother's Day to make an important point. These were not a bunch of wild 
radicals. These were a bunch of moms from rural areas, inner cities, 
and suburban areas. They were black, they were white, Hispanic, Asian 
American. They were basically making a plea. As I stood there and 
listened, I was reminded of a quote attributed to John Locke speaking 
about someone he heard. He said:

       He spoke words that wept and shed tears that spoke.

  I do not know how anyone could have attended any significant portion 
of that march and not felt, as John Locke felt, listening to the words 
these women spoke that wept and the tears they shed that spoke volumes 
about the insanity of our policy.
  Irony of all ironies; the next day, on Monday, the Supreme Court 
hands down a decision, not about guns but about the protection and 
empowerment of women in society. Yesterday, in United States v. 
Morrison, the Supreme Court struck down a provision of an act that I 
spent 8 years writing and attempting to pass--six of which were in 
earnest--the so-called Violence Against Women Act. There is one 
provision of that act they struck down and only one provision. That is 
the provision that empowered women to take up their cause in Federal 
court to make the case they were a victim of sexual abuse because, and 
only because, of their gender and to sue their attacker for civil 
damages in Federal court; empowering women to not have to rely on the 
prosecutorial system or anyone else to vindicate the wrong that had 
been done to them if they can supply the proof.
  As the author of that act, I must tell my colleagues that I was 
disappointed by the Court's decision but, quite frankly, not surprised 
by it.
  I emphasize, though, the Morrison case struck down the civil rights 
cause of action women have in Federal court, no other part of the act. 
Nothing in the Court's decision yesterday affects the validity of any 
other provision, any other program, or the need to reauthorize these 
programs through my bill, the Violence Against Women Act II, which now 
has 47 cosponsors.
  Unfortunately, I believe the Court's ruling yesterday will have a 
significant impact on Congress' ability to respond to public needs in a 
way that has not been constrained since the 1930s. The Court has been 
inching toward this decision and this line of reasoning in case after 
case over the last several years. The Court has grown bolder and bolder 
in stripping the Federal Government of the ability to make decisions on 
behalf of the American people, part of the objectives of the Honorable 
Chief Justice, who believes in the notion of devolution of power and 
thinks that the Federal Government should have significantly less 
power.
  The Court's decision--and these have all been basically 5-4 
decisions--in United States v. Lopez in 1995 struck down the Gun-Free 
School Zones Act, a decision upon which the Court heavily relied in the 
Morrison case in striking down the civil rights remedy.
  In the case of Boerne v. Flores, a 1997 case, the Court struck down 
the Religious Freedom Restoration Act. Again, this is not mostly about 
what act they like and do not like; it is about Congress' power. Those 
who thought we should not be dealing with guns were happy with the 
Lopez case substantively. Those who thought we should have more 
religious freedom in public places, our conservative friends--and I 
happen to agree with them on that point--were disappointed when the 
Supreme Court reached in and said as to section 5 of the 14th 
amendment, which is the provision which says the Congress shall 
determine how to enforce the 14th amendment, no, no, no, Congress is 
not the one; we--the Court--are going to decide.
  There, then, was another decision, the Supreme Court's watershed 
decision in the Seminole Tribe of Florida v. Florida, a 1996 decision, 
and the cases

[[Page 8041]]

that followed, in which the Court limited Congress' ability to 
authorize private citizens to vindicate Federal rights in lawsuits 
against their States, and that included the Fair Labor Standards Act 
and the Age Discrimination Act.
  Putting it in simple terms, if the State of Florida discriminated 
against somebody in State employment because of age in violation of the 
Federal act, the Court said: Sorry, Florida has immunity. A Federal 
Government cannot protect all Americans against age discrimination 
because of a new and novel reading of the 11th amendment.
  The Court's decision today is at peace with those rulings. 
Fundamentally, this decision is about power. Who has the power, the 
Court or the Congress, to determine whether or not a local activity, 
such as gender-motivated violence, has a substantial impact on 
interstate commerce? Yesterday the Court said it: The Court has this 
power--echoes of 1920 and 1925 and 1928 and 1930, the so-called Lockner 
era.
  I find it particularly striking the Court acknowledged in Morrison 
that in contrast to the lack of congressional findings supporting the 
law struck down in Lopez, the civil rights remedy is supported by 
numerous findings regarding the serious impact of gender-motivated 
violence on interstate commerce. I conducted 4 years of hearings to 
make that record.
  We showed overwhelmingly that the loss of dollars to the economy of 
women being battered and abused and losing work is billions of dollars. 
We showed overwhelmingly that women make decisions about whether to 
engage in a business that requires them to cross State lines based in 
significant part upon the degree to which they think they can be safe, 
based upon a survey of 50 State laws, and whether or not they 
adequately protect women as they do men against violence.
  The record is overwhelming. Nonetheless, instead of applying the rule 
they had traditionally applied in determining whether Congress has the 
right to be involved in what is a local matter, they came up with a new 
standard.
  Instead of applying the old standard of: Is there a rational basis 
for Congress to find, as they did, the traditional ``rational basis 
review'' to decide whether Congress' findings in this case were 
rational--and I cannot conceive of how they concluded they could not 
be--the Court simply disagreed with the findings, marking the first 
occasion in more than 60 years that the Court has rejected explicit 
factual findings by the Congress, supported by a voluminous record. 
They, in fact, explicitly rejected the findings that a given activity 
substantially affects interstate commerce.
  The Court justified the abandonment of the deference to Congress by 
declaring that whether particular activities sufficiently affect 
interstate commerce ``is ultimately a judicial rather than a 
legislative question.''
  I could not disagree more fundamentally with the Court's ruling. 
Quite frankly, this will affect the Violence Against Women Act less 
than it is going to affect a whole lot of other things. The Supreme 
Court precedents have long recognized that Congress has the power to 
legislate with regard to local activities that, in the aggregate, have 
a substantial impact on interstate commerce.
  I personally believe Justice Souter, who wrote the principal dissent 
in this case, had it right when he explained that:

