The Short Life of Rehnquist’s Long View - (SCOTUS "federalist five" retreating?)

CENTER FOR INDIVIDUAL FREEDOM.ORG ^ | JUNE 9, 2005 | Editor

[CHARLITE]

Chief Justice William Rehnquist may or may not retire in the next few weeks, but a U.S. Supreme Court decision handed down Monday suggests that the curtain has already fallen on his jurisprudential legacy.

Academics and commentators, like American Enterprise Institute Scholar Michael Greve, credit the Chief Justice with “resurrect[ing] federalism as a judicially enforceable constitutional principle.” But, during the past several terms, the Chief’s five-justice coalition — aptly referred to as the “federalist five,” comprising Chief Justice Rehnquist and Justices Sandra Day O’Connor, Antonin Scalia, Anthony Kennedy and Clarence Thomas — has been unable to complete the constitutional paradigm shift in re-establishing state sovereignty as a significant limit on federal power.

Just a decade ago — a relatively short time in the Supreme Court’s jurisprudence — Chief Justice Rehnquist’s vision of federalism seemed to have become orthodoxy when he announced the High Court’s decision striking down the federal Gun-Free School Zones Act in a landmark Commerce Clause case, United States v. Lopez. In that case, the “federalist five,” led by the Chief, noted that the “Constitution creates a Federal Government of enumerated powers. As James Madison wrote, ‘the powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.’” And, as a result of those “first principles,” the federal government could not properly police local schools, even for firearms, since the “possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce.”

Indeed, according to the Chief, “to uphold” the Gun-Free School Zones Act, the justices “would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States.” This, the “federalist five” was “unwilling to do” because the “Constitution mandates … withholding from Congress a plenary police power that would authorize enactment of every type of legislation.”

Fast forward ten years, and the federalism revolution that Chief Justice Rehnquist led — and that was to be his constitutional legacy — now seems to be in full retreat.

Monday, a six-justice majority — including Justices Scalia and Kennedy of the “federalist five” — ruled that Congress could constitutionally and categorically prohibit “the intrastate manufacture and possession of marijuana” even when explicitly and legislatively permitted by a state in cases of medical necessity. Never mind that the activity was wholly local, with the drug being produced, possessed and consumed in California, never entering interstate commerce or even intrastate commerce. Never mind that Californians had specifically enacted their own law allowing for the production, possession and consumption of marijuana by those with an approved and prescribed medical need. In other words, never mind the Commerce Clause’s enumerated limit on federal legislative and regulatory power that was designed to protect a state’s sovereign dignity.

Thus, Monday’s decision marked the unmistakable counter-revolution that is being fought to undo the Chief Justice’s constitutional accomplishments limiting federal power and promoting states’ rights. In fact, with the exception of noticeable age, a few gold stripes on his robe and a couple of colleagues joining him, Chief Justice Rehnquist was in the same position on Monday, announcing the decision in Gonzales v. Raich as he was thirty years ago — in dissent, arguing that a state has a constitutional right to be free from the federal government reaching beyond its enumerated powers.

It now seems as though very little has changed with regard to federalism since Chief Justice Rehnquist joined the High Court in 1972. Surely the Chief wishes that Duke Law Professor H. Jefferson Powell had been correct when he observed two years ago that the Chief “shifted the center of the discussion so far it would take a long time to shift it back. He took the long view, and he has won.” Unfortunately, based on Monday’s decision Chief Justice Rehnquist’s long view of the Commerce Clause has been short lived.

[BlackElk]

Druggie heartbreak and frustration masquerading as constitutional principle. This decision simply renews a concededly silly decision of the New Deal era court in which an 8-1 majority of SCOTUS decided that a farmer had violated fedregs by growing wheat on his own farm, made into flour by his own wife on his own farm, baked into bread by his own wife on his own farm and fed by her only to him, herself and their own children on his own farm where those children lived.

According to FDR's SCOTUS, the interstate commerce clause justified punishing the farmer since he might otherwise have bought bread commercially produced in another state and Congress cannot be toooooo careful in tolerating anarchy.

As a general proposition, feeding one's family would seem to be even more important than accessing one's favborite hallucinogens under whatever concocted excuse. In a democratic republic such as ours, the remedy for those wanting to access maryjane on whatever excuse would seem to lie with persuading the president and the Congress (or a super majority of Congress to override a presidential veto) on a federal level of the "need" to advance the druggie agenda.

Just because SuperSCOTUS (then consisting of Black and White and the seven shades of gray) stepped in in Roe vs. Wade to cram abortion down the throats of citizens of fifty states whether they liked it or not (resulting in 45+ million sliced, diced and hamburgerized innocent dead babies) does not mean that SuperSCOTUS will fly in to save the day on every nutcase libertoonian crusade.

They are not done yet. "Constitutional rights" to: Prostitution? Narcotics? "Marriage" of man and German Shepherd (of whatever, ummm, gender), "marriage" among twelve "partners" of whatever variety of species? Mandatory veterinary care policies and Social Security survivor's benefits provided by government or private employers for furball significant others??? North American Human/Lizard/Canary/Fish Love Association????? The possibilities are truly endless.

All you need is a lawyer, his/her retainer, an entry fee and a dream. Oh, and a brainless judge yearning to be avante garde, but I repeat myself. America, is this a great country or what??????

