Constitutional Opinions /State Your Business
Rabkin, Jeremy
State Your Business by Jeremy Rabkin For the first time in sixty years—in a ruling made all the more remarkable by the little attention it received initially—the Supreme Court has struck down a...
...One hopes the Court will retreat from its own recentcampaigns to standardize state and local policies in the name of civil liberties or "equal protection...
...President Roosevelt responded with his famous Court-packing plan: he urged Congress to create new seats on the Court and then made clear his intention to fill them with more accommodating justices...
...The dissenters in Lopez repeatedly invoked the specter of the Court-packing crisis of the late 1930s, and warned that the Court cannot afford to set itself against the main tides of public opinion...
...The last time the Supreme Court enforced such limits was in the mid-I930s, when it struck down a series of New Deal measures trying to regulate intrastate production of coal, refined petroleum, agricultural commodities, and, in one case, everything produced by "industry...
...The only serious argument against this course is that the world has changed so much since the early part of the century...
...State Your Business by Jeremy Rabkin For the first time in sixty years—in a ruling made all the more remarkable by the little attention it received initially—the Supreme Court has struck down a federal law for exceeding the enumerated powers of Congress...
...There is "excessive entanglement" with religion when public property is used to display a Christmas creche, but not when displaying a Hanukkah menorah...
...C ritics, including the dissenters in Lopez, maintain that the Court now has no firm rules to determine when a matter sufficiently "affects" interstate commerce as to warrant congressional control...
...Just a decade ago, Justice Blackmun's majority opinion in Garcia v. San Antonio Transit seemed to eradicate this notion forever...
...Some skeptics wonder whether the Lopez case will have any effect at all...
...The Clinton administration has already urged Congress to re-enact a new version of this law, citing such "findings" in the preamble of the new law to seduce the wavering justices on the next go round...
...But the point is not what Congress may be allowed to do in the future...
...In conceding as much, Breyer made his opinion vulnerable to Chief Justice Rehnquist's riposte that, using Breyer's mode of reasoning—violence has an indirect effect on learning, learning has an indirect effect on skills, skills affect economic productivity, etc.—nothing would ever prove beyond the reach of congressional control...
...It certainly would not be hypocritical for the Court to pull back in this area while taking a more aggressive stance in policing limits on congressional power in the name of federalism...
...Yet for decades, Congress has turned this around and assumed that a policy won't seem important unless it is federal...
...When the president promises to "reinvent government," and then can't bring himself to push for any serious changes, this sort of discipline looks very attractive...
...No one imagines that the "Constitutional Revolution of 1937" will soon be undone by a counterrevolution from the Supreme Court, cutting back the federal code to its limited scope of the early 1930s...
...Now it is suddenly quite relevant...
...Both approaches would serve the cause of federalism, and both follow what had been the main lines of constitutional doctrine until well into this century...
...Breyer's dissent compiled a stupefying array of data to suggest that violence in schools does indeed have a number of indirect but traceable connections The American Spectator July 1995 55 with the tempo of interstate commerce...
...The Supreme Court has held all of these things in recent years—the latter two in the same confused opinion—and has not been willing to eschew new ventures just because it cannot police them with clear lines...
...federal laws on education now occupy an entire subdivision (Title 20) of the fifty titles in the U.S...
...Even Justice Breyer conceded that a future act of Congress might go too far—it was only that this one hadn't...
...Code...
...A truly federal system allows for diversity in approaches from state to state...
...Don't make a federal case out of it," goes the old saying—the assumption being, of course, that only important matters should be treated as federalcases...
...But at least the doctrine of federalism has been resuscitated...
...Roosevelt appointees seemed content to let Congress decide for itself whether any matter was properly a subject of federal concern...
...In Lopez, for example, Congress was determined to demonstrate that it was "doing something about crime," enacting a law that merely added the stamp of federal authority to gun-control measures already in place in the states...
...At the time, the argument seemed amusing but wildly anachronistic...
...This sort of congressional posturing is precisely what is questioned by the Lopez decision, which insists that "important matters" can be properly reserved for state or local decision...