       [t]he fact of such a substantial effect is not an issue for 
     the courts in the first instance, but for the Congress, whose 
     institutional capacity for gathering evidence and taking 
     testimony far exceeds ours.

  I am left wondering, where does the Court's decision leave Congress' 
formerly plenary power to remove serious obstructions to interstate 
commerce, whatever their source?
  It is reminiscent of the Lockner era when they said, by the way, you 
have those labor standards having to do with mining--mining is not 
interstate commerce. Then they came along and said production is not 
interstate commerce. Then they said manufacturing is not interstate 
commerce. Until midway in the New Deal, with the end of the Lockner 
era, they said: Woe, woe, woe; wait a minute, wait a minute.
  Unfortunately, this decision yesterday reads more as a decision 
written in 1930 than in the year 2000.
  As Justice Souter documented so well in his dissent, the Court 
appears to be returning to a type of categorical analysis of Congress' 
power under the Commerce Clause that characterized the pre-New Deal 
era, where, as I said, manufacturing, mining, and production were all 
held to be off limits despite their obvious impact on interstate 
commerce. Now it is a new standard: ``Economic activity'' versus 
``noneconomic activity.''
  If Congress can regulate activity with substantial effects on 
interstate commerce, then I, as Justices Souter and Breyer, do not 
understand what difference it makes whether the causes of those 
substantial effects on interstate commerce are in and of themselves 
commercial.
  In any event, suffice it to say that this type of formalistic, 
enclave analysis--where certain spheres of activity are held off limits 
to Congress--did not work in the 1930s and will work no better in the 
21st century.
  Because it is impossible to develop judicially defined subject matter 
categories spelling out in advance what is in Congress' Commerce Clause 
power and what is out, I believe the dissenting Justices are correct 
that Congress, not the courts, must remain primarily responsible for 
striking the right Federal-State balance, and that the Members of 
Congress are institutionally motivated to strike that balance by virtue 
of the fact that we represent our States and local interests as well as 
the Federal interest.
  So why has the Court revived the form of analysis that so ill-served 
the Nation in the years leading up to the judicial crisis of 1937? 
Again, I find Justice Souter's explanation convincing: In both eras, 
the Court adopted these formalistic distinctions in interpreting the 
Commerce Clause in service of broader political theories shared by a 
majority of the Court's members.
  In the pre-New Deal era, that broader political theory was laissez 
faire economics; now it is the new federalism. In both instances, the 
Court has been eager to substitute its own judgment for that of the 
political branches democratically elected by the people to do their 
business.
  Those of you who are conservatives in this Congress, who say that 
you, in fact, want the democratically elected bodies making these 
decisions, I suggest to you that this is one of the most activist 
Courts we have had in 50 years. It is supplanting its judgment for the 
democratically elected branches of the Government.
  So have at it, conservatives. This judicially active Court is 
supplanting their judgment for the democratically elected bodies.
  Justice Stevens put it bluntly in his recent dissent in the recent 
age discrimination case. He said: The Court's federalism decisions 
constitute a ``judicial activism''--that is his quote, not mine--that 
is ``such a radical departure from the proper role of this Court that 
it should be opposed whenever an opportunity arises.''
  This is one Senator who plans to keep up that opposition.
  Stay tuned, folks, because what this upcoming election is about is 
the future--the future--of the power of the elected branches of the 
Government versus the Court which is appointed for life. This is a 
conservative agenda that is being forced upon the democratically 
elected bodies, as it was in the 1920s. The next President is going to 
get to pick somewhere between one and three new Justices.
  Mr. President, I ask unanimous consent that a speech I made on the 
Supreme Court and its changing direction be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

 Remarks By Joseph R. Biden, Jr., to the New Hampshire Supreme Court, 
                           Septmeber 17, 1999

       Today marks the anniversary of an extraordinary event, the 
     212th anniversary of the birth of the Constitution of the 
     United States. On September 17, 1787, the Constitutional 
     Convention, its work complete, rose

