Ever Since the New Deal, when it rubber-stamped bill after bill augmenting the authority of the President and Congress to regulate the states (as well as private activities once controlled only by the states), the Supreme Court has established itself as a champion of the federal government, granting it vast powers over all areas of our national life. Indeed, since the 1950’s the Court has moved beyond being a mere enabler to become a leader in the expansion of federal authority, further eroding the prescribed constitutional allocation of power among Washington, the states, and the people.

Only recently, under Chief Justice William Rehnquist, has the Court come to divide, almost evenly, between those who favor bolstering Washington’s power and those who prefer to devolve greater responsibility to the states or the people. Though it was not much talked about, here was another crucial issue in this year’s presidential election. Should any of the nine sitting Justices retire or die in office over the next four years, the newly reelected Bill Clinton will be in a position to exercise a profound influence on the shape of the American “union” for a generation to come.

A number of recent cases illustrate the almost schizophrenic attitude of the present Court toward the proper division of power among units of government. Without question the most significant is United States v. Lopez (1995).¹ In a five-to-four ruling, Lopez overturned the conviction of a teenager for carrying a concealed handgun to school, an act forbidden by the Gun-Free School Zone Act of 1990. The defendant had challenged the law on the grounds that, in enacting it, Congress had exceeded its authority by usurping a function of government—local law enforcement—which properly belonged to state and municipal authorities. The Supreme Court agreed, holding that the federal gun law, though premised on the Constitution’s commerce clause, “neither regulates a commercial activity nor contains a requirement that the possession be connected in any way to interstate commerce.”

This ruling marks a watershed in the Court’s jurisprudence. (Needless to say, no judgment is here intended on the desirability of allowing guns in schools.) The commerce clause was fashioned by its authors in comparatively modest terms, giving Congress the ability to ensure a single national market. But from the New Deal through the Great Society, it has been invoked time and again as the basis on which federal lawmakers—in violation of the Framers’ design of a national government with enumerated and limited powers—have exercised authority over an extraordinarily wide range of activities bearing little if any relation to interstate commerce.

A high-water mark in this practice came as far back as the famous “wheat” case, Wickard v. Filburn (1942), in which the Court ruled that the federal government could forbid a farmer to grow wheat for his own consumption, on the grounds that he might therefore refrain from buying bread at the market and (if many farmers did the same thing) in this way adversely affect interstate commerce. Many subsequent cases have occasioned even more artful stretching of both logic and law. In Lopez, the Court’s dissenting minority put forth just such a specious chain of reasoning: possession of a gun might lead to use of a gun, which might lead to an interruption in the educational process, which might ultimately affect the quality of America’s future workforce, which might affect our country’s ability to compete in the global economy.

Once upon a time, such an attenuated set of links would almost certainly have been sufficient for something like the Gun-Free School Zone Act to pass muster with the Court; but the Rehnquist Court has now put a new standard in place. Henceforth, in keeping with the common-sense meaning of the words in the Constitution, federal legislation premised on the commerce clause must be linked to an “economic activity” that might “substantially affect” interstate commerce.

Although some liberal legal theoreticians like Laurence Tribe have tended to dismiss Lopez’s significance altogether, others have attacked it as a fundamentally anomalous departure from decades of established precedent. Decades of precedent are certainly at issue. Whether this vast legal-political-regulatory structure will now topple remains an open question. But already in the two years since Lopez was decided, some outcroppings have indeed fallen. In particular, a number of federal regulatory statutes and programs in widely different areas of the law have been called into doubt, and several lower courts have applied Lopez to limit federal power.

In one case decided this past May, for example, a federal district court in Alabama held that the federal “Superfund” statute, designed to facilitate the cleaning-up of contaminated land sites, could not be supported in those instances where no interstate commerce was at issue, as, for example, when the site in question no longer had active industrial operations. The cleaning-up of real property, the court noted, has “been traditionally a local matter falling under the police power of the states.” In another recent decision, Brozonkala v. Virginia Polytechnic and State University (1996), a federal district court, again drawing on Lopez, held that provisions in the Violence Against Women Act which gave additional standing in federal court to victims of sexual assault were also an impermissible extension of the commerce clause. Congress, the judge ruled, could not apply that clause to intrastate activity that was not itself commercial in nature.

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In addition to Lopez, a number of other important decisions illustrate the present Court’s resolve (if by a slim margin) to set aside earlier judgments and move to restore rights and powers to the states. In New York v. United States (1992), for example, the Court breathed fresh life into the Tenth Amendment when it barred Congress from compelling state legislatures to implement certain federal environmental requirements.

The Tenth Amendment was originally drafted with the unambiguous intention of reserving to the states, or to the people, any powers the Constitution had not specifically delegated to the federal government. In line with this understanding, the Court made it quite clear in New York v. United States that state governments cannot be required to act as local administrative agents for the federal government, nor can state legislatures and bureaucracies be commandeered to serve as its enforcement mechanism. This is a significant turn of the wheel. As recently as 1985, in Garcia v. San Antonio Metropolitan Transit Authority, the Court had rendered the Tenth Amendment all but superfluous by ruling that states were subject to the provisions of the Fair Labor Standards Act just like any other employer, and that it was exclusively up to Congress, not the courts, to determine the extent of federal power over the states.

