Federalism 2.0, the 10th Amendment, Equal Protection, and the Unconstitutionality of Section 3 of DOMA

July 27th, 2011

In Federalism 2.0, I advanced that going forward, the Supreme Court’s federalism jurisprudence, as advanced in Bond v. United States, will be used as a means to protect individual liberty.

The Roberts Court has taken a different approach to Federalism–call it Federalism 2.0. This federalism focuses on protecting certain structural features of our constitutional system, not to benefit states’ rights qua states’ rights, but rather to protect individual liberty as an end unto itself. In Bond v. United States, Justice Kennedy identified the two purposes of separation of powers (this passage was repeated by Chief Justice Roberts in Stern v. Marshall).

“Separation-of­ powers principles are intended, in part, [1] to protect each branch of government from incursion by the others. Yet the dynamic between and among the branches is not the only object of the Constitution’s concern. [2] The structural principles secured by the separation of powers protect the individual as well.”

The former rationale is the reason behind “New Federalism.” The latter rationale is the reason behind Federalism 2.0.

In an amicus brief filed by the Attorney General of NY in a SDNY case challenging the constitutionality of Section 3 of DOMA, New York make an argument that sounds in federalism 2.0–using the 10th Amendment to protect individual liberty viz equal protection.

Although plaintiff has not raised a Tenth Amendment claim in her complaint, principles of federalism should inform this Court’s review of her equal-protection claim as well.Federalism protects not merely the interests of state governments, but also individual liberty: “By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power.” Bond v. United States, 131 S. Ct. 2355, 2364 (2011). The power of Congress is at its lowest when it seeks to discourage States from enacting statutes, like the Marriage Equality Act, that are at the core of the States’ sovereignty. In analyzing the validity of the Gun-Free School Zones Act under the Commerce Clause, Justice Kennedy instructed that “[A]t the least we must inquire whether the exercise of national power seeks to intrude upon an area of traditional state concern.” United States v. Lopez, 514 U.S. 549, 580 (1995) (Kennedy, J., concurring). So too here, the analysis of the statute must take into account that it intrudes on an area of traditional state concern. See also Massachusetts, 698 F. Supp. 2d at 249 (DOMA “intrudes on a core area of state sovereignty”); Dragovich v. U.S. Dep’t of Treasury, 764 F. Supp. 2d 1178, 1189 (N.D. Cal. 2011) (DOMA “impairs the states’ authority to define marriage”). DOMA’s unprecedented supplanting of state definitions of marriage with a federal definition should therefore be reviewed with significant skepticism, and in recognition of the principle that “the Constitution divides authority between federal and state governments for the protection of individuals.” New York, 505 U.S. at 181.4 

Expect to see many more arguments along these lines as the Roberts’ Court’s Federalism 2.0 Jurisprudence develops. From the moment I read Bond, I realized that this case had some serious potential. Indeed it has.

H/T ConstitutionalLawProf Blog