The essential argument of Judge John T. Noonan’s book, Narrowing the Nation’s Power, is that in an effort to correct this supposed imbalance, those same conservative jurists have in recent years abandoned their commitment to a strict reading of the Constitution, embracing, under the tutelage of Chief Justice William Rehnquist, a specious view of states’ rights. Noonan rails against this devolution of power from Congress and toward the states (called, ironically, “federalism”), and the tactics that the five-member majority on the Supreme Court have employed to produce it. By declaring that the states are beyond the reach of many federal laws (granting them what lawyers call “sovereign immunity”), Noonan contends that the court has manipulated the Constitution “without justification,” risking “intolerable injury to the enforcement of federal standards . . . [and] danger to the exercise of democratic government.” The rise of sovereign immunity has set off a firestorm in federal courts around the country, as state officials push the limits of their newfound power. By capitalizing on recent rulings, the states have shielded themselves from congressional mandates on topics from civil rights to crime to fair labor standards.

Noonan’s critique of the Supreme Court’s approach isn’t exactly a new one. The tug of war between states’ rights and a strong central government is age-old, dating back to when Alexander Hamilton and Thomas Jefferson jousted over a proposed national bank, a federal militia, and forgiving state debt. But coming from a widely respected, and Reagan-appointed judge, Noonan’s critique carries a particularly powerful punch. A Harvard-educated law professor, Noonan was appointed to the 9th U.S. Circuit Court of Appeals in 1985. He is often considered one of the most thoughtful theorists on the bench, and has written extensively on religious freedom and Catholic moral doctrine.

In a candid analysis, Noonan asserts that the court’s approach to broadening sovereign immunity (and its own power) has been nothing short of “an invasion of the [Congress].” Until recently, the court had largely interpreted the 14th Amendment as allowing Congress to pass legislation that it believed was “appropriate” to prevent the states from infringing upon the rights of citizens. That all changed in its 1993 holding in City of Boerne v. Flores. In that case, which established a new era of federalism, a conservative majority declared that the court, rather than Congress, had the power to decide what was “appropriate.” Claiming Congress had overstepped its authority, the court struck down the Religious Freedom Restoration Act, which mandated that “government shall not substantially burden a person’s exercise of religion . . . except in furtherance of a compelling national interest.” Wielding its new authority, the court later struck down or narrowed congressional legislation on patents, age discrimination, and domestic violence.

Noonan also takes issue with the naked hypocrisy of the Rehnquist faction in abandoning its “literalist” interpretation of the Constitution: “It was once asserted by some members of the present court that decisions were wrong if they were unfaithful to the text of the Constitution or lacked fidelity to the original intent of the framers.” Now the court “has embraced with mistaken enthusiasm a doctrine of state immunity that is overextended, unjustified by history, and unworkable in any consistent way.”

Narrowing the Nation’s Power is no Grisham thriller. But, to his credit, Noonan succeeds in bringing life to what could otherwise have been a dreary exercise. In a strikingly fresh approach, he explains the doctrine of sovereign immunity by staging a dialogue among a cast of characters posing as judicial clerks for Samuel Simple, a fictional federal appellate judge. This Socratic approach helps the author distill complex concepts into discernable prose and maintain readers’ attention (even non-lawyers), as Noonan moves through arguments and cases that may seem arcane, but that threaten to take the nation down a perilous road. This past session, for example, the court continued its tear, issuing several opinions that further limit federal power. Most glaringly, in a 5-4 decision, the court ruled on a dispute between the Federal Maritime Commission, which enforces the Federal Shipping Act, and the state-owned port of Charleston, S.C. A cruise line had complained to the commission that the port had wrongfully denied a berth to one of its ships, but the court ruled that the federal commission had no authority over the port. Why does this case matter? Because the court found a new way to guard states from

the actions of executive branch agencies–the 11th Amendment, which had never been used in that way. With one more wall between states and federal authority, the court has more freedom than ever before to shield the states from congressional oversight. In his dissent, Justice Breyer declared, “[This decision] lacks any firm anchor in the Constitution’s text . . . [and] sets loose an interpretive principle that restricts far too severely the authority of the federal government to regulate . . . relationships between state and citizen.” One can only imagine how the states, armed with this ruling, might contest other federal prerogatives.

In the coming term, the Supreme Court plans to hear an appeal from the state of Nevada challenging Congress’s authority to require states, under the Family and Medical Leave Act, to give their employees unpaid leave for family medical emergencies. If history is any indicator and Noonan’s analysis is correct, Nevada, the federalists, and the Bush administration might enjoy another fruitful year.

Josh Gottheimer, a former speechwriter to President Bill Clinton, is the editor of Ripples Of Hope: Great American Civil Rights Speeches, which will be published in the spring..

Josh Gottheimer, a former speechwriter to President Bill Clinton, is the editor of Ripples Of Hope: Great American Civil Rights Speeches, which will be published in the spring..