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The Rehnquist Court vs. The New Deal

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The Wacky, Left Coast Campaign

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Applying the Standard To Clinton

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Oust Clinton From the Legal Profession

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Judge-Made Taxes

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Scalia & Thomas: Leaders of the Court

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Anarchy For Me, Not For Thee

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90210: A Generation Duped

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Peter Angelos In Foul Territory

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Fourth Amendment Sneak Attack

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Califonia's School Quackery

5/24/00 12:25 p.m.
The Rehnquist Court vs. The New Deal
A big win for the Constitution.

By A. S. Gold

he legal establishment's left wing was more outraged this past week than it has been in years. Jack Balkin, in the New York Times, accused the Rehnquist Court of relying on "racist precedents" from the era of Reconstruction. Larry Kramer, in the Washington Post, stated that the Warren Court "could not touch this one for activism." Justice Souter warned the Court of a narrowly averted "near tragedy" when it engaged in allegedly similar decisions in the 1930s. None of this drama is because the Court held the Violence Against Women Act unconstitutional: Most commentators are aware that women will continue to have the same substantive rights at the state level. What worries the legal pundits is that decades of legislative carte blanche are coming under judicial scrutiny.

Our nation's most important legal doctrine is not always its most glamorous. The idea that the powers of the federal government are limited is well-known to the average middle-school student. Individual rights, such as the right to freedom of speech, are deeply ingrained in our society and the legal system. That fact that Congress only has the power to legislate on matters enumerated in the Constitution, however, is rarely mentioned in any context. Even so, this doctrine matters at least as much as the Bill of Rights.

Enumeration was once seen as an alternative to the Bill of Rights itself. The demise of this perspective occurred in the twentieth century. When Franklin Roosevelt found enumerated powers were inconvenient to an expanded government, the doctrine languished. The Supreme Court recently exhumed the idea, and as a result, held the Violence Against Women Act to be unconstitutional. This is cause for celebration.

The New Deal still exerts itself, but, over half a century later, a keystone of its jurisprudence has finally been rejected. Formally, New Deal judges never dropped the rule that Congress's powers are limited to constitutional grants of power. Instead, they expanded the primary source of Congressional power, the Commerce Clause, to cover all sublunary matters. The Commerce Clause itself is simple: "The Congress shall have Power…[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes." The New Deal readings of this Clause are tortured. Law students are frequently surprised when they first read the archetypal "modern" Commerce Clause case, Wickard vs. Filburn, which held that homegrown wheat for private consumption can be regulated because Congress controls interstate commerce. Wickard nevertheless became a paradigm case. Justice Souter accurately complains that the Supreme Court's May 15 decision in United States v. Morrison is discordant with Commerce Clause decisions from Wickard, decided in 1942, through the Rehnquist Court's other blockbuster in this area of the law, United States v. Lopez, decided in 1995.

In fact, Morrison is the single most important case to come out of the Rehnquist Court. The Violence Against Women Act of 1994 provides, among other things, that "[a]ll persons within the United States shall have the right to be free from crimes of violence motivated by gender." The remedy chosen for this federal right was an action for compensatory and punitive damages against the wrongdoer. Clearly, a laudable goal. No one could argue in favor of violence against women. The problem is that the power to police crimes was never taken from the states, or given to Congress. Likewise with domestic law. The Founders wisely left moral legislation to local powers. They neglected to mention a federal police power. (And wisely, if one imagines a proliferation of federal criminal laws).

Wickard achieved its expansion of federal power by interpreting a "commerce" power to cover all acts which have a substantial effect on interstate commerce. By a certain logic, growing wheat in one's backyard would have a substantial effect, if everyone did it. Seemingly, anything Congress wanted to regulate was fair game. Lopez was the first deviation from this open-ended legal theory. That decision found that the Gun Free School Zones Act violated the Commerce Clause. Lopez gave indications that it was a purely symbolic decision, however. The Court left open a very wide loophole for Congress, implying that sufficient findings by Congress that commerce would be affected by the regulated activity could save a statute. Lopez does have some influence: Justice Ginsburg's recent May 22 decision in Jones v. United States questioned the constitutionality of a federal arson statute if applied to a non-commercial residence. But Lopez is typically viewed as a holding without teeth.

Morrison changes all of this. The Court holds that it is a judicial question — not a legislative one — whether the Commerce Power enables Congress to enact a law. Justice Rehnquist declares, "We accordingly reject that argument that Congress may regulate noneconomic, violent criminal conduct based solely on that conduct's aggregate effect on interstate commerce. The Constitution requires a distinction between what is truly national and what is truly local." After fifty years, this reading of the Commerce Clause is news. Justice Souter worries that since "formalistically contrived confines of commerce power in large measure provoked the judicial crisis of 1937, one might reasonably have doubted that Members of this Court would ever again toy" with such theories. One imagines, perhaps, an outraged President Gore attempting a court-packing scheme.

The novelty of the Morrison majority is its courage in recognizing that limits to federal regulation exist, even though these limits have been so long ignored. Morrison is not decided by activism, however. Nothing was overruled, no doctrine created. A sweeping Commerce Clause is still with us, despite the uproar from the Left. What galls is the willingness to say "no further." The Rehnquist Court's decision rejects the reasoning which would extend the "substantial effects" view of Commerce Clause regulations to non-commercial activities whenever commerce could be affected. Wickard remains, because it allegedly addressed commercial activity. To describe a rape, on the other hand, as commercial, would mean that the Commerce Clause gave Congress power over anything it wishes. Everything might be called commercial. Justice Breyer proves the point: "Would evidence that desire for economic domination underlies many brutal crimes against women save the present statute?", he asks.

Our legal system is now balanced between two different views of the nature of limited government. The dissenting justices are almost explicit in their belief that congressional power is not limited by its original grant. Contrast Chief Justice Marshall: "The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written." As noted above, Marshall's view has not always prevailed. The dissenters in Morrison declare that the decision will not be enduring, and they may be right. Morrison stands on a legal house of cards, the pinnacle of several contentious five-four decisions. Marshall's premise lasted more than a century, but its new bloom is a fragile one. We should keep in mind that the next President's judicial nominees might disagree with him.

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