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88–475 PDF 2003

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

(

(II)

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

MARIA CANTWELL, Washington 

JOHN EDWARDS, North Carolina 

ORRIN G. HATCH, Utah 

STROM THURMOND, South Carolina 

CHARLES E. GRASSLEY, Iowa 

ARLEN SPECTER, Pennsylvania 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

SAM BROWNBACK, Kansas 

MITCH MCCONNELL, Kentucky 

BRUCE A. COHEN, Majority Chief Counsel and Staff Director 

SHARON PROST, Minority Chief Counsel 

MAKAN DELRAHIM, Minority Staff Director 

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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

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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 

2

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, 

3

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. 

4

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. 

5

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 

6

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. 

7

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 

8

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. 

9

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 

10

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 

11

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 apVerDate Mar 21 2002 14:03 Aug 04, 2003 Jkt 088475 PO 00000 Frm 00015 Fmt 6633 Sfmt 6633 C:\HEARINGS\88475.TXT SJUD4 PsN: CMORC
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proaches 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.] 

13

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? 

14

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. 

15

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. 

16

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 

17

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 

18

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. 

19

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 

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20

tions, 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. 

21

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. 

22

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.

23

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.

24

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 

25

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.

26

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.] 

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