[[Page 8042]]

     and submitted the Constitution to the thirteen states for 
     ratification. Bringing together thirteen different states 
     with diverse cultures and established governments--some of 
     these harking back a hundred years--did not come easy. In 
     1775, at the time of the Continental Congress, John Adams, 
     writing to his wife, Abigail, described: ``[f]ifty gentlemen 
     meeting together all strangers . . . not acquainted with each 
     other's language, ideas, views, designs. They are therefore 
     jealous of each other--fearful, timid, skittish.''
       The men who attended that Constitutional Convention knew, 
     even then, that they had begun the greatest political 
     experiment in human history, producing a document that would 
     become an engine of change throughout the world. According to 
     James Madison's account, Governor Morris of Pennsylvania 
     stated that:
       He came here as a Representative of America; he flattered 
     himself he came here in some degree as a Representative of 
     the whole human race; for the whole human race will be 
     affected by the proceedings of this Convention.
       ``This Country,'' Governor Morris continued, must be 
     united. If persuasion does not unite it, the sword will. . . 
     . The scenes of horror attending civil commotion can not be 
     described. . . . The stronger party will then make [traitors] 
     of the weaker; and the Gallows & Halter will finish the work 
     of the sword.
       The Framers, in their vision and wisdom, did unite the 
     country, fashioning a government that was both federal--that 
     is, comprised of sovereign states--and, at the same time, 
     truly national in power. The Framers respected and sustained 
     the essential role of the states. But, at the same time, the 
     Framers made national law supreme, a principle enshrined in 
     the Supremacy Clause of the Constitution, and created a 
     government empowered to bind both the states and individuals, 
     powers denied the government under the Articles of 
     Confederation.
       The Constitution also established a vigorous and 
     independent presidency--what Alexander Hamilton in the 
     Federalist Papers called ``energy in the executive''--by 
     freeing the Chief Executive from selection by the legislature 
     and granting the President real and meaningful powers. As 
     early as McCulloch v. Maryland, Chief Justice John Marshall 
     in 1819 recognized the ``great powers'' the national 
     government possessed:
       to lay and collect taxes; to borrow money; to regulate 
     commerce; to declare and conduct a war; and to raise and 
     support armies and navies. The sword and the purse, all the 
     external relations, and no inconsiderable portion of the 
     industry of the nation, are entrusted to its government.
       And, on this 212th anniversary of the crafting of the 
     Constitution--a day and age now marked by national malaise 
     about and distrust of our government and its institutions--it 
     is only fitting to reflect on how right Governor Morris was 
     about how the Framers' creation has transformed--and 
     transfixed --the human race. Under this Constitution, we 
     settled a vast continent--from the Atlantic to the Pacific 
     coasts; we mobilized millions of men to unite the nation and 
     end slavery, fulfilling the promise of the Constitution; we 
     ascended, like the mythical phoenix, from the ashes of the 
     Great Depression; we turned back despotism and preserved a 
     free Europe in two World Wars; we won the Cold War; and we 
     now enjoy economic and military power unrivaled across the 
     globe and unmatched in the history of the world. No small 
     achievements, these.
       These achievements make us the envy of the world. Just last 
     week, I returned from a trip to six European countries, 
     including Kosovo, and I met with six Presidents. The 
     President of Bulgaria said to me:
       I know of no other country that has risked the lives of its 
     young men and women and would spend $15 billion dollars on 
     behalf of a place in which it has no economic interest, no 
     strategic interest, and no territorial interest--only an 
     interest in defending human rights.
       Could we have achieved these successes without vigorous 
     presidential leadership? We owe our position in the world to 
     the choices made by the Framers at the Constitutional 
     Convention. Imagine accomplishing what we have in the two 
     centuries of our brief history without a strong federal 
     government and a strong president.
       More than our achievements, though, it is our public 
     institutions that other nations seek to imitate. In every 
     place I traveled around the world last month, every one of 
     those six foreign Presidents talked about how they wanted to 
     mimic American governmental institutions--our Congress, our 
     President, our courts. They do not talk about our resources; 
     they do not talk about the American people themselves; they 
     talk about our institutions. It is these public 
     institutions--not a common ethnicity or religion, which, of 
     course, we do not share--that acts as the glue that binds 
     this country together.
       But although other nations clamor to model their 
     institutions after ours, our own public discourse reflects a 
     deep and abiding angst about and suspicion of our government. 
     Last November, only 38 percent of Americans voted, a 50-year 
     low that ranks the United States at or near the bottom of the 
     world's democracies in voter participation. As of 1995, voter 
     turnout in 14 European countries, by contrast, was above 70 
     percent.
       And take Washington Post reporter Bob Woodward's recent 
     book, Shadow: Five Presidents and the Legacy of Watergate, 
     which New York Times columnist Frank Rich recently nicknamed 
     ``All the Presidents Stink.'' Woodward's book puts between 
     two covers a cynicism about government that you can purchase 
     for fifty cents by picking up a daily newspaper, and for less 
     than that by turning on your television. A style of attack 
     and scandal journalism toward public officials dominates the 
     news media--and studies by Kathleen Hall Jamieson, Dean of 
     the Annenburg School of Communication and her colleague 
     Joseph Cappella, have shown that cynical coverage breeds 
     cynical voter reactions.
       It produces the kinds of expectations what were well 
     captured by Marvin Lucas, a 59-year-old custodial supervisor 
     at a college in Milledgeville, Georgia. Responding to a 
     Washington Post-Kaiser Foundation interviewer, Mr. Lucas said 
     ``I compare politicians with used car salesmen: say one 
     thing, do another.''
       And the ``other thing'' that politicians do, of course, is 
     to feather their own nests and the nests of special interest 
     groups that support their reelection campaigns. That is the 
     dominant opinion people have of American elected officials. 
     If that is your starting point, it is no wonder that in 1994, 
     56 percent of Americans thought that government did more to 
     hinder their family's achieving the American dream than to 
     help them achieve it, while only 31 percent thought that 
     government helped them. (The numbers had improved by 1997, 
     but were still negative--47 percent to 38 percent).
       Heaven knows that politicians are far from perfect, and our 
     own missteps and, yes, deceptions, contribute to the 
     country's cynical attitude. Some historians trace the 
     contemporary decline in faith in government to Lyndon 
     Johnson's 1964 Presidential campaign, where he pledged that 
     ``no American boy will fight a foreign war on a foreign soil 
     if I'm elected President.'' Within a year of that statement, 
     Johnson had ordered massive increases in draft calls and the 
     military build-up for the Vietnam War. Then Watergate cut 
     right to the heart of our faith in elected officials.
       And today, highly negative campaigning has become an art 
     form, as each candidate tries to tag his opponent with being 
     an insider, or else being a corrupt person who just hasn't 
     had the chance to be corrupt on the inside yet. When Majority 
     Leader George Mitchell was retiring from the Senate, he 
     remarked to Jim Lehrer on the News Hour that so long as 
     campaigns consist of one candidate calling his opponent a 
     crook and the other calling his opponent a scoundrel, is it 
     any wonder that Americans believe that Congress is filled 
     with crooks and scoundrels?
       So I don't want to understate the complexity of the sources 
     of contemporary cynicism and distrust toward elected 
     officials. What worries me, though, is that this cynicism and 
     distrust is way out of proportion to the actual 
     accomplishments of the federal government, and way out of 
     proportion to the sincerity and honesty with which my 
     colleagues conduct themselves every day in doing the 
     country's business.
       This public cynicism is not the only current raging in 
     American politics today, however. There is a movement among 
     intellectuals, historians, and political scientists to shift 
     the locus of political power, or to ``devolve power,'' from 
     the national government to the states. George Will, one of 
     the champions of this ``devolution of power'' movement, 
     explained its premise as follows:
       [I]t is unwholesome that Washington, like Caesar, has grown 
     so great. Power should flow back to where it came from and 
     belongs, back to the people and their state governments, back 
     to state capitals . . .
       This is nothing less than a fight for the heart and soul of 
     America. This is a fight about power. And it is a fight about 
     who will be left in charge.
       In my view, the value of devolution of power from the 
     national government to the states can be overstated. 
     Certainly the abuse of power, whenever it occurs, must be 
     checked. The federal government admittedly does tend to grab 
     power for itself without due regard for whether its goals can 
     better be achieved at the local level. But the state and 
     local governments, in contrast, tend toward parochialism 
     without due regard for the national interest. Thus, 
     devolution of power is not per se a good thing. At whatever 
     level of government, it all depends how that power is used.
       It cannot be that the Framers intended to hamstring the 
     federal government in favor of the states. If that was their 
     intent, why abandon the Articles of Confederation? And just 
     try to imagine the United States attaining its successes to 
     date without a strong national government and a vigorous 
     President. To go one step further--imagine how difficult it 
     will be to fortify our position in the world in the 21st 
     century without a powerful central government.
       The current cynicism about our public institutions, it 
     seems to me, is also beginning to gain a foothold in the 
     constitutional decisions of the Supreme Court, and that is 
     also

