The Supreme Court and Congress are on a collision course. Three times in the final week of its term, the high court struck down laws passed by overwhelming congressional majorities, championed by the president, and defended by the Justice Department. This is historically unprecedented. Even during the last great confrontation between the branches in the 1930s, anti- New Deal justices never overturned so many federal statutes in so short a time.
Judicial resistance to popular rule through Congress is most starkly displayed in City of Boerne v. Flores, in which the court overturned the Religious Freedom Restoration Act (RFRA). Justices Kennedy, Stevens, and Ginsburg joined hands with Justices Scalia and Thomas and Chief Justice Rehnquist in the 6-3 ruling, which insisted that the court, not Congress, has “the final word” in interpreting the Constitution. Congress passed RFRA in 1993 at the behest of a large coalition of religious groups unhappy with a 1990 Supreme Court decision, Employment Division v. Smith. The court had sided in that case with the state of Oregon, which denied unemployment benefits to workers fired for using the hallucinogenic drug peyote. Because the workers used the drug for religious purposes, they claimed the state had violated their First Amendment right to freely exercise their religion. Both mainline and fringe religious groups worried that Smith would pave the way for local and state governments to violate their free-exercise rights, so they called on Congress for relief.
The oral arguments in Boerne made plain that the Supreme Court saw the case as a showdown with Congress. Anxious justices pressed the lawyers: Did lawmakers pass RFRA to express disagreement with Smith? And as hard as the justices pressed, the lawyers defending RFRA tried to reassure them that Congress wouldn’t think of reversing the Supreme Court:
Q [from the court]: Now, you admit, I suppose, that Congress cannot come in and overrule a decision of this Court it doesn’t like by legislation. . . .
Counsel: Congress cannot overrule the Court.
Q: And there’s some indication that this was what Congress was all about here. . . . If Smith were to come up again, I guess [RFRA] would be an effort by Congress to overturn that decision. . . .
Counsel: Overturn is shorthand, but yes, to achieve a different result on similar facts under the statute than we would achieve under the Constitution itself, that’s correct, but that’s no different from the Voting Rights Act or from Title VII. . . . You still get the final word on what the statute means.
The lawyers defending RFRA were of course in no position to meet this line of questioning with its proper response: Why shouldn’t Congress try to correct or reverse the court? Congress is a co-equal branch of government, equally entitled to interpret the Constitution that governs all three branches. The Religious Freedom Restoration Act may not have been a wise response to a particular judicial decision. But the power Congress used to enact it is legitimate. Lawmakers employed their infrequently used authority to “enforce” the Fourteenth Amendment.
The Fourteenth Amendment’s enforcement power unnerves judges, because, as RFRA shows, it can be invoked to challenge their decisions. And it has always unnerved judges. In overturning RFRA, the justices barked back to their 19th- century brethren on the high court who gutted Congress’s enforcement power, overturning the national civil-rights statutes of Reconstruction, such as the 1871 Ku Klux Klan Act and the 1875 Civil Rights Act. (With no embarrassment, Justice Kennedy’s opinion for the court in Boerne cited those long discredited decisions as precedents.) The modern civil-rights revolution restored Congress’s enforcement power, and since the 1960s the court has sanctioned measures that depend on that power, including the Voting Rights Acts of 1965. With one insignificant exception, until the court’s actions last month, every law enacted in this century under the Fourteenth Amendment’s enforcement provisions has been upheld.
Congress’s enforcement power also makes some conservatives uncomfortable because of its potential to expand the power of Washington. RFRA, which limited the powers of state governments, was controversial for that very reason. But there are other ways in which Congress can use its Fourteenth Amendment powers. In fact, it can reassert its right to these powers and at the same time resurrect federalism and popular self-government at the state and local levels against a nationalizing Supreme Court. And in the wake of Boerne, it should do so. Lawmakers can begin with a simple, unobjectionable proposal: legislation returning to the states the right to display the Ten Commandments on government-owned property.