...This objection is accurate, but hardly devastating...
...Under pressure of this threat, the Court changed course in 1937 and began to endorse major New Deal measures...
...The Court has now invited critics of Congress to argue in the future that the Constitution guarantees a federal structure in which some matters are off-limits to the national government, and reserved solely for the judgment of states and localities...
...Most states, including Texas, where Lopez arose, already have similar legislation on the books...
...The Lopez decision reflects this renewed appreciation for the virtues of federalism...
...The Senate supposedly represents the concerns of the states, so federal courts need never second-guess whether Congress has gone too far in pre-empting state policies with national laws...
...A 1993 op-ed in the Wall Street Journal argued that President Clinton's health-care plan, which required even new-born babies to be enrolled in federally regulated health alliances, went beyond the reach of congressional power to regulate commerce among the states...
...It says that "progress" need not mean marching further and further along a course set by liberal New Dealers...
...The Court insisted that when Congress purports to exercise its power to regulate "commerce among the states," it must confine its attention to matters that are truly commercial and truly cross state lines...
...But it is clearly the dissenters who are out of step with the tide of opinion, still defending the New Deal and the Great Society long after those programs have passed out of public favor F or the new majority in this coun- try, federalism has come to seem an attractive principle because the New Deal vision that had supplanted it for so many decades—a wise and beneficent central government, redistributing rights and resources in the march to equality, smoothing frictions and easing pain nationwide—now seems discredited...
...Rehnquist's opinion emphasizes that education is one of those "areas .. . where States historically have been sovereign...
...It is "advancing religion" to give aid to parochial high schools but not to parochial colleges...
...j ustices Kennedy and O'Connor, in a separate concurring opinion, suggested that Congress might have persuaded them to endorse the school-zone gun ban if it had offered more detailed and serious evidence of the relation between gun violence in schools and economic burdens on interstate commerce...
...Not even the dissenters dared reaffirm the Blackmun doctrine...
...But unlike the activist liberal doctrines of recent decades, federalism is clearly and undeniably a part of the Constitution...
...There is a constitutional "right to privacy" that extends to abortion but does not protect homosexual relations among consenting adults...
...The historic doctrine enshrined in the Tenth Amendment—that Congress may exercise only those powers explicitly delegated to it under the Constitution—has for decades seemed to be a quaint museum piece, akin to the Third Amendment prohibition on quartering troops in private houses (which has never been enforced, but then again has never been violated...
...The Court has launched many strange new doctrinal initiatives in recent decades, and the demarcations in them can be awfully blurry...
...It shows the Court may, after all, be moving with the new tide in American politics...
...In the U.S...
...Maintaining that the courts have no business policing the boundaries of federalism, Blackmun reasoned that the authority or jurisdiction of the states is adequately protected by the architecture of Congress...
...In the following years, as older justices retired, a new generation of Jeremy Rabkin is associate professor of government at Cornell University...
...The decision was supported by only the barest majority (Rehnquist, Scalia, Thomas, Kennedy, and O'Connor), and two of the five did not seem entirely committed to the result...
...This is a remarkable characterization in an era when we have a cabinet-level Department of Education...
...The government has been relentlessly expanding its reach ever since...
...11 56 The American Spectator July 1995...
...v. Lopez decision announced in late April, the Court held that a recent federal enactment, making it a crime to possess firearms within a thousand yards of a public school, was not something Congress could impose, even though states are free to enact such measures...
...Rehnquist invoked a slew of precedents dated before 1937 in his opinion, as if to underscore that even six decades of laxity cannot erase the history and text of the Constitution...
...It argues that the wisdom of the Constitution's framers remains pertinent to our political concerns...
...This view was rejected in the Lopez decision by more than the majority...
...At a time when few Americans believe that experts in Washington have all the answers, local experimentation looks a lot more attractive...
...A federal system puts states in competition with each other, as those with better schools, better services, or lower taxes, draw people and businesses from more poorly managed states...
Vol. 28 • July 1995 • No. 7
