There are numerous areas where the Rehnquist era has improved American jurisprudence, but the most important achievement of Rehnquist’s tenure is taking the first step to save the Constitution as a serious limit on the power of the Federal Government. Before the Rehnquist Court, it was orthodoxy that Congress could achieve any end it wanted under its Commerce Clause power. From stopping a single farmer from growing food for his own farm and his own family to enforcing esoteric endanger species protections, the Commerce Clause had become a panacea of unlimited federal power.
In 1995, the Rehnquist Court, for the first time in almost seventy years, struck down a law as exceeding the Federal Government’s power under the Commerce Clause. In U.S. v. Lopez, the Federal Government had the gall to argue that stopping people from bringing guns into school zones was part of the Government’s power over interstate commerce! The Court took a further step in this same direction in U.S. v. Morrison, when it rejected the Federal Government’s claim that its power over “interstate commerce” allowed it to criminalize domestic violence.
The work the Chief and his fellow conservatives on the Court started to save the Constitution is still in its infancy. Lopez and Morrison are still only blips, and as the Raich case illustrated this year, the Court’s left wing has no intention of abandoning the idea that Congress’ power under the Commerce Clause is virtually unlimited. The important work of future justice Roberts and whoever replaces the Chief will be to guide the Court into respecting the role of the national government as one of limited and enumerated powers. I will end with Rehnquist’s simple statement from U.S. v. Lopez:
We start with first principles. The Constitution creates a
Federal Government of enumerated powers.
The greatest honor the Supreme Court can do to Rehnquist’s work and to the Constitution our framers created is to start taking that truth seriously again.