[[Page 8043]]

     of concern to me, and is something I would like to spend the 
     next few minutes discussing with you. Now first I want to say 
     that today's Supreme Court is the best-informed, hardest 
     working Court we have ever had. In particular, I want to 
     commend Justice Souter, a native son of this great state of 
     New Hampshire, for writing several of the most scholarly and 
     persuasive dissents this Court has seen in recent years--
     dissents that I am confident will prove prophetic.
       Yet the Supreme Court of today embodies both strands of the 
     phenomenon now plaguing our American culture--both the public 
     cynicism about, and the intellectual disdain for, our 
     national government. The Court is sharply critical of the 
     political branches of our federal government, accusing them 
     in case after case this decade of arrogating power to 
     themselves at the expense of state governments. But in 
     assuming the role of ``Chief Protector'' of the allocation of 
     power between the federal government and the states, the 
     Supreme Court of late has regrettably adopted a court-
     centered view of the scope of federal power. In doing so, it 
     has arrogated to itself a responsibility that more properly 
     befits the political branches.
       In my opinion, we have in the past eight years or so begun 
     to see a series of opinions in which the Supreme Court has 
     become bolder and bolder in stripping the federal government 
     of the ability to make decisions on behalf of the American 
     people. So far, the immediate effects of these decisions are 
     real, but relatively modest. They may represent marginal 
     readjustments in the allocation of power under the 
     Constitution. On the other hand, if I am right and the 
     jurisprudence is being driven by an oversized sense of 
     distrust and cynicism toward democratically elected 
     government--and especially toward the federal government--the 
     decisions could constitute the beginnings of a sea change 
     that could take us quite literally back to a style of 
     judicial imperialism unseen in this country since the early 
     1930s.
       The trio of cases decided by the Supreme Court at the very 
     end of the last Term are a prime example of this court-
     centered view of federal power. For example, in its 5-4 
     decision in Florida Prepaid Postsecondary Education Expense 
     Board v. College Savings Bank, the Court held that Congress 
     had no power to subject the states to private patent 
     infringement suits in federal court because in the Court's 
     view, the statute was not ``appropriate'' legislation to 
     enforce the Fourteenth Amendment. The Court said no to patent 
     infringement cases against state entities because the Court--
     not Congress--decided that legislation remedying patent 
     infringement by state entities was not really necessary. In 
     so deciding, the Court made a quintessentially legislative 
     judgment.
       To the same effect was the companion case, College Savings 
     Bank v. Florida Prepaid Postsecondary Education Expense 
     Board, in which the Court dismissed out of hand Congress' 
     effort to hold state entities accountable to private parties 
     for misrepresenting the states' commercial products in 
     violation of federal trademark law, because the Court decided 
     that the statute did not protect ``property rights'' within 
     the meaning of the Fourteenth Amendment.
       The two Florida Prepaid decisions unfortunately flow 
     directly from City of Boerne v. Flores, in which the Court in 
     1997 struck down the Religious Freedom Restoration Act as 
     also exceeding Congress' authority under section 5 of the 
     Fourteenth Amendment. In ruling that Congress had gone too 
     far in protecting religious liberty, the Court in essence 
     held that Congress had not done its homework to the Court's 
     satisfaction. The Court attacked the legislative record as 
     lacking what it considered to be sufficient modern instances 
     of religious bigotry and found that the statute was ``out of 
     proportion'' to its supposed remedial or preventive objects. 
     Again, the Court in effect decided that a law simply was not 
     really necessary.
       Implicit in the Court's obvious willingness in Boerne to 
     second-guess Congress' legislative judgment in the name of 
     protecting state governments is the notion that it is for the 
     Supreme Court, and not Congress, to specify the meaning of 
     the provisions of the Constitution, even when Congress claims 
     to enforce the individual liberties protected by the 
     Fourteenth Amendment.
       It is as if the Court has forgotten that the only 
     institution mentioned in section 5 of the Fourteenth 
     Amendment is Congress. The text of section 5 is clear and 
     simple: ``The Congress shall have power to enforce, by 
     appropriate legislation, the provisions of this article.'' It 
     was for Congress, not the courts, to be the primary guarantor 
     of individual rights as against oppression by state 
     authorities, and for Congress, not the courts, to assess 
     whether and what legislation is needed for that purpose. 
     Remember that the Fourteenth Amendment was adopted in the 
     long shadow of the Dred Scott decision. The court-centered 
     view the Court has since taken of that amendment is directly 
     at odds with the universal sentiment at the time of its 
     adoption that it was our federal legislature, not the courts, 
     that could best be trusted to police the states.
       What seems to lie at the heart of the headline-grabbing 
     cases of the past few terms is the Court's willingness to 
