Posted on 09/10/2005 10:49:23 AM PDT by RWR8189
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 14th 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 I 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 14th Amendment.
The Founders' plan was more or less intact until the 1930s, when Franklin D. Roosevelt and the New Deal Congress
(Excerpt) Read more at opinionjournal.com ...
Good article. Let's hope for the best.
Absolutely. But to speak ill of the dead, this are further posthumous attempts try to unify his scattershot rulings into a cohesive philosophy of 'new federalism.' Rehnquist was, while not an O'Connor, often 'pick-offable' as an additional justice ruling for expanded federal power.
We owe Rehnquist much, for keeping the ideal of judicial restraint alive in an era when the notion was even dead in the heart of the President that appointed him. But he was no conservative judicial sage--he was every bit the Republican, and his rulings certainly seemed to be tailored to avoiding Supreme Court review instead of restricting federal growth.
We could certainly have done worse than the man, and I hope he rests in peace. But I hope we do better in Roberts, and while I think we pragmatically may have expected no better than a Roberts to be appointed as O'Connor's replacement, the base deserves an ideologue be appointed as Rehnquist's. Especially with 2006 looming and the Congress in contention.
uh, correction, 'these are,' not 'this are.'
So, the old foederalism was to ensure the general government's power over the States and the new federalism is to restore power to them?
"he was every bit the Republican, and his rulings certainly seemed to be tailored to avoiding Supreme Court review instead of restricting federal growth."
Agreed.
"the base deserves an ideologue be appointed as Rehnquist's. Especially with 2006 looming and the Congress in contention."
Absolutely. It is so rare nowadays for anything to go right in D.C.. This is Dubya's chance to mold the court
along lines that we can embrace. Time will tell, and quite soon.
Would that were the case. Certainly, much of Rehnquist's voting worked out that way. But the problem is that his version of federalism maintained central authority in a way that allowed direction of state efforts, instead of outright saying the federal government could not involve itself in areas that were not specifically delegated without a compelling purpose that WAS specifically delegated AND an overriding necessity to involve itself to achieve that directly delegated power.
But then, he was only one man. I see him as a Quixote who morphed into an incrementalist as time went on. Lord knows he tried often. I just wish he'd done more to justify restraint in 'rights' creation constitutionally, from a strict constructionist bent, instead of via flag-waving, especially his mindbendingly awful opinion in Bowers v. Hardwick.
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