McConnell comment on Boerne -Reply

[Jack Balkin]

Marci Hamilton writes:

>When it comes to constitutional interpretation, I prefer the Court's
>interpretation because the Court was purposely isolated from factional
>pressure.  The Court is in a much better position to take a long view,
>while
>Congress is in a better position to take the short view and to solve
>concrete
>social problems.  I think O'Connor's quote in New York v. U.S. about
>resisiting exigent but unconstitutional solutions to the problem of the day
>captures this point nicely.  With all due respect to the prevailing dogma,
>because Congress is not a majoritarian institution, the court is neither
>countermajoritarian nor counterdemocratic when it invalidates a statute.

      I disagree with Marci on one point here.  I think that the Court is much
more of a majoritarian institution than she thinks.  Printz and NY v. US
occur just as a tide of popular sentiment for shifting power back to the
states is also occuring.  So what the court does in these cases is "piling
on"-- adding constitutional requirements of federalism that might well
eventually be achieved through legislative action anyway.  If you think
that is fantasy, think how far we have travelled from the Nixon
Administration's consolidation of the welfare state to the 1996 Welfare
Reform Act.
     Boerne does not seem to me to be the preservation of individual
liberty or protection of the people from a power mad Congress.  These
are the traditional justifications for judicial interposition of the Court's
judicial power to protect the people.  RFRA appeared by all accounts to
be a relatively popular piece of legislation.  What Boerne appears to be is
the Court's preservation of its own role as the supreme arbiter of the
meaning of the Constitution.  It was, I think, a knee jerk reaction by a
Court too sensitive to politics and not, as Marci suggests, relatively
isolated from political pressure.  I think that the Court's opinon was an
overreaction due to the political climate of our times, particuarly given that
the Court accepted the  Pregnancy Discrimination Act with nary a
whimper.  I continue to remain convinced that RFRA would have been
upheld if it had been drafted with slightly different language that did not
track previous court decisions and if people had not gone on about
overruling Smith.  (Of course, RFRA did not overrule Smith; only the
Supreme Court can do that.  And I wish they would get around to it
quickly!)

Jack Balkin
Yale Law School