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 here.]

William Rehnquist

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?
Scott Scheule (mail) (www):
Isn't it amazing that nobody was talking about this, linking to it, congratulating it, even though it was in the Journal yesterday? Thinking about it, it might have something to do with the lack of online access to the Journal.
9.7.2005 11:53am
SimonD (mail):
That was very well-written. I agree with a lot more of that than your recent ninth amendment essay. ;)

What I have found to be most strange about the Roberts nomination is the certainty and confidence with which groups such as NARAL and the ACS have declared that Justice Roberts will vote against Roe and Griswold. I see very little in his record that gives me hope that Roberts believes that text trumps precedent, and even less to make me think that he is (or could become) an originalist. Wherefore this strange certainty - or is it really entirely cynical?

For all the angry scolds of the left, it seems to me that those who should feel aggrieved about the Roberts nomination is not the left - who got far better than they could possibly have expected - but rather, those who voted for President Bush based on his promise to appoint Justices with views such as Scalia and Thomas. I'm concerned that I misunderstood Bush; Scalia and Thomas are originalists, textualists, and conservatives - at the best of times, in that order, but now it seems to me that what Bush meant was, "I will appoint conservative justices, period". For me, the constitution comes before party line, but the Bush administration and its supporters never saw a means they didn't like to an end they wanted, and it suddently seems depressingly clear that many of those who lionize Scalia know even less about his jurisprudence than those on the other side who demonize him.

One step forward, but, I fear, how many steps back?
9.7.2005 12:53pm
Gordon (mail):
It looks like the big federalism decision coming up in the next Supreme Court Term will be the Oregon "Death with Dignity" or "Assisted Suicide" (labels, labels, labels) case.

Right now it doesn't look good. Rehnquist and O'Connor were the staunchest advocates of federalism. The four New Dealers showed no inclination to twist their view of the Constitution to suit their political preferences, as is shown by Stevens' recent remarks. And I am rather suspicious that Scalia's decision to join the majority in Raich v. Ashcroft may have been influenced by his policy preferences. Those preferences will undoubtedly sway him even more in the Oregon case. Where Roberts comes out is anyone's guess.

"Federalism for me, not for thee."
9.7.2005 1:28pm
Brett Bellmore (mail):
Realisticly, there was never much chance that a President who'd Leave No Child Behind, and sign the BCRA, would really want to appoint originalists to the bench. Bush shows no sign of having any interest at ALL in limiting federal power to it's legitimate bounds.

I voted for Bush because I thought him more likely to appoint an originalist by mistake, as long as the odds against that might be.

The Constitution is not, I think, going to be restored. I attack "living" constitutionalism only because it's an idea that must be completely discredited in order that the next constitution not be stillborn, "interpreted" into meaninglessness before it ever has a chance to take effect.
9.7.2005 1:47pm
Bill Dyer (mail) (www):
Elegant and comprehensive, Prof. Barnett. Thanks for republishing it here!
9.7.2005 6:13pm