An Unwelcome Stranger - Congressional Individual Rights Power and Federalism

Two recent United States Supreme Court decisions concerning the availability of federal remedies against private organizations that obstruct access to abortion clinics present a striking paradox. In Bray v. Alexandria Women's Health Clinic, the Court held that 42 U.S.C. § 1985(3), which provides a civil remedy for conspiracies to deprive individuals of their constitutional rights because of their membership in a protected class, did not reach abortion blockades. Conversely, the Court held in NOW v. Scheidler that the Racketeer Influenced and Corrupt Organizations Act (RICO) applied to abortion blockades, notwithstanding the lack of an economic motive for an organization’s alleged pattern of illegal activity. The paradox is this: an individual rights statute does not apply to what is clearly an individual rights issue, while a statute whose purpose is to address illegal economic activity does. To be sure, the decisions rest on the Court’s interpretation of specific statutes, each with a language and history of its own). But interpretation is not an exact science, and the Justices’ reading of a statute inevitably reflects their underlying views about the legal environment in which it was enacted.Thus, the paradox of the Bray and NOW decisions illuminates the Court’s understanding of the nature and scope of federal power to protect individual rights. The narrow view of federal power that prevailed regarding most areas of federal substantive authority until the 1930s was abandoned in the wake of the New Deal, and modern constitutional jurisprudence places virtually no federalism-based limits on most forms of federal authority. The individual rights power, however, is subject to narrowing constructions that suggest the Court views it as somehow different from other areas of federal authority. In short, the Court tends to construe the federal individual rights power narrowly based on the unspoken assumption that the power is somehow incompatible with the basic premises of federalism: it was a necessary encroachment on state power in the wake of the Civil War, but ought not to be exercised unless absolutely essential and then only to the narrowest possible extent. This suggestion may seem strange, given the phenomenal expansion of federal constitutional rights that peaked under the Warren Court, but the assumption that individual rights are an inappropriate area for the exercise of federal power does influence the Court’s jurisprudence in significant, albeit subtle, ways. And although the assumption colors the Court’s analysis in various areas, it has seldom been expressly articulated, much less subjected to critical examination. This failure is unfortunate because the assumption is, quite simply, wrong.The Bray/NOW paradox presents an excellent occasion to examine the nature of congressional individual rights power more closely in order to understand its role in a federal system. I undertake such an examination in this essay, which argues that the exercise of federal authority in the field of individual rights is no less legitimate than in other areas of federal power, including interstate commerce. I begin with a detailed analysis of Bray and NOW, demonstrating that a comparatively narrow view of federal individual rights authority colors the Court’s resolution of the federalism issues presented in those cases - a conclusion that is also reflected in some other doctrinal areas. I then consider whether the assumption that federal individual rights authority is inconsistent with basic principles of federalism is justified as a matter of constitutional principle. This analysis produces three conclusions: (1) the assumption is not warranted by the language or history of the Reconstruction Amendments; (2) federal individual rights power is not fundamentally incompatible with the conception of federalism embodied in the original Constitution so as to justify reading the Reconstruction Amendments narrowly; and (3) functional considerations relating to the successful operation of a federal system justify federal individual rights authority.