Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: MONDAY, June 26, 1995 TAG: 9506260024
SECTION: EDITORIAL PAGE: A5 EDITION: METRO
SOURCE: HERMAN SCHWARTZ
DATELINE: LENGTH: Medium
On April 26, in U.S. vs. Lopez, the court's five conservatives struck down a federal law forbidding guns within 1,000 feet of a school. Because education was not considered an essentially economic activity, the court required Congress to demonstrate substantial links between guns in schools and interstate commerce. It was the first interstate commerce law struck down since 1936.
The court apparently did not care that nearly all guns in schools come from out of state and that everyone agrees that the epidemic of gun violence in schools often makes education impossible, weakening our economy. In an opinion reminiscent of the anti-New Deal Supreme Court of the 1930s, Chief Justice William Rehnquist imposed conditions on the exercise of federal authority that will severely hamper future congressional efforts to deal with the environment, safety, crime and other ``noneconomic'' matters that vitally affect the national economy.
This seismic shift toward states' rights repeated itself in the conservative dissent to U.S. Term Limits vs. Thornton, announced May 22. The majority decision itself was a victory for federal government supporters: The four liberal justices, joined by Justice Anthony Kennedy, denied states the power to impose term limits on United States senators and representatives. And this result was not surprising: Members of Congress act for the nation as a whole; their qualifications should be uniform. The framers rejected such limits, and no court majority has ