state-imposed term limits for congressionalrnrepresentatives; the prohibitionrnon state-sponsored male-only militaryrnacademies; and the prohibition on statesrnoutlawing preferential treatment for homosexuals.rnThe plethora of court-imposedrnrestrictions on what states can do,rncoupled with the federal courts’ increasinglyrnpermissive reading of the CommercernClause to allow federal regulationrnof almost all state economic, educational,rncultural, or political activity, led tornsuch a weakening of state sovereigntyrnthat secession might well be perceived asrnthe only reasonable solution for thosernwho want to preserve the Constitution’srnoriginal conception of popular self-government.rnBut reform may be possible. Forrnmany years, the federal courts have exacerbatedrnracial tension by mandatingrnremedies for school segregation and byrndictating employment and educationalrnpractices that required counting by race.rnThese decisions required state and localrnauthorities to divide up the citizenry andrndole out rewards based on the color ofrnskin rather than on competence or character.rnBut the mood has changed, andrnrecent decisions by the Supreme Courtrnhave made it more difficult for the staternand federal governments to dole out benefitsrnaccording to race, and have evenrnstated that such racial line-drawingrnthreatens to balkanize American societyrnand to stigmatize those favored by suchrnprograms. The language employed inrnthe opinions—”strict scrutiny” or “compellingrninterest” —is maddeningly elusive.rnStill, the thrust has been clear, andrnthe results have been dramatic. For instance,rna federal court of appeals has forbiddenrnTexas to use racial preferences inrnadmissions to its law schools, and California’srnProposition 209, which bars thernuse of such quotas in any state programs,rnhas been permitted to go into effect.rnIn the 1996-97 term, the SupremernCourt rejected arguments based inrnessence on the Casey mystery passagernand upheld state laws banning assistedrnsuicide on the grounds that the 14thrnAmendment included no “right to die.”rnThe Court made no move to overrulernCasey and Roe, but it significantly undercutrnthe constitutional theory of those cases,rnand made it clear that (for the moment,rnat least) it was out of the businessrnof reading new rights into the 14thrnAmendment.rnThe federal courts’ hostility to religionrnappears to be eroding as well. A fewrnterms ago, the Supreme Court upheldrnthe right of religious groups to functionrnon state college campuses on the samernterms as secular organizations, and lastrnyear the Court explicitly overruled arn1985 decision that barred New Yorkrnfrom spending public funds to sendrnteachers to teach remedial education tornpupils at private religious schools. Thern1985 opinion had declared that such anrnexpenditure was too great an entanglementrnof the state with religion, but, mysteriously,rnthe 1997 decision simply declaredrnit was not.rnThe Supreme Court has also voidedrnthe so-called Religious Freedom RestorationrnAct (RFRA), a federal law that attemptedrnto overrule a Supreme Courtrndecision which had given states morernfreedom to reject claims of religious immunityrnwhen applying general statutes.rnThe decision Congress sought to overrule.rnEmployment Division v. Smithrn(1990), had permitted Colorado to applyrnsanctions against users of peyote even ifrnthey claimed such use was required byrntheir Native American religion. Thernclaimants in that case had maintainedrnthat the state had to prove that it was followingrna policy which could be achievedrnin virtually no other way, and thus arn”compelling” rationale was required beforernthe state could interfere with an individual’srnassertion that a religious preferencerntrumped general legislation. ThernCourt, in an important opinion by JusticernScalia—a judge, incidentally, whornhas been a strong critic of the anti-schoolrnprayer and anti-Bible reading decisionsrnand who has often publicly proclaimedrnhis deep religious feelings—upheld thernstate, and declared that all that was requiredrnto sustain the general legislationrnwas that it be pursuant to a rational legislativernpolicy not aimed at interferingrnwith religion. The “rationality” test gavernstates much more freedom than the previouslyrnprevailing “compelling interest”rntest.rnRFRA sought to require the SupremernCourt to return to the “compelling interest”rnstandard. To the surprise of mostrnpundits, the Court threw out RFRA,rnclaiming that it was for the Court, notrnCongress, to set the constitutional standardsrninvolved. Not surprisingly. JusticernScalia concurred in the result. Whilernthe decision may seem to disfavor religion,rnit actually strengthens state controlrnover the area, and moves toward recognizingrnthat religion is a matter for thernstate, not the federal, government. Significantly,rnJustice Stevens, a dependablernmember of the bloc that normally supportsrnexpansion of the incorporation doctrinernand a broadened role for the federalrngovernment, declared that RFRA,rnbecause it was an attempt by the federalrngovernment to meddle in religious matters,rnviolated the First Amendment’s “establishment”rnclause.rnThis decision can thus be read as arnreaffirmation of federalism and of dualrnsovereignty, and there are several otherrnrecent Supreme Court decisions whichrnpoint in this direction. One of the mostrnfamous was the invalidation of the federalrnGun-Free School Zones Act on therngrounds that the interstate commercernjustification for the act was specious, andrnthat it interfered with educational mattersrnthat were the tiaditional prerogativernof the states. This was the first decisionrnin decades that circumscribed the federalrngovernment’s Commerce Clausernpower, which New Deal decisions hadrnexpanded to illimitable proportions. Arnsimilar limitation occurred in the BradyrnBill case, in which the Court declaredrnthat provisions of the bill drafting staternofficials to aid in its enforcement violatedrnprinciples of dual sovereignty. Both ofrnthese were decisions by narrow majorities,rnand both featured dissents by Clintonrnappointees to the Court.rnBut the most significant recent decisionrnmay have been the Court’s unanimousrnrejection of President Clinton’srnclaim, in the tort action brought againstrnhim by Paula Jones, that, as a sitting President,rnhe could not be required to be arndefendant in a civil action. There werernno prior precedents granting any Presidentrnsuch immunity, but since two Justicesrnwere appointed by Clinton and hisrnposition had strong defenders in thernacademy, the unanimity was still a surprise.rnThe Court’s embrace of the principlernthat no person is above the law wasrnboth a stunning and reassuring assertionrnof the rule of law.rnOutside the federal courts, there arernalso some signs that the constitutionalrndoctiines of the Old Republic have notrnbeen completely eviscerated. In the lawrnschools, for the first time in memory, arnnumber of scholars, many of whom arernquite openly persons of faith (even somernat Harvard and Yale), have begun to revealrnthe weaknesses in the Court’s religionrndecisions and to criticize the “incorporationrndoctrine.” For the first time inrn30 years, it may become respectablernonce again to argue the truth—that thernOCTOBER 1998/49rnrnrn