- The Washington Times - Sunday, September 11, 2005

William Rehnquist’s most important accomplishment on the Supreme Court was to restore a modicum of respect for constitutional limits on federal authority — not the limits imposed by specified individual rights but the more fundamental and potentially more consequential limits imposed by unspecified congressional powers. Justice Rehnquist’s signal contribution was to remind Congress, his colleagues and the nation that such powers do not exist.

“We start with first principles,” the chief justice wrote in the 1995 decision U.S. v. Lopez, which overturned the Gun-Free School Zones Act of 1990. “The Constitution creates a federal government of enumerated powers.”

Those were thrilling words for critics of an ever-expanding federal government accustomed to a Congress that felt free to legislate on virtually any subject, citing its power to regulate interstate commerce as an all-purpose justification. It seemed the Supreme Court had rediscovered that congressional legislation has to be authorized by the Constitution.

Judge John G. Roberts, whom President Bush has chosen to take Mr. Rehnquist’s place as chief justice, has indicated sympathy for that idea — which alarms not only the Democrats but Senate Judiciary Committee Chairman Arlen Specter, Pennsylvania Republican, who is expected to press Judge Roberts on the issue during his confirmation hearings. Indeed, it is doubtful a single member of Congress — except Rep. Ron Paul, Texas Republican — truly wants a Supreme Court that is serious about the Constitution’s limits on congressional power.

But defenders of Leviathan need not worry much, even if Judge Roberts proves as interested in reviving federalism as his mentor and predecessor. The Supreme Court has been hesitant to continue in the direction signaled by Lopez. Just one justice, Clarence Thomas, has shown the stomach for following it to its logical destination, where regulating interstate commerce actually means regulating interstate commerce.

In Lopez, the government said it meant prohibiting possession of a gun in or near a school, a claim five justices rejected.

“If we were to accept the government’s arguments,” Chief Justice Rehnquist wrote in the majority opinion, “we are hard-pressed to posit any activity by an individual that Congress is without power to regulate.”

Five years later, in U.S. v. Morrison, the same five-justice majority overturned a provision of the Violence Against Women Act that allowed victims violence motivated by sexual antagonism to sue their attackers in federal court. “The Constitution requires a distinction between what is truly national and what is truly local,” Justice Rehnquist wrote.

The weakness of the new federalist majority became clear this year in Gonzales v. Raich, a case in which Justices Antonin Scalia and Anthony Kennedy switched sides to uphold federal authority to arrest patients who grow marijuana for their own medical use, even in states where such use is legal.

Chief Justice Rehnquist, to his credit, continued to insist upon “a distinction between what is truly national and what is truly local,” as did Justices Thomas and Sandra Day O’Connor.

Given the outcome of that case, the prospects are not bright for a newly constrained federal government. But if Judge Roberts is as supportive of that goal as Mr. Specter fears and if Mrs. O’Connor’s yet-to-be-named successor is similarly inclined, there is hope of luring Justices Scalia and Kennedy back to a majority that tries to prevent the Commerce Clause from swallowing the rest of the Constitution. The next major test is a case the court will hear this fall involving a Justice Department attempt to override Oregon’s assisted suicide law.

It is plain from the Bush administration position in that case, in Raich and in controversies ranging from treatment of fetuses to treatment of adults in persistent vegetative states that the president has little interest in preserving federalism, despite his promise to appoint justices who apply the Constitution as written instead of rewriting it to suit their policy preferences.

A president who thinks the federal government should oversee every school system in the country and pay for every senior citizen’s prescription drugs is clearly not eager to pursue the Framers’ vision of a political system in which such matters “are reserved to the states respectively, or to the people,” as the nearly forgotten 10th Amendment says.

But given Mr. Bush’s apparent preference for nominees who can be readily confirmed because there is little solid evidence of their views, perhaps he will accidentally deliver on his promise.

Jacob Sullum is a nationally syndicated columnist.

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