We often think of the Constitution as a two-part document: first the original 1787 text, which primarily establishes the government’s structure; and then the amendments, which primarily set forth our rights. But it’s not nearly that simple: Our government’s structure—its federalism and its separation of powers—was devised not just to promote energetic government, but also to secure individual liberty. Or, as Alexander Hamilton stressed in Federalist 84, “the truth is” that the original structural Constitution “is itself, in every rational sense, and to every useful purpose, a bill of rights.”
In recent years, the relationship between structure and rights has been emphasized by Justice Anthony Kennedy. And his comments at oral argument in Sebelius v. Hobby Lobby, the case challenging the Department of Health and Human Services’ “contraception mandate” on religious liberty grounds, suggest that he may be returning to that theme once again.
Because Justice Kennedy occupies the Court’s ideo-logical and tactical center, lawyers and pundits invest great effort in analyzing where he might land in any given case. In 2011 and 2012, as the constitutional challenge to Obamacare’s individual mandate made its way to the Court, all were focused on Justice Kennedy’s well-established habit of invoking the commerce clause, which divides power between the federal and state governments, as a bulwark of liberty.
Specifically, observers turned to Kennedy’s separate opinion in United States v. Lopez (1995). In that case, the Rehnquist Court held that the commerce clause did not empower Congress to regulate guns unconnected to interstate commerce. But Kennedy also wrote separately to stress that, “though on the surface the idea may seem counterintuitive, it was the insight of the Framers that freedom was enhanced by the creation of two governments, not one.” He continued by quoting James Madison’s Federalist 51:
In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.
Kennedy reiterated these federalist themes in Bond v. United States (2011), this time writing for the majority to explain why an individual had “standing” to vindicate the states’ commerce clause interests in court. Again invoking Madison, he stressed, “Federalism has more than one dynamic.” While “the federal structure serves to grant and delimit the prerogatives and responsibilities of the States and the National Government vis-à-vis one another,” federalism protects more than just the respective domains of our national and state governments. “Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.”
And so a year later, when the Supreme Court decided the Obamacare individual mandate case, these federalist themes were central to the conservative justices’ opinion that the mandate exceeded the limits of the commerce clause. While the opinion was signed jointly by Kennedy, Scalia, Thomas, and Alito, the distinctive tones of Kennedy’s previous opinions rang clearly: “Structural protections—notably, the restraints imposed by federalism and separation of powers—are less romantic and have less obvious a connection to personal freedom than the provisions of the Bill of Rights or the Civil War Amendments,” the justices observed. But “the Framers considered structural protections of freedom the most important ones, for which reason they alone were embodied in the original Constitution and not left to later amendment. The fragmentation of power produced by the structure of our Government is central to liberty, and when we destroy it, we place liberty at peril.”
Even more recently, Justice Kennedy commingled notions of federalism and individual liberty in his opinion for the Court in Windsor v. United States (2013), striking down the Defense of Marriage Act’s federal definition of marriage. There, Kennedy held that the federal government’s denial of recognition for same-sex marriages violated the Fifth Amendment’s due process (and implicit equal protection) clause, but only after reading the Fifth Amendment against the background of traditional state authority, rather than federal authority, to define marriage.