     disregard the views of Congress in favor of its own. It is as 
     if the Court believes that it has a better sense of the 
     economic and other real-world implications of the laws 
     Congress passes than do those elected by the people to serve 
     in that branch.
       The Court's recent decisions contain troubling echoes from 
     the New Deal era, when the Supreme Court was swift to 
     substitute its own judgment of what was desirable economic 
     legislation for that of Congress and the President. Here is 
     just one illustration from that bygone era: In Railroad 
     Retirement Board v. Alton Railroad Co., the Court in 1935 
     struck down the Railroad Retirement Act as unconstitutional, 
     in part because the Court concluded that it was not a valid 
     regulation of interstate commerce. Congress enacted the 
     statute, which established a compulsory retirement and 
     pension system for all railroad carriers, to promote 
     ``efficiency and safety in interstate transportation'' both 
     by reducing the aging population of employees and by 
     improving the employees' sense of security and morale. In its 
     opinion, the Court stated, however: ``We cannot agree that 
     these ends . . . encourage loyalty and continuity of 
     service.'' We cannot agree. That is a breathtaking statement 
     by a court which had abandoned its proper role. We cannot 
     agree?
       And in denying Congress what Justice Breyer in dissent has 
     called ``necessary legislative flexibility,'' such as to 
     create, for example, ``a decentralized system of individual 
     private remedies,'' the Court has returned to the kind of 
     court-centered conception of federal power that typified not 
     only the New Deal era, but the Lochner era as well. As 
     Justice Souter predicted in his Alden v. Maine dissent 
     lamenting the Court's sovereign immunity decisions:
       The resemblance of today's state sovereign immunity to the 
     Lochner era's industrial due process is striking. The Court 
     began this century by imputing immutable constitutional 
     status to a conception of economic self-reliance that was 
     never true to industrial life and grew insistently fictional 
     with the years, and the Court has chosen to close the century 
     by conferring like status on a conception of state sovereign 
     immunity that is true neither to history nor to the structure 
     of the Constitution. I expect the Court's latest essay into 
     immunity doctrine will prove the equal of its earlier 
     experiment in laissez-faire, the one being as unrealistic as 
     the other, as indefensible, and probably as fleeting.
       (Justice Souter, I sincerely hope that you are correct when 
     you said ``probably as fleeting'' because if you are wrong, 
     and the Court's pronouncements endure, then I am afraid that 
     the country is in bigger trouble than I thought.)
       Don't misunderstand me. I do not mean for a second to 
     disparage the role of the states. The states play a critical 
     part in warding off tyranny by the national government and in 
     performing all the fundamental functions with which the 
     governments closest to the people are charged. Certainly 
     those of you who live in this great state of New Hampshire--
     whose motto is ``Live Free or Die''--understand that better 
     than anyone else. As James Madison wrote in the Federalist 
     Papers:
       The powers reserved to the several States will extend to 
     all the objects which, in the ordinary course of affairs, 
     concern the lives, liberties, and properties of the people, 
     and the internal order, improvement, and prosperity of the 
     State.
       But we should think long and hard before allowing one 
     branch of our government--the federal judiciary--to cripple 
     its co-equal branches, the political branches, of government. 
     To do so is to put in jeopardy all that we have accomplished 
     in our brief history and all that we may do in the future.
       I must tell you that I am gravely concerned about the 
     direction the Court is headed. I have a particular stake in 
     this which I will confess now and that is the fate of the 
     civil rights remedy created by the Violence Against Women Act 
     of 1994, which I wrote. Earlier this year, the U.S. Court of 
     Appeals for the Fourth Circuit invalidated the civil rights 
     remedy in Brzonkala v. Virginia Polytechnic Institute & State 
     University, and the case may come before the Supreme Court in 
     the coming Term if the Court grants review.
       The civil rights remedy creates a new federal cause of 
     action allowing a victim of gender-motivated violence to sue 
     her attacker in court. I believe--indeed, I know--that 
     violence against women restricts the participation of women 
     in the national economy, inhibits their production and 
     consumption of goods and services in interstate commerce, and 
     obstructs their ability to work and travel freely. In short, 
     violence against women was, and is, a national problem of 
     epic proportions that substantially and adversely affects 
     interstate commerce. A massive legislative record compiled 
     after four years of fact-finding hearings in Congress 
     irrefutably confirms the impact of violence against women on 
     the national economy and interstate commerce.
       When we enacted the Violence Against Women Act civil rights 
     remedy in 1994, the Senate Judiciary Committee explicitly 
     found that the provision satisfied the ``modest threshold'' 
     required by the Commerce Clause, and we in Congress were 
     confident of the statute's constitutionality. The civil 
     rights remedy quite appropriately attempted

