Justice Kennedy: Foot Soldier of the Federalism Revolution

Daniel Becker

Justice Kennedy has written quite a few groundbreaking opinions in his career. Undoubtedly his most famous opinions are Lawrence v. Texas and Obergefell v. Hodges, both cases extending Due Process protections to LGBT people. But Justice Kennedy has also made enormous contributions to the revolution in the Court’s understanding of federalism. Justice Kennedy joined the majority repeatedly to prevent the federal government from treating the states as administrative appendages instead of co-sovereigns. He voted to create the anti-commandeering doctrine in New York v. United States, to preserve it in Printz v. United States, and to extend it in Murphy v. NCAA just this year. Justice Kennedy’s views on the subject can be found best in a decision he authored, Alden v. Maine.

In Alden v. Maine, Congress had authorized suits against states in their own state courts if the state violated the overtime provisions of the Fair Labor Standards Act. Maine protested, arguing that Congress had no power to authorize suits against the state of Maine in Maine’s own courts. Justice Kennedy, writing for the majority, sided with Maine in a strongly worded opinion supporting the sovereignty of states. Kennedy wrote that the Constitution protected the sovereign status of the states in two ways, first by reserving a substantial portion of power in the states, second by ensuring that the federal and state governments could act only upon people. The federal government could not act upon the states themselves. The principle that the government could not act upon the states themselves, but could only act upon the people, is an echo of the anti-commandeering doctrine which had been previously announced in New York v. United States.

Additionally, Kennedy tied the protection of state sovereignty to the original constitutional design. Looking at the history of the Eleventh Amendment, which prevents states from being sued in federal courts, Kennedy wrote that “Congress acted not to change but to restore the original constitutional design.” The Eleventh Amendment was a reaction to Chisholm v. Georgia, which allowed the state of Georgia to be sued in federal court. The Eleventh Amendment passed Congress and was ratified within a year. The majority understood the swiftness of passage to mean that the people had a very different understanding of the role of the states in the Constitutionally created federal system than the role of the states as understood by the Chisholm court. Thus, Kennedy provided a historical and originalist basis for state sovereign immunity. Sovereign immunity was not created by the Eleventh Amendment, but instead derived “from the structure of the original Constitution itself.”

Finally, Kennedy relied on precedent to show that the federal government could not save the law by appealing to the Necessary and Proper Clause. The Necessary and Proper Clause gives the federal government the choice of means to carry out its Art. I, §8 powers, but does not authorize them to use unlawful means of doing so. None of the Court’s precedents had ever found that an incidental infringement of a state’s sovereignty was a proper use of the Necessary and Proper Clause. Thus, Justice Kennedy cast his majority opinion as a rediscovery of founding principles instead of the judicial activism charged by the dissent.

Justice Kennedy’s opinion in Alden showed that he was a believer in the argument that the states had a vital role to play in the federal system the Constitution had created, that the Constitution intended them to play a vital role, and that they should be given the dignity and respect they deserved as co-sovereigns with the federal government. As he retires, the federalism revolution he helped usher in is well-accepted, having recently been reaffirmed in Murphy v. NCAA this past term.  While an overlooked area of his jurisprudence, Justice Kennedy should be seen as more than a necessary fifth vote in the federalism revolution which took place during the Rehnquist and Roberts Court.