In 1980 the Supreme Court found unconstitutional a Kentucky law requiring that the Ten Commandments be displayed in public schools. What’s the harm? ” If the posted copies of the Ten Commandments are to have any effect at all,” said the court, “it will be to induce the school children to read, meditate upon, perhaps to venerate and obey, the Commandments.” Many would applaud such an effect, but the justices saw it as a threat to the freedom of impressionable youth. No matter how desirable the Words of God might be as “a private devotion,” the First Amendment doesn’t allow them on government property, they maintained.
This anti-Ten Commandments policy returned to the news recently when Alabama judge Roy Moore posted the Commandments in his courtroom. Federal circuit judge Charles Price pronounced “Thou shalt not” and issued a restraining order. The dispute remains in the federal courts.
Meanwhile, on March 5, the House of Representatives passed a resolution 295- 125 stating that it was the sense of the House that the Ten Commandments “set forth a code of moral conduct, observance of which is universally acknowledged to promote respect for our system of laws and the good of society.” The House resolution suggests there is a consensus across religious faiths that the Commandments should be publicly respected as the foundation of our constitutional principles. Two South Carolina counties have since enacted resolutions to post the Ten Commandments in their council rooms, and Congress is considering similar proposals for the Senate and House chambers.
Congress should not be deterred by the Boerne decision from moving beyond the expression of sentiments to actual legislation. It should legislate to enforce the people’s right to recognize the Commandments in public. Yet, ironically, under a Constitution established to free man from oppression disguised as religion, many tremble before the high court as if it were a high priesthood. Civil libertarians who would never think of obeying ex cathedra decrees from Rome unhesitatingly declare there is no appealing a decision of the Supreme Court.
Both history and proper constitutional understanding teach a quite different lesson. It’s true that the Constitution endows the three co-equal branches of government with different functions. Congress’s responsibility is to enact laws; the president approves and enforces the laws made by Congress; the Supreme Court decides “cases” according to the laws made by Congress. But the Constitution does not grant any single branch power to interpret it in a way that the others must accept. On the contrary: Congress itself interprets the Constitution each time it passes a law, just as the chief executive does when he signs and administers those laws, and the justices do in each case they decide.
Since 1787 the Supreme Court has found some 139 national laws unconstitutional. Most of these judgments were of no great political moment. So Congress avoided provocation and did nothing. Occasionally, though, the lawmakers have challenged the court and have made the challenge stick. Here are a few examples:
P In Dred Scott v. Sandford (1857), the Supreme Court declared that Congress could not ban slavery in U.S. territories. As president, Lincoln asked Congress to overrule the court, and in 1862 (three years before the Thirteenth Amendment) he signed a statute abolishing slavery throughout the territories.
P After the court in 1918 overturned a federal child labor law, legislators responded by imposing an excise tax on the products of child labor. In 1922 the court rejected that measure as well. On a third try, Congress overrode both decisions by passing the Fair Labor Standards Act of 1938. In U.S. v. Darby (1941), the justices yielded and conceded Congress’s power to regulate.
P In 1959 the court ruled that the Fourteenth Amendment allowed states to require English literacy tests for voters. Congress, deciding the tests violated that amendment’s equal protection clause, used its enforcement power to ban them. In Katzenbach v. Morgan (1966), the court backed off and set aside its earlier ruling.
P The court in Goldman v. Weinberger (1986) upheld Air Force regulations prohibiting Orthodox Jews from wearing yarmulkes on duty. Congress enacted legislation overriding that holding and instructed the Air Force to permit the wearing of religious apparel in uniform.
Religious-liberty and other social-issue cases, of course, usually involve state, not federal, laws. Why are states and local communities controlled by restraints that apparently limit only the national government (“Congress shall make no law . . .”)? Since 1925 the Supreme Court has read the Fourteenth Amendment to mean that the “liberty” mentioned in the due process clause brings state governments under the Bill of Rights. In other words, when state laws regarding religion and other social issues are overturned, the courts always assert that they violate the Fourteenth Amendment, not just the Bill of Rights.
For more than 60 years the courts have hung on this fragile constitutional thread their most controversial decisions — relating to school prayer, rights of the accused, judge-imposed taxes, obscenity and pornography, censorship, abortion, school busing, public assistance to religious schools, homosexual rights, and voter-passed referenda. That single thread is the claim that the Fourteenth Amendment prevents citizens from enacting state and community laws to protect America’s culture and moral character.
The fragility of this theory as a judicial weapon became clear once Congress’s enforcement power was restored to pass the Voting Rights Act of 1965. Under the Fourteenth Amendment’s language, Congress has the same power to enforce not just equal-protection but due-process rights. That is the power the Supreme Court disputed in Boerne, but ultimately no one but Congress can say in what manner its power to enforce these rights should be used.
Indeed, by hanging its controversial decisions precisely on the Fourteenth Amendment, which includes a grant of authority to Congress, the Supreme Court invites Congress to intervene on the same terrain. And Congress should intervene, not to place new limits on states, but to restore self-government in states and local communities. The Ten Commandments issue is a perfect starter. Congress could pass a “federalism shield” law, declaring that the display of the Decalogue on state and local government-owned property is among the liberties protected under the Fourteenth Amendment’s due-process ” liberties.” The statute would explicitly recognize the reserved right of the people under the Tenth Amendment to govern themselves by declaring that the states may use their “police powers” to regulate these displays. This would restore the traditional right to acknowledge the Commandments in public life that people enjoyed until the Supreme Court abridged it in 1980.
Would Bill Clinton sign such a measure? It’s difficult to imagine him standing against a popular law to respect the Ten Commandments. The tougher question is whether the Supreme Court would sustain it. Of course the ink wouldn’t be dry before the ACLU hauled this law into court. Consider, however, what the modern Supreme Court has already said about Congress’s enforcement power:
P In 1966, the court in U.S. v. Price recognized that Congress’s enforcement power is so broad that it “embraces all of the rights and privileges secured to citizens by all of the Constitution and all of the laws of the United States.”
P In 1970 Justices Stewart and Blackmun and Chief Justice Burger swept earlier decisions aside in deference to Congress’s superior fact-finding ability. “Congress,” they wrote in Oregon v. Mitchell, “may paint with a much broader brush than may this Court, which must confine itself to the judicial function of deciding individual cases and controversies upon individual records. The findings that Congress made when it enacted the Voting Rights Act of 1965 would have supported a nationwide ban on literacy tests.”
P In the 1980 case of Fullilove v. Klutznick, Burger and Justices White and Powell said, “Correctly viewed, Sec. 5 [of the Fourteenth Amendment] is a positive grant of legislative power authorizing Congress to exercise its discretion in determining whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment.”
Some court-watchers argue that the justices will strike down any law that disputes their holdings, and the overturning of the Religious Freedom Restoration Act implies as much. But except during the 1930s, the justices have usually been less willing to make war on the national legislature than to cross swords with the states.
And there’s good reason for the court to be more wary of Congress than of state legislatures. The states, after all, can’t raise or reduce the number of justices on the court; Congress can. The states can’t change the court’s jurisdiction; Congress can. The states can’t make and unmake the federal court system; Congress can. The states can’t impeach federal judges; Congress can.
Conservative critics of the Supreme Court should neither despair at its decisions nor propose amendments that can only weaken people’s loyalty to our constitutional heritage. There is nothing wrong with our Constitution that time, patience, and political acumen can’t correct.
The way to win a showdown with the court is first to wage one. If Congress enacts a simple Ten Commandments bill and the high court voids it, Congress can respond by passing more far-reaching measures. “Federalism shield” laws speeding up state criminal trials or restoring “moment of silence” rights to public schools come to mind. The Supreme Court might need a little time to get the message before it acquiesces in the resurrection of self-government. But over time the nation’s elected legislature is inexorable — if it is willing to fight.
Dennis Teti is research director for the Tricentennial Foundation for America and adjunct professor of political science at Hillsdale College.