[[Page 8044]]

     to remove an obstruction to interstate commerce, much as the 
     Civil Rights Act of 1964 barred race discrimination in hotels 
     and restaurants because such discrimination, as the Court put 
     it in upholding the statute, ``imposed `an artificial 
     restriction on the market.' ''
       But less than a year after we enacted the Violence Against 
     Women Act and its civil rights remedy, the Supreme Court 
     decided United States v. Lopez and invalidated, as beyond 
     Congress' Commerce Clause authority, the Gun-Free School 
     Zones Act, which prohibited the possession of a firearm 
     within 1000 feet of a school. In the wake of Lopez, I find 
     myself asking: Will this Court accept the congressional 
     judgment that violence against women adversely affects the 
     national economy? Or will this Court second-guess the remedy 
     we chose to address that effect?
       Ironically, the Court may find itself the champion of 
     states' rights that the states do not even want. Just as with 
     the Patent Remedy Act, where no state testified in favor of 
     immunity from private patent infringement actions, the vast 
     majority of states strongly favor the Violence Against Women 
     Act civil rights remedy. Forty-one state attorneys general 
     wrote to Congress in favor of the statute, including the 
     civil rights remedy, before its enactment. Only a few weeks 
     ago, 33 Attorneys General submitted an amicus brief to the 
     Supreme Court asking the Court to grant the petition for 
     certiorari and uphold the statute because the states ``agree 
     with Congress that gender-based violence substantially 
     affects interstate commerce and the States cannot address 
     this problem adequately by themselves.''
       I also fear that the Supreme Court's readiness to disregard 
     the people's judgment has served as a clarion call to the 
     federal courts to usher in what Judge Douglas Ginsburg of the 
     U.S. Court of Appeals for the D.C. Circuit has called the 
     ``Constitution in Exile.'' According to Judge Ginsburg, the 
     doctrine of enumerated powers, the nondelegation doctrine, 
     the Necessary and Proper, Contracts, Takings, and Commerce 
     clauses, had become ``ancient exiles, banished for standing 
     in opposition to unlimited government.''
       In service of this ``Constitution-in-Exile,'' the lower 
     courts have begun to read the Constitution in a revolutionary 
     way. Thus, a district court in Alabama decided, remarkably, 
     that the Superfund amendments were unconstitutional because 
     they did not regulate interstate commerce, a decision later 
     reversed on appeal. Similarly, the Fourth Circuit's ruling 
     striking down the civil rights remedy of the Violence Against 
     Women Act transforms Lopez v. United States from an important 
     reminder that Congress' commerce power is not without limits, 
     into what is arguably the most momentous decision of the last 
     fifty years regarding the scope of federal power.
       That same court of appeals has tightened the noose in yet 
     another way. The Fourth Circuit ruled last year in Condon v. 
     Reno, a case now under review by the Supreme Court, that 
     Congress may not pass a law when that law applies only to the 
     states, and not also to private individuals. In other words, 
     Congress may not require the states to comply with federal 
     law if the law does not also affect private individuals.
       The jury is still out on whether the Supreme Court will let 
     the other shoe drop and sustain these additional restrictions 
     on federal power, but the Court seems primed and poised to do 
     so. Much hangs in the balance. If your eyes glaze over when I 
     speak about Congress authorizing private actions for patent 
     infringement or trademark violations by state entities, then 
     think about the Fair Labor Standards Act, which the Court 
     held last June in Alden v. Maine could not be enforced 
     against noncompliant states by state employees seeking 
     backpay. How far we have come from the Framers' vision of a 
     federal government strong enough and flexible enough to do 
     the people's business. As Justice Souter observed in his 
     dissent in Alden v. Maine:
       Had the question been posed, state sovereign immunity could 
     not have been thought to shield a State from suit under 
     federal law on a subject committed to national jurisdiction 
     by Article I of the Constitution.
       Other cases could potentially serve as a resounding wake-up 
     call as to the extent to which the federal government's hands 
     have been tied in addressing problems of national import. In 
     the coming Term, the Court will take up the question whether 
     the Congress had the power in the Age Discrimination in 
     Employment Act to authorize private law suits against state 
     violators. A case raising a similar issue with respect to the 
     Americans with Disabilities Act is sure to follow. And if the 
     Court says no, private individuals who suffer age, 
     disability, and other forms of discrimination at the hands of 
     state actors will have few means at their disposal to enforce 
     their rights under federal law, and the federal government 
     will rarely be able to help them.
       The Court left open the possibility that the federal 
     government could sue noncompliant states, but if you think 
     that it is realistic for the federal government to come to 
     the rescue by going into court on a regular basis to 
     vindicate the federal rights of private individuals, think 
     again. I do not see a massive expansion of the federal 
