Will The "New Federalism" Survive the New Court? The Wall Street Journal has given permission for me to reproduce the entirety of my op-ed in yesterday's edition marking the passing of Chief Justice Rehnquist, the Rehnquist Court, and perhaps also the "New Federalism" that he did so much to develop. [UPDATE: It is now available for free on OpinionJournal.com here.]
By RANDY E. BARNETT
September 6, 2005; Page A28
Last December, during my oral argument in the medical marijuana case of Gonzales v. Raich, the center chair normally occupied by Chief Justice William Rehnquist was empty. Without the towering, and sometimes glowering, visage of the Chief, with his no-nonsense demeanor and questioning, there was a palpable void in the courtroom that day. Now, with his passing, there is a void in the Supreme Court itself. Today we mourn the death of William Rehnquist. One day soon we may mourn the death of his legacy — the jurisprudence of the Rehnquist Court.
Even before becoming chief justice, often in lonely dissents, it was William Rehnquist who was most personally responsible for what is now called "the New Federalism" — the revival of the ideas that judiciary should protect the role of the states within the federal system and enforce the textual limits on the powers of Congress. Establishing the New Federalism took enormous effort and leadership by Rehnquist over many years. Now that legacy is in jeopardy.
At the founding, and for some 150 years thereafter, the limits on congressional power provided by the Constitution of 1789 — as modified by the Fourteenth Amendment — were enforced by the Supreme Court. According to the textual plan, Congress is, with few exceptions, confined to the express powers enumerated in Article One of the Constitution. While these express powers were understood as flexible, they were nonetheless limited. When the federal government was limited to its enumerated powers, the states were left to the exercise of their police powers, subject to the limitations imposed upon them after the Civil War by the Fourteenth Amendment.
The Founders' plan was more or less intact until the 1930s, when President Roosevelt and the New Deal Congress enacted a massive expansion of federal power. By the 1940s, the textual scheme of limited federal powers was effectively swept away by a Supreme Court dominated by appointees of President Roosevelt. In a series of landmark decisions, such as Wickard v. Filburn in 1942, the New Deal Court replaced the Constitution's textual scheme of limited federal power with a policy of judicial deference to any claim by Congress to regulate anything and everything with even a remote connection with the national economy.
By the early 1990s, even the requirement of a remote connection was giving way, as Congress began to regulate subjects that could only be described as "interstate commerce" by Lewis Carroll's Humpty Dumpty, who asserted (in a rather scornful tone) that: "When I use a word, it means just what I choose it to mean — neither more nor less." With no judiciary to provide a constitutional compass, Congress passed laws reaching activities such as possessing a gun near a school without even trying to show how the regulated activity had any conceivable connection with "commerce . . . among the several states."
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But William Rehnquist had a constitutional compass. [to read the rest, click on "show"](show)
In the beginning, he took what he could get. As an associate justice, his opening strategy for nudging the Court back onto the constitutional path was to carve out of federal power exemptions for state discretion. His first major triumph came in the 1976 case of National League of Cities v. Usery, which established a limit on the powers of Congress to interfere with such "traditional governmental functions" as fire prevention, police protection, sanitation, public health, and parks and recreation. Writing for the Court, then-Justice Rehnquist announced that, "This Court has never doubted that there are limits upon the power of Congress to override state sovereignty, even when exercising its otherwise plenary powers to tax or to regulate commerce which are conferred by Art. I of the Constitution." This sort of reliance upon first principles to draw an outer limit to federal power became his trademark.
Rehnquist's initial victory, however, was short-lived. Notwithstanding the precedent of National League, in 1985 the Burger Court reversed itself in Garcia v. San Antonio Metropolitan Transit Authority. In Garcia, the Court announced that the protection of the states would, once again, solely be a political rather than also a judicial question. In a terse four-sentence opinion, Rehnquist presciently predicted, "I do not think it incumbent on those of us in dissent to spell out further the fine points of a principle that will, I am confident, in time again command the support of a majority of this Court."
