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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.]

William Rehnquist

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"]

Related Posts (on one page):

  1. WSJ Column Now Online:
  2. Will The "New Federalism" Survive the New Court?
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WSJ Column Now Online: OpinionJournal.com has made my op-ed on Chief Justice Rehnquist available for free here as part of its "At Law" series.
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