The New York Times objects to the Supreme Court's recent contraction of the Americans With Disabilities Act. I can't believe my eyes, either.
Board of Trustees of the University of Alabama v. Garrett will no doubt be lauded by parched conservatives who see the slightest defense of federalism as a nomocratic oasis. (The decision is akin to last year's Morrison decision that invalidated part of the Violence Against Women Act but left the law otherwise intact.) The Left thrives on such low expectations, knowing their opponents will be satiated by these cosmetic affirmations of first principles.
The Times echoes a conservative critique in arguing that Garrett is an act of judicial usurpation, "the latest in a series of lamentable judicial assaults on the legitimate authority of the federal government to identify and address serious national problems by enforcing constitutional guarantees of equal protection." Talk about a zany mixture of New Deal rhetoric with Anti-Federalism!
The editorial notes that the ADA "marked a turning point in recognizing and remedying the entrenched unfairness that too often marginalizes disabled Americans." An introductory sociology text couldn't have put it better.
In defense of the ADA's legitimacy, the Times contends: "The disabilities act is a reasonable exercise of Congress's broad power under section 5 of the 14th Amendment of the Constitution to enforce equal protection. As such, it deserved more deference than the court's dismissive treatment." Don't you love the poetic cadence of the second sentence?
The substance, however, is inferior to the style. The Equal Protection Clause of the 14th Amendment plainly applies to state action, not private conduct. An Alabamian who refuses to hire a wheelchair-bound individual is not equivalent to the State of Alabama refusing to hire that individual. (This leaves aside the problematic implementation of the 14th Amendment. For discussion by two scholars of disparate orientations, see Bruce Ackerman's We the People: Transformations and Forrest McDonald's States' Rights and the Union: Imperium in Imperio, 1776-1876.)
The judicial amalgamation of private and state action through the 14th Amendment is among the worst innovations of the high tribunal, sophisticatedly advancing a synonymy between state and society. (See Reitman v. Mulkey as an exemplary instance. In this case, the Court affirmed a California Supreme Court ruling finding unconstitutional state encouragement of racial discrimination in a referendum that protected proprietary discretion in housing.) Is this not reminiscent of Mussolini's "Everything within the state, nothing outside the state"?
A trait common to all total states is the erasure of the private sphere. Mussolini's dictum perfectly summarizes fascist doctrine and omnipotent government in general. After all, if private life is respected, the State's purview is not plenary. This exterior immunity is intolerable to those of regulatory intensity.
James Madison observed in Federalist No. 54, "Government is instituted no less for protection of the property than of the persons of individuals." The definitiveness of that sentence reflects the profound proprietary component in American federalism.
Federalism according to the Times would convert a business owner's refusal to hire a disabled individual – a term that includes drug addicts and alcoholics – into state action. As such, its constitutional vision accords more with Il Duce than the framers.
For further reading: James Bovard, "Disabilities Dementia," in Feeling Your Pain: The Explosion and Abuse of Government Power in the Clinton-Gore Years.
March 5, 2001
Myles Kantor lives in Boynton Beach, Florida.