Not only does New York v. United States part company with Garcia, it may conceivably spell the beginning of the end of the entire system—indispensable for a variety of federal programs—by which Washington imposes mandates on the states to carry out favored federal policies. Legislation like the Clean Air Act and the Clean Water Act—to take just one area of regulatory law—is based almost entirely on the assumption that states will adopt plans and programs to meet standards set by the federal Environmental Protection Agency. Up until now, these laws have survived challenge on the theory that states have the “choice” either of proceeding on their own to fulfill Washington’s wishes or of having a federal program implemented for them by federal officials. With the new drift of the Court, this non-choice (always accompanied by a stiff price tag) may become a thing of the past.

In a related move, the Court has also imparted new vigor to the Eleventh Amendment, which shields states from suits brought in federal courts by private parties. As recently as 1989, a closely divided Court had ruled that Congress, acting under the powers offered (again) by the commerce clause, might subject states to such lawsuits. But this year, in Seminole Tribe of Florida v. Florida, drawing implicitly on Lopez and explicitly on the Eleventh Amendment, the Court overruled its own precedent.

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But all this, heartening as it may be, is only part of the story. Not only has the Court been closely divided in each of the cases discussed above, in a number of others it has exhibited a remarkably different attitude toward the powers of the federal government, and especially of the federal judiciary.

There is, for example, U.S. Term Limits, Inc. v. Thornton (1995) in which, by a vote of five to four, the Court struck down an amendment to the Arkansas state constitution that imposed term limits on its congressional delegation, holding that the qualifications for members of Congress are stated in the U.S. Constitution and the states retain no residual power to add or subtract from them. In reaching this conclusion, the Thornton majority effectively adopted the presumption that what the Constitution does not specifically allow is forbidden.

But as Justice Clarence Thomas pointed out in his dissenting opinion (joined by Justices Antonin Scalia, Sandra Day O’Connor, and Chief Justice William Rehnquist), the Framers’ presumption was against federal and for state power: “Where the Constitution is silent about the exercise of a particular power—that is, where the Constitution does not speak either expressly or by necessary implication—the federal government lacks that power and the states enjoy it.”

If Thornton is one indication that a majority of the Court can still be mustered for a centralizing decision, another is Romer v. Evans. Decided in May of this year by a vote of six to three, the Romer decision struck down an amendment to the Colorado constitution adopted by a statewide referendum—Amendment 2—which prohibited any state or local body from passing a law using “sexual orientation” as a basis for “protected status or claim of discrimination.” The Court held that by impermissibly burdening the ability of homosexuals to obtain certain government benefits—i.e., the right to bring suit under state and local antidiscrimination laws—the amendment violated the equal-protection clause of the Fourteenth Amendment.

As Justice Scalia maintained in a scathing dissent, however, Romer represents the worst sort of judicial policy-making. The Court first assumed (rather than demonstrated) that the Colorado amendment was based on public hostility to homosexuality (as opposed, say, to a genuine desire to preserve traditional values), and then that this hostility was wrong, and only then did it formulate a legal rationale for striking down the amendment and sweeping aside the will of the majority of Colorado’s voters. As an example of law written from the bench, Romer is in fact fundamentally akin to Roe v. Wade, where the Court, abandoning any effort actually to interpret the Constitution, first determined that women should have the right to decide whether or not to carry a child to term and only then formulated a legal rationale to support its determination.

Decisions like Roe and Romer have the effect of removing explosive issues from the political arena and eliminating the possibility of arriving at a consensus through the democratic processes established by the Constitution—processes which, by their nature, facilitate compromise and accommodate local conditions and attitudes. The inevitable result of such judicial policy-making is a radicalization of debate and, ultimately, a loss of confidence in democratic institutions themselves. There is no better example of this phenomenon than the descent of the abortion debate to a point where civil discourse has been replaced by sloganeering, shouting, and even terror.

But Romer does other damage as well. Its broad implication is not only that statutes have to be rationally related to a proper governmental purpose—uncontroversial in itself—but that they also cannot disadvantage a particular group for reasons the Court happens to consider wrongheaded. By importing the flawed “we-know-it-when-we-see-it” principle familiar from the obscenity debate, this effectively allows the courts to rule not merely on the constitutionality of legislative acts at the state level but upon their morality as well—a morality determined, capriciously, by the courts themselves.

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What of the future? The Supreme Court has been set on its present uncertain course in part by catching a good gust of the shifting political winds, but much more directly as a result of the change in its ranks and, indeed, the ranks of the entire federal judiciary over the last twelve years of Republican-party rule. Between them, Presidents Reagan and Bush appointed more than half the judges serving on federal courts. Out of the nine Supreme Court Justices today, three—O’Connor, Scalia, and Anthony Kennedy—were appointed by Reagan, while two—David Souter and Clarence Thomas—were appointed by President Bush. In addition, William Rehnquist was promoted to Chief Justice by Reagan.

On many issues involving the scope and extent of federal power, there are four Justices who generally accept the Constitution’s limits and are prepared to vindicate the position of the states within our federal system. Another four, including the two appointees from President Clinton’s first term—Ruth Bader Ginsburg and Stephen Breyer—can be counted on to defend the power of the federal government, often using the elastic commerce clause as their wedge. Then there is a swing voter, Anthony Kennedy, who went with the majority in Lopez but defected to the other side in both Thornton and Romer.

In sum, the Court is very narrowly balanced on this key issue, as indeed it is on others from affirmative action to free speech and beyond. Where it, as well as the lower courts, will go from here depends in large measure on the nominees who will be selected to fill prospective vacancies, on the political character of the man who will be selecting them, and on the disposition of the Senate which will be asked to confirm them.

¹ For an extended discussion of Lopez within the context of the Founding Fathers' conception of federalism, see Wilfred M. McClay, “A More Perfect Union?” COMMENTARY, September 1995.