Judicial review, local values, and pluralism. (Twenty-Seventh Annual National Federalist Society Student Symposium)

I.

"It is," the Twenty-Seventh Annual National Federalist Society Student Symposium program reports, "a basic assumption of federalism that individual communities can be different; they may have different values, and they will certainly have different laws." (1) This is true. Notwithstanding American Idol, Starbucks, USA Today, and chain restaurants, individual communities not only can be different, they are different. They often sit on opposite sides of what commentator David Brooks has called the "meatloaf line," which divides places with "sun-dried-tomato concoctions on restaurant menus" from those with "meatloaf platters." (2) Even before the 2000 election, and the explosion of "Red-versus-Blue"-themed social commentary, (3) it should not have been controversial to note that the communities of San Francisco and Provo "have different values"--not entirely different, of course, but still different. And, if the legal enterprise involves, among other things, an effort to order our lives together in a way that reflects and promotes our understandings of human flourishing, then we should not be surprised that communities' "different values" often translate into "different laws."

The question presented to this panel was: Does pervasive judicial review threaten to destroy local identity by homogenizing community norms? (4) The short and correct, even if too quick answer to this question is "yes." That is, pervasive judicial review certainly does threaten local identity. It does so, in part, because judicial review can homogenize community norms, either by dragging them into conformity with national, constitutional standards or, more controversially, by subordinating them to the reviewers' own commitments.

To say this is neither to criticize judicial review nor to celebrate excessively local identity; it is to identify neither the point at which judicial review becomes pervasive nor the point at which possibilities become threats. If we aspire to more than stating the obvious, we should reach for clarity about what are and are not the problems with and risks of judicial review, and also about what is and is not important about respecting community norms and protecting them from homogenization. We need to ask for example, how much room the Constitution leaves for legal experiments that reflect local values. (5) When must legal expressions of local values give way to legal expressions of national ones? And who decides?

It is true that an important feature of our federalism is local variation in laws and values. It is also true, however, that some values have been homogenized, not by judicial review, pervasive or otherwise, but by the ratification of the Constitution, which is the "supreme Law of the land.... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." (6) Our federalism proceeds from the premise that individual communities can be different, but it also reflects a vision of national citizenship, some fundamental moral commitments, and a common project. It is a basic assumption of federalism that local communities may have different values. But it is also a basic assumption of federalism that the national Union is committed to some shared values, that separate communities are bound by some shared laws, and that there were and are reasons for America's distinct communities to come together and form, in the words of the Preamble, a "more perfect Union." (7) Our various local communities and political subdivisions are not merely next to each other in space; they do not simply share a continent and currency. They are meaningfully "united."

Of course, to gesture toward the Supremacy Clause and our nation's name is hardly to answer the hard and interesting questions that the panel's topic prompts. Still, even this gesture is enough to remind us that the text, history, structure, and theoretical premises of the Constitution point toward the importance of both diverse local "laboratories of democracy" (8) and a larger, national community--a Union constituted by "We the People." (9) Vindicating the values and aims of this national community will sometimes require constraining, revising, or rejecting some laboratories' experiments and some expressions in law of local majorities' values.

Americans often talk and think about the potential conflict between judicial review and local values in terms common to the discussion of dual sovereignty. That is, we ask, "Which government's policy choice, the federal government's or the state's, wins out here?" in a way that invites an answer couched in a states' rights idiom. The Constitution's liberty-protecting structural features should, instead, be understood more in terms of limited and enumerated powers than in terms of states' rights. (10) The Constitution appreciates, reflects, and incorporates pluralism and local values in a particular way, namely, by stating clearly that the national government and its various branches have only those powers that are "delegated to the United States by the Constitution." (11) And so, federal courts have the power--the "judicial Power of the United States"--to decide cases "arising under [the] Constitution." (12) They do not have the power to survey the national scene looking for local values and community norms in need of revision or homogenization, or to discover abstract rights and liberties in need of vindication. (13) That said, sometimes in the context of doing what it is authorized and supposed to do, a federal court will, and should, refuse to enforce a law that reflects the norms and values of a particular community. Such a refusal admittedly can appear to be a judicial interference with community values and will, in some cases, result in or aim toward the homogenizing of norms. But again, the Constitution itself makes some such judicial interference unavoidable because its text and structure both permit and call for it. The questions, then, are not so much whether federal courts may or should interfere with community values, but when and how they should do so.