92 Chapter 3Chapter 3 || Federa lismFedera lism“life, liberty, or property, without due process of law” or denying any person the “equal
protection of the laws,” and Section 5 empowers Congress “to enforce” those guaran-
tees by “appropriate legislation.” Throughout most of the twentieth century, the Court
interpreted Section 5 to give Congress broad discretion to pass legislation to remedy
bad state laws. For example, discriminatory application of literacy tests prevented
millions of African Americans from voting in the South before the Voting Rights Act
was passed in 1965.
As part of the federalism revolution of the 1990s, the Court started to chip away
at Congress’s Fourteenth Amendment powers. In one important case in 1997, the
Supreme Court struck down the Religious Freedom Restoration Act as an overly broad
attempt to curtail state-sponsored harassment based on religion. This case established
a new standard to justify remedial legislation—that is, national legislation that fixes
discriminatory state law—under Section 5, saying: “There must be a congruence
and proportionality between the injury to be prevented or remedied and the means
adopted to that end.”^17 In one application of the new standard for remedial legislation,
the Court ruled that the Age Discrimination in Employment Act of 1967 could not
be applied to state employees because it was not “appropriate legislation.”^18 Tw o
applications of this logic also applied to the Eleventh Amendment, which originally
was interpreted to mean that residents of any state could not sue other (non-home-state)
state governments. More recently, the Supreme Court has expanded the reach of the
Eleventh Amendment through the concept of states’ sovereign immunity. States are
now immune from a much broader range of lawsuits in state and federal court.The Commerce Clause Another category of cases that have been decided in favor of
more state power concerns the commerce clause of the Constitution. The first Court case
to limit Congress’s commerce powers since the New Deal of the 1930s came in 1995. The
case involved the Gun-Free School Zones Act of 1990, which Congress passed in response
to the increase in school shootings around the nation. The law made it a federal offense to
have a gun within 1,000 feet of a school. Congress assumed that it had the power to pass
this legislation, given the Court’s expansive interpretation of the commerce clause over
the previous 55 years, even though it concerned a traditional area of state power. Although
it was a stretch to claim that carrying a gun in or around a school was related to interstate
commerce, Congress might have been able to demonstrate the point by showing that
most guns are made in one state and sold in another (thus commercially crossing state
lines), that crime affects the economy and commerce, and that the quality of education,
which is also crucial to the economy, is harmed if students and teachers are worrying
about guns in their schools. However, members of Congress did not present this evidence
because they did not think it was necessary.
Alfonso Lopez, a senior at Edison High School in San Antonio, Texas, was arrested
for carrying a concealed .38-caliber handgun with five bullets in it, in violation of
the Gun-Free School Zone Act. Attorneys for Lopez moved to dismiss the charges,
arguing that the law was unconstitutional because carrying a gun in a school could not
be regulated as “interstate commerce.” The Court agreed in United States v. Lopez,^19
and the ruling was widely viewed as a warning shot over Congress’s bow. If Congress
wanted to encroach on the states’ turf in the future, it would have to demonstrate that
the law in question was a legitimate exercise of the commerce clause powers.
Congress learned its lesson. The next time it passed legislation that affected law
enforcement at the state level, it was careful to document the impact on interstate
commerce. The Violence Against Women Act was passed in 1994 with strong
bipartisan support after weeks of testimony and thousands of pages of evidence
were entered into the record showing the links between violence against women and
commerce. Despite the evidence Congress presented, the Supreme Court ruled thatremedial legislation
National laws that address
discriminatory state laws. Authority
for such legislation comes from
Section 5 of the Fourteenth
Amendment.states’ sovereign immunity
Based on the Eleventh Amendment,
immunity that prevents state
governments from being sued by
private parties in federal court unless
the state consents to the suit.The immense size and power of
the Government of the United
States ought not obscure
its fundamental character.
It remains a Government of
enumerated powers.—Justice Sandra Day O’ConnorFull_04_APT_64431_ch03_070-101.indd 92 16/11/18 1:30 PM