With Justice Rehnquist's ascension to chief justice, the Rehnquist Court cabined Garcia's laissez-faire approach toward Congressional power with a series of "Tenth Amendment" cases that aimed at protecting state sovereignty from federal interference in a variety of ways. I put Tenth Amendment in quotes because this jurisprudence was never grounded on the original meaning of the Tenth Amendment, which merely affirms that the Federal government is one of delegated powers, and that all powers not delegated are reserved to the states or to the people. With the post-New Deal judiciary interpreting the delegated powers so as to allow the Federal government to do virtually anything it wants, federal power had completely enveloped any "reserved" powers of states. Instead of directly holding Congress to the powers enumerated in the text, these earliest New Federalism cases attempted indirectly to preserve the underlying "principle" of federalism by carving out islands of state sovereignty in a sea of federal power.
Chief Justice Rehnquist understood this, of course. In 1995, he launched a direct attack on the source of the problem in the case of U.S. v. Lopez, which held unconstitutional the Gun Free School Zone Act because it exceeded the power of Congress to "regulate commerce . . . among the several states." There he wrote, "We start with first principles. The Constitution creates a Federal Government of enumerated powers." For the first time in 60 years, the Court found a federal statute to have exceeded the commerce power of Congress. Rehnquist's opinion in Lopez sent shock waves through the legal academy.
Few thought the Rehnquist Court was serious, however, until 2000, when, in U.S. v. Morrison, it struck down a portion of the Violence Against Women Act that created a federal civil cause of action for "gender motivated violence." Once again, the chief justice affirmed that: "The Constitution requires a distinction between what is truly national and what is truly local. . . . In recognizing this fact we preserve one of the few principles that has been consistent since the [Commerce] Clause was adopted."
Together with the Tenth Amendment cases, Rehnquist's opinions in Lopez and Morrison were the keystones of the New Federalism. Had he been able to marshal a consistent majority for the constitutional "first principles" these cases represented, the Rehnquist Court might have overseen a constitutional restoration as substantial as the constitutional demolition begun by the Roosevelt Court. But both decisions were 5-4, with the five more "conservative" justices in the majority and the four more "liberal" justices in strong dissent. The four adamant dissenters have not relented in their opposition and need only pick off one of the New Federalists to uphold the constitutionality of a claim of federal power.
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Perhaps because his illness prevented him from providing his strong personal leadership, in this the final year of the Rehnquist Court there are signs that his legacy may not endure. In Gonzales v. Raich both principles of state sovereignty and of enumerated powers were put to the test. Rehnquist was one of only three justices who were willing to say that Congress cannot magically transform the noncommercial possession of homegrown marijuana into "interstate commerce." The Chief joined the dissenting opinion written by Justice Sandra Day O'Connor. Many who now lionize her when discussing her replacement omit mentioning her stalwart support of the New Federalism so strongly advanced by her fellow Arizonian and Stanford classmate.
Sometime this fall, two of the five votes that made up the Lopez and Morrison majorities will have been replaced. Only Justice Clarence Thomas will be left from the three Raich dissenters. As the new chief justice (assuming he is confirmed), will John Roberts assume the role of his mentor William Rehnquist — for whom he clerked — and lead the Roberts Court to enforce the Constitution's original plan of limited federal power? Will President Bush now look for a nominee to replace Justice O'Connor who is as committed to the New Federalism as she was? Given that so many of the New Federalism cases were 5-4, if either of the new justices adopts the mantra of "judicial deference" to congressional power, then Chief Justice Rehnquist's death, along with Justice O'Connor's retirement, may presage the second death of federalism. A judicial withdrawal from enforcing the original limits on the powers of Congress would undo the New Federalist legacy of William Rehnquist.
As the president now decides who next to nominate, he would uphold the Constitution by selecting a person with a firm and demonstrated commitment to the Rehnquist Court's New Federalism legacy. Only such a choice would continue the movement to restore the "first principles" of constitutionally limited government that William Rehnquist affirmed so eloquently. One can hardly imagine a sadder end to the tenure of William Rehnquist than that his most prized and important contribution to constitutional law is aborted by a conservative Republican president and a Republican-controlled Senate.