     litigating corps happening any time soon. Nor do I see how 
     that could be anything but self-defeating if the goal is to 
     minimize the federal intrusion into state government affairs. 
     By elevating the states' sovereign immunity to an immutable 
     principle of constitutional law, the Court, as Justice Breyer 
     recognized in his College Savings Bank dissent: ``makes it 
     more difficult for Congress to decentralize governmental 
     decisionmaking and to provide individual citizens, or local 
     communities, with a variety of enforcement powers. By 
     diminishing congressional flexibility to do so, the Court 
     makes it somewhat more difficult to satisfy modern 
     federalism's more important liberty-protecting needs. In this 
     sense, it is counterproductive.''
       Now don't get me wrong. Sometimes the federal and state 
     governments do not get their relationship quite right. We do 
     not have infallible institutions. But when the Supreme Court 
     restricts the flexibility of Congress to decide how best to 
     address national problems within the scope of its enumerated 
     powers, the Court truncates the learning process otherwise 
     underway in our political institutions--a result a 
     conservative court--conservative with a small ``c''--should 
     hesitate to effect.
       The Court has imposed by fiat limitations on the exercise 
     of federal power that might very well have come about without 
     the Court's interference. In other words, the Court in Garcia 
     v. San Antonio Metropolitan Transit Authority got it right 
     when, in 1985, it overruled National League of Cities v. 
     Usery, a case decided a decade earlier, that had restricted 
     the federal government's power to regulate the states ``in 
     areas of traditional governmental functions.'' Instead, the 
     Court announced in Garcia that the political process, not the 
     Court, should serve as the principal check on federal 
     overreaching. I must disagree with the notion that leaving it 
     to Congress and the President is like leaving the fox to 
     guard the chicken coop, or as Justice O'Connor put it in her 
     dissent in Garcia, like leaving the ``essentials of state 
     sovereignty'' to Congress' ``underdeveloped capacity for 
     self-restraint.''
       The Violence Against Women Act civil rights remedy is a 
     good example of Congress' developing capacity for self-
     restraint. At the outset, those most concerned about domestic 
     violence and rape wanted a statute with a broad sweep, and so 
     we started out by introducing a provision in 1990 that 
     arguably would have federalized a significant portion of 
     state laws against domestic violence and rape. But the 
     Conference of Chief Justices of State Supreme Courts, the 
     Judicial Conference of the United States--and Chief Justice 
     Rehnquist, in particular--pointed out to Congress, while the 
     bill was under consideration, that the civil rights provision 
     might significantly interfere with the states' handling of 
     domestic relations and rape cases, while at the same time, 
     overburdening the federal courts. The federal and state 
     judiciaries raised the concern, we examined it, and we 
     decided that they were right. Congress then carefully 
     redrafted the civil rights remedy so that it would not have 
     that effect.
       There are other recent examples--such as the Unfunded 
     Mandates Act--that came about because the states complained 
     to Congress that we were forcing them to use their tax 
     dollars to do whatever we mandated in Washington. The states 
     staged a mini-rebellion. So Congress wrote a new law 
     requiring federal restraint. And for that, I must give my 
     Republican colleagues their due.
       But when the Supreme Court plays traffic cop on the streets 
     of federalism, the Court does our country a disservice by 
     cutting this national political dialogue short. We are 
     already reaching many of the conclusions the Court has now 
     cemented into the Constitution. James Madison wrote in the 
     Federalist Papers that the new federal government would be 
     sufficiently national and local in spirit as ``to be 
     disinclined to invade the rights of the individual States, or 
     the prerogatives of their governments.'' Our political 
     institutions can be trusted. The Framers understood this.
       In short, the disconnect between our public and cultural 
     perceptions of our institutions and reality is stunning. Keep 
     in mind that the rest of the world is struggling to emulate 
     our institutions because they believe it is our institutions 
     that separate us from other nations--indeed, from other 
     democracies--and are the bedrock upon which our successes are 
     founded.
       Yet our public discourse, our legal opinions, our very 
     culture, are compelling us to overlook or scorn our own 
     accomplishments. We are losing, as a nation, the communal 
     notion that our strength lies in our institutions. 
     Relentlessly accentuating the negative when it comes to our 
     political institutions, however, eclipses our considerable 
     successes. And this predilection to distrust the political 
     branches now seems to be shared equally by the judicial 
     branch, not only when it comes time to decide how to 
     distribute power between the federal government and the 
     states, but also when it comes to making a judgment of what 
     is in the best interests of Americans.
       I talked to you tonight about cynicism, devolution of 
     power, and how we got here. In my view, all of that can be 
     overcome by the right leadership, the right people in power,