As to federalism, not to worry, reinforcements are on the way to renew or take over various seats of the octogenarian deaf, dumb and constitutionally blind SCOTUS members. They will likely not only reinforce actual federalism but actually restore the power of state legislatures to put a stop to baby-killing or of state courts to create lavender "marriages." They cannot do any worse than the present SCOTUS other than Rehnquist, Thomas and Scalia.

Peace, love and fiddlesticks!

[onyx]

This is over my pay grade, but as always, I enjoyed your comments and thank you for the ping. Sincerely, your fan, onyx.

[etcetera]

At what point do the people get to demand a SCOTUS that is up to the task? If these judges aren't doing their job, shirk their responsibilities, and bungle the law, who gets to fill out their evaluation forms?

ALL judges must be elected. Let them face the people they would rule.

[CHARLITE]

I loved your entire spirited, indignant rant, BlackElk, and your "grande finale" is magnificent. It gives me hope!

"As to federalism, not to worry, reinforcements are on the way to renew or take over various seats of the octogenarian deaf, dumb and constitutionally blind SCOTUS members. They will likely not only reinforce actual federalism but actually restore the power of state legislatures to put a stop to baby-killing or of state courts to create lavender "marriages." They cannot do any worse than the present SCOTUS other than Rehnquist, Thomas and Scalia."

Just imagine how we could "go back to basics" and restore order, liberty and enjoy the true, living meaning and intention of our Founders, if all 9 justices were like the above three shining lights!!

Char :)

[Tarkin]

"Druggie heartbreak and frustration masquerading as constitutional principle. This decision simply renews a concededly silly decision of the New Deal era court in which an 8-1 majority of SCOTUS decided that a farmer had violated fedregs by growing wheat on his own farm, made into flour by his own wife on his own farm, baked into bread by his own wife on his own farm and fed by her only to him, herself and their own children on his own farm where those children lived."

. The decision that you're talking about was Wickard v. Filburn, and it was actually unanimous (with even Justice Roberts joining the majority). Of course it was incredibly stupid and gave the Congress power to legislate absolutely anything (as long as it's not abortion, that is) but unfortunately it is going to be very hard to reverse it.

[Tarkin]

Yeah, so let's dream. A Supreme Court consisting of: Rehnquist, Scalia, Thomas, Bork, Owen, Brown, Luttig, Estrada and, say, Ginsburg :-). After all we need somebody to write dissents :-D.

[ninenot]

Druggies or not, Scalia is showing serious and undesirable "positivist" tendencies.

IOW, since he doesn't like weed, the case went to the Commerce Clause.

Thomas told him what he could do with THAT opinion...

[BlackElk]

I can see both sides whatever I have posted but I bet this case would have gotten a LOT less attention if it were about a bottle of ketchup or a loaf of bread rather than the desires of some for getting the camel's nose into the tent on legalizing weed.

Other implications: Why is it the fedgov's bidness that Oregon wants to require doctors to help people suicide? (Because of 14th Amendment due process clause) Or that ILL-inois under Blago wants to require Catholic pharmacists to dispense abortifacient "birth control pills" or instant abortions in the form of "morning after" pills? (14th Amendment "incorporation" theory guaranteeing to pharmacist a very broad freedom of worship (including non-intrusive practice of morality and no, Ms. "Need an Abortion" does NOT have the right to enslave the moral pharmacist into her scheme nor can she require the unwilling grocer to sell her bananas and neither does Blago have a role as to either).

Sometimes even the generally useless fedgov can be useful in suppressing and criminalizing atrocities.

On the other hand, positivism is certainly a grave mischief to be suppressed as well.

[BlackElk]

Whoops!!!! Thanks for the correction.

What was the case in which Justice McReynolds, as senior associate justice reserved his opinion until all others were delivered and then stood up and announced his resignation rather than make believe that the SCOTUS was still rational? It was during WW II and I thought it was the case we are discussing but I no longer have easy access to my law library (stored in the basement since I retired).

Confusion is easy (in addition to the elk's old age) since there were so many asinine New Deal era decisions of SCOTUS to choose from.

[BlackElk]

Well, I am not getting any younger (sigh!) but, as you can see, my heart and optimism are in the right place.

[BlackElk]

Awwwwwww (covers blushing face with hooves), thanks for your kind remarks!

[sittnick]

Or that ILL-inois under Blago wants to require Catholic pharmacists to dispense abortifacient "birth control pills" or instant abortions in the form of "morning after" pills?

In the case of Slobodan Blagojevich, his "Executive Order" runs directly counter to state law: "his actions violate the Health Care Right of Conscience Act by compelling pharmacy owners to carry such drugs. That statute makes it unlawful for any public official to discriminate or punish any person who refuses to 'participate in any way in any particular form of health care services contrary to his or her conscience.'

(from the Pharmacists for Life website, http://www.pfli.org/# )

[ninenot]

As to the several States, they are entitled to have Constitutional protections of religion, life, etc., etc. Seems to me that in the States, "strict" requirements can be emplaced on legal argumentation which derogates human life.

And, of course, if they don't, one can move to the State which DOES. Not exactly a comforting thought, but one which is interesting.

Utilization of the 14th for all ills (real or imagined) inevitably leads to Federalization of what is properly State general policing powers--and Orwell wrote about that.