At Bloomberg, Ramesh Ponnuru argues that in deciding the pending marriage and race cases, the Supreme Court should adopt a consistent ethic of judicial deference. Both conservatives and liberals, he explains, generally are inconsistent in their application of deference, with liberals favoring deference in the race, but not the marriage cases, and conservatives advocating the opposite.
Instead, Ponnuru urges the Court to defer to the state and federal governments in all these cases. He concludes that the Court should thus uphold the constitutionality of all the challenged policies, whether marital or racial, whether state or federal, but invalidate state racial preferences simply on statutory grounds–as violative of the federal Civil Rights Act of 1964.
While, as noted below, I agree with all but his last conclusions (I think the Court should hold valid all the challenged laws and policies), I believe his consistent ethic of deference is inconsistent with our Constitution. At least two express provisions of our Constitution indicate that the Supreme Court, and indeed all the federal courts, should treat state and federal governments unequally by deferring to the former but not the latter.
Most notably, the Tenth Amendment strongly suggests a constitutional presumption that is at once favorable to state authority and adverse to federal authority. This Amendment declares that the states and the people retain all powers, save only those that the people, through the Constitution, have granted to the central government or forbidden to the states. Therefore, constitutional silence represents a green light to the states but a red light to the federal government. As Professor Gary Lawson has pointed out, this rule supports a presumption of constitutionality for state laws, but a presumption of unconstitutionality for federal laws, because in the latter case, “the burden of proof initially lies with whoever claims that the federal government has the enumerated power to enact the statute in question.”
But there is another clause, the Republican Guaranty Clause of Article IV, which more affirmatively imposes a judicial duty of deference to the states. That Clause provides that “[t]he United States shall guarantee to every State in this Union a Republican Form of Government.”
The Clause surely governs all officers of the United States, including federal judges. After all, the sole power granted to federal courts is the “judicial power of the United States.” The Constitution thus imposes on the judicial officers of the United States the duty to exercise that limited power in a manner that will safeguard the republican government of each state.
By a “republican” form of government, the Framers understood a wholly popular government—one that “derives all its powers directly or indirectly from the great body of the people” and whose officers serve “during pleasure for a limited period, or during good behavior.” The judges’ duty to safeguard the fifty republican governments is for the benefit of the peoples of the respective states—the preservation of their “residuary and inviolable sovereignty.”
How might the Supreme Court (and other federal courts) perform this constitutional duty? First and foremost, the Supreme Court should be wary of dangers from the federal government itself. Both Congress and the federal courts can seriously undermine a state’s republican liberty. Congress can seize power from the peoples of the respective states. The Constitution contemplates at least 51 republics: the national republic and the republics of the 50 states. By usurpatious laws, Congress wrongly undermines the 50.
But judicial usurpations, by the invention of new constitutional prohibitions, represent an even graver offense against republicanism. After all, the people of each state form a part of the national people and have some representation in Congress. But the people of a particular state have, at most, a remote representation in the federal courts. Federal judges are largely unselected by, and unaccountable to, the peoples of the respective states..
The Supreme Court, then, should be vigilant in protecting each state’s republican liberty against usurpations by the federal courts as well as by Congress. Therefore, the courts should presume the constitutionality of democratic state action, but the unconstitutionality of federal action, whether legislative or judicial.
To be sure, other provisions of the Constitution constrain the states’ reserved republican liberty. Some powers are clearly granted to Congress, and some prohibitions are clearly imposed on the states. And to the extent of those enumerated powers and prohibitions, the presumption in favor of residual state authority is overcome, and the Supreme Court should decide accordingly.
In light of these principles—principles fairly derived from the Constitution’s actual text—the Supreme Court should reach the following conclusions, which I list in the order of declining certitude—(at least my certitude).
1. In Hollingsworth v. Perry (the Proposition 8 case), the Supreme Court should defer to the republican authority of the people of California and defend their liberty against the novel rules imposed by the lower federal courts. The presumption of constitutionality is not overcome by any bona-fide constitutional prohibition. No provision of the Constitution, fairly interpreted in light of its actual text, its drafters’ intent, or its consistent interpretation throughout our history, prohibits the states from retaining the traditional definition of marriage.
2. In Shelby County v. Holder, the Supreme Court should presume the unconstitutionality of the federal Voting Rights Act but hold that the presumption is overcome by the fact that the Constitution’s Fifteenth Amendment expressly gives Congress the authority to adopt laws to secure voting rights against state denial or abridgement.
3. In Windsor v. United States, the Supreme Court should presume the unconstitutionality of the federal Defense of Marriage Act (DOMA), but hold that this presumption is overcome by the well-established precedent that Congress’s express power to tax and spend includes the power to promote a great variety of ends, including marriage, and that Congress surely has the power to define the things it wishes to promote. To be sure, according to a Madisonian reading, Congress’s fiscal power may foster only those responsibilities expressly entrusted to the central government, such as the regulation of commerce, the national defense, etc.; and marriage, however defined, is not one of these ends. Still, for at least 75 years, the justices of the Supreme Court have unanimously concurred otherwise; they have adopted Hamilton’s conclusion that the taxing and spending powers may be used to promote other purposes.
Given this long-standing precedent, given that this precedent represents a plausible reading of the actual Constitution, and given that no one in the case has sought to challenge this precedent, the Supreme Court should hold that Congress’s arguable power to tax and spend for the purpose of promoting marriage rebuts the presumption that DOMA is unconstitutional.
4. In Fisher v. University of Texas, the Court should defer to the republican authority of the people of Texas (which includes me) and presume the constitutionality of the state’s policies concerning university admissions. The evidence to rebut this presumption is at best, mixed. Although there is some reason to conclude that the authors of the Fourteenth Amendment meant to require the states to be scrupulously color-blind, neither that Amendment, nor its original understanding, nor its historical interpretation, clearly rebut the presumption of constitutionality to which Texas is entitled. Conversely, the Court should be reluctant to hold, as Mr. Ponnuru advocates, that the Civil Rights Act of 1964 prohibits all state racial preferences, for the following reasons: (1) the Act, as federal law, is presumptively unconstitutional, (2) the Act’s conditional-spending regulations are constitutionally suspect, and (3) for over half a century, the Court has refrained from interpreting the Act so as to restrict the states’ liberty to adopt mild, remedial racial preferences.
Here is my unsolicited advice. I hope that the Justices will give my recommendations careful and sustained consideration.
 The Federalist No. 39.
 United States v. Butler, 297 U.S. 1 (1936).