[[Page 8045]]

     who will recharge the public's imagination and confidence. 
     The public mood can be transformed in an election, a single 
     cycle. Maybe it will take a generation. But it can be 
     changed. Elected officials who cater too much or too little 
     to state interests can be voted out of office. But if the 
     Supreme Court chisels into stone new constitutional 
     restrictions on federal power, new hoops through which 
     Congress must leap, where will we be then? You cannot go to 
     the polls to undo a constitutional ruling of the Supreme 
     Court. There is no further appeal--no appeal to a higher 
     court, no appeal to the voters. Nothing short of a new 
     constitutional convention or an amendment to the 
     Constitution--and you know how easy that is--or will do. 
     James Madison was right: trust the political process. ``WE 
     CANNOT AGREE''? Please.
       Let me conclude by making the following simple point: if, 
     at the federal level, we are such a failure institutionally, 
     why does the rest of the world look to us to copy our 
     supposed frailties? If we are such a failure--with our last 
     six Presidents supposedly flops--how is that our incomes are 
     actually growing, crime is going down, drug use is down, and 
     our economy is in better shape than that of any nation in the 
     history of the world? How did we produce a nation willing and 
     able, as the President of Bulgaria pointed out, to spend 
     billions of dollars and risk the lives of its men and women 
     to advance the cause of human rights? Did it happen by 
     chance? Did it happen by accident? It happened as a direct 
     result of our unique political institutions.
       The Framers set out to create a centralized government 
     robust enough to deal with national problems, but with built-
     in guarantees that it be respectful of, and sensitive to, 
     local concerns. There is an inherent tension in the document. 
     But look at the sweep of history: as the balance of power has 
     shifted back and forth between the national government and 
     the states, our resilient political branches have adjusted 
     and responded. The rest of the world gets it.
       We must remember that politics--and politicians--are not 
     the enemy. The Constitutional Convention was composed of men 
     who were regarded as gifted even in their own day. As the 
     French charge d'affaires wrote to his government as the 
     Convention convened:
       If all the delegates named for this Convention at 
     Philadelphia are present, we will never have seen, even in 
     Europe, an assembly more respectable for the talents, 
     knowledge, disinterestedness, and patriotism of those who 
     compose it.
       Above all else, these men were politicians. And I am not 
     suggesting by this that our government today boasts the likes 
     of a Jefferson or a Madison, but I am suggesting that we have 
     fine and decent men and women with significant capabilities 
     who choose public service. And some of you are among them.
       The hostility we see from the Supreme Court toward the 
     elected branches of government is the same suspicion we see 
     in the eyes of the ordinary person on the street. 
     ``Politics'' has become a dirty word. But as those of you 
     here who live in this state of strong local community 
     governments and town hall meetings, know better than anyone, 
     ``politics'' is fundamental to how we govern ourselves in a 
     democracy. At the end of the day, politics is the only way a 
     community can govern itself and realize its goals without the 
     sword.
       So I stand before you today, on this 212th anniversary of 
     the completion of the work of the Constitutional Convention, 
     ready and willing to defend politics--even national politics. 
     It was what those 50 gentlemen, all strangers, who met 212 
     years ago defended and vindicated. And it is what, in the 
     end, has made and will continue to make us secure and strong.

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