Commentary

Rehnquist’s Federalist Legacy

This article first appeared on FoxNews.com on Sept. 9, 2005.
Chief Justice William H. Rehnquist, who passed away Sept. 3, will be remembered as one of the Supreme Court’s most influential leaders. Perhaps his most important departure from previous Court practice was his revival of the principle that the Constitution limits federal government power in order to protect federalism.

In remembering Rehnquist’s legacy on the Court, and with an eye towards John Roberts’ confirmation hearings next week, liberals should join conservatives in seeking to protect and extend this important aspect of our Constitution.

From the 1930s until 1995, the Supreme Court implausibly held that the constitutional provision granting Congress the power to “regulate Commerce … among the several States” gave the federal government virtually unlimited power to regulate anything that might conceivably have even a slight impact on commerce. This dubious conclusion flew in the face of both constitutional text and common sense.

If the Commerce Clause gives Congress unlimited authority, then why does the Constitution grant Congress a long list of other powers? Most of them, such as the power to raise armies, or the power to regulate foreign trade, would be utterly superfluous if the Court’s pre-Rehnquist interpretation of the Commerce Clause were correct.

Writing for the Court in the 1995 case, United States v. Lopez, Rehnquist amended this decades-old judicial error. He reasserted the principle that the Constitution gives Congress only a limited list of “enumerated powers,” while also leaving a significant sphere of state authority into which the federal government cannot intrude. Rehnquist later reaffirmed this conclusion in his 2000 opinion for the Court in United States v. Morrison.

In other cases, the Rehnquist Court limited Congress’ ability to “commandeer” state governments to advance federal policies and (in my view erroneously) constrained Congress’ power to enable individuals to sue state officials.

Many liberals saw the Rehnquist Court’s federalism decisions as a thinly veiled attempt to further conservative policies. But in recent years, some have learned the lesson that federalism isn’t just for conservatives. On numerous occasions, the Bush administration and Republicans have undermined limits on federal power for the purpose of promoting conservative policies. To cite a few examples, Republicans have intruded on states’ traditional control over education policy with the No Child Left Behind Act, successfully sought to override state laws legalizing medical use of marijuana, and are currently litigating a case before the Supreme Court that would enable the federal government to override Oregon’s attempt to legalize assisted suicide.

In an era when control of Congress and the presidency will often be in the hands of conservative Republicans, constitutional limits on federal power benefit liberals at least as much as they do conservatives. Many liberal policies—most notably gay marriage—have far better political prospects in “blue states” than in Washington. But such states cannot pursue them if they stand to be overridden by a Republican-dominated Congress.

Limiting federal power has advantages that go beyond particular liberal or conservative policy agendas. In a diverse nation, federalism enables us to agree to disagree on painful issues that might otherwise tear us apart. Allowing states to go their own way on key issues ensures that a wider range of citizen preferences can be satisfied than if all major issues are subjected to a “one- size-fits-all” federal solution. Those deeply dissatisfied with their own state’s policies have the option of moving to another state with laws more to their liking.

By contrast, dissenters from federal policy can only escape its reach if they leave the United States entirely.

In addition, the decentralization enabled by limiting federal power helps promote competition between state governments from which we can all benefit. States with dysfunctional or unpopular policies risk losing residents and businesses to other states with more attractive approaches. If federal power is not limited, however, states with poor policies can often undermine such competition by lobbying for federal laws that force other states to follow the same flawed policies as they have.

As Rehnquist recognized, respect for federalism does not mean that there is no legitimate role for federal authority in protecting fundamental individual rights and advancing national interests. It does, however, imply that the Constitution should not be construed to give the federal government virtually unlimited power.

Unfortunately, Rehnquist’s federalism legacy has been undermined by the Supreme Court’s recent decision in Gonzales v. Raich, which held that federal law legitimately supersedes a California law legalizing medical marijuana and gave the Commerce Clause an extremely broad interpretation. Although many would expect a conservative justice to be unsympathetic to marijuana users, Rehnquist dissented in Raich, joining an opinion by recently retired Justice Sandra Day O’Connor.

President Bush has nominated John Roberts to be the next chief justice. Both liberals and conservatives should hope that Roberts shares Rehnquist’s appreciation of the need for constitutional limits on federal power.

Ilya Somin is assistant professor of law at George Mason University School of Law.