Hastings Constitutional Law Quarterly


During the Rehnquist Court, America has witnessed accelerating federal judicial activism on behalf of States' rights, and a judicial branch that increasingly views itself as final arbiter of the proper allocation of power between the federal and State governments. Apologists for this trend identify it closely with perceived structural checks embedded in the Constitution, which are designed to ensure greater participatory access in self-governance. Despite this laudable goal, federalism-based precedents appear to conflict with civil rights legislation, such as the Americans With Disabilities Act and the Age Discrimination In Employment Act.

This article attempts to reconcile this apparent conflict by reference to the jurisprudence of Justice Brandeis, who embodied the simultaneous concern for States' and individual rights. This article begins by analyzing the Court's opinion in City of Boerne v. Flores and other decisions. It then examines the questions raised by lower court applications of City of Boerne to delimit congressional power to implement antidiscrimination legislation. In response to such decisions, this article situates City of Boerne squarely within existing separation of powers jurisprudence. Though federalism concerns clearly motivate the Court's decision in City of Boerne, they are not the centerpiece of the Court's decision. Rather, they constitute an important consideration for courts applying the test set forth in that decision. Turning more directly to the federalism concerns implicated by City of Boerne, this article concludes that such considerations necessarily give way to the more fundamental protections embodied in the challenged antidiscrimination laws.