After more than three decades on the Supreme Court, Chief Justice William Rehnquist lost his bout with thyroid cancer and died over the Labor Day weekend. His death comes on the heels of Justice Sandra Day OConnors retirement and the nomination of John Roberts to replace her. Acting swiftly, the White House announced that it was now nominating Roberts as chief justice. As President Bush prepares to nominate a second candidate, in addition to Roberts to serve on the High Court, it is appropriate for Americans to reflect upon Chief Justice Rehnquists legacy.
Some years ago, Rehnquist averred that he would like to be remembered as a good administrator. By all accounts, he took great pride in the smooth functioning of the Court during his two decades as chief justice. Despite his wishes, William Rehnquist will not be remembered for the operation of his Court, but rather for his defense of the reserved powers of state and local government. Without question, the Rehnquist Court will forever be associated with federalism.
The Tenth Amendment to the Constitution provides that the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people. The premise behind the amendment is that true self-government is best carried out at the state and local level. At these levels of government, the people can directly participate in government, monitor those entrusted with power, and make their voices heard. At least since the New Deal, the Tenth Amendment had been edited out of the Constitution by various court decisions. Lamenting these years of neglect, Rehnquist made clear early on that he intended to revive the Tenth Amendment as a restriction on congressional power.
In 1976, just four years after President Nixon appointed him to the Court, Rehnquist wrote the first modern High Court decision to limit congressional legislation under the Commerce Clause. Prior to this National League of Cities v. Usery (1976) opinion, Congress assumed that it could legislate upon any matter if it claimed the object of legislation touched or concerned interstate commerce. Hence, under the guise of commercial regulation, Congress intruded into myriad areas of traditional state concern.
With Usery, Rehnquist indicated that this era of Commerce Clause carte blanche was coming to an end. Confronting congressional extension of the Fair Labor Standards Acts minimum wage and maximum hour requirements to employees of state and local governments, Rehnquist reasoned that the statute would impermissibly interfere [with] integral governmental functions and that it would significantly alter or displace the States abilities to structure employer-employee relationships. At base, the opinion in National League of Cities recognized the sovereignty of the states and sought to interpose to restore some balance to federal-state relations. It would be the first shot fired in what constitutional scholars have called the federalism revolution.
Although the Court would eventually reverse the Usery decision, this did not stop Rehnquists efforts to respect and protect the legislative powers retained by the states under the Constitution. In 1995, the Rehnquist Court decided United States v. Lopez. This case dealt with the constitutionality of a federal law prohibiting possession of firearms near school premises. The possession of a firearm in school zones, the government contended, could affect the functioning of the American economy by hindering classroom education and thus result in an unproductive workforce. The Rehnquist Court rejected the governments argument, fearing that such reasoning would permit Congress to regulate any activity that it found was related to the economic productivity of individual citizens. The Constitution delegated to Congress only few and defined powers, the Court announced, and these constitutional limits were transgressed by passing a criminal statute and claiming it was a commercial regulation.
During the 1990s, the Rehnquist Court also struck down statutes imposing unfunded federal mandates on the states. Unless Congress provided funding and the states freely accepted the money, the Court held that Congress could not force state officials to implement federal programs. Much to Washingtons chagrin, the Court averred that state officials were not mere instrumentalities of the federal government.
Incrementally, the Rehnquist Court set about limiting federal power; returning true self-government to the state and local level. With the passing of Rehnquist, President Bush has nominated Roberts for chief justice, a jurist who fits nicely into the Rehnquist mold. The President now has a second opportunity to appoint a justice who can continue or end the Rehnquist Courts federalism revolution.
Americans can only hope that President Bush uses this opportunity to nominate a candidate who will continue Rehnquists efforts: one who respects the powers of state and local government and who will take seriously the Tenth Amendments promise of a limited federal government.
William J. Watkins, Jr. is a Research Fellow at The Independent Institute in Oakland, Calif. and author of the Independent Institute book, Reclaiming the American Revolution. He received his J.D. cum laude from the University of South Carolina School of Law and is a former law clerk to Judge William B. Traxler, Jr. of the U. S. Court of Appeals for the Fourth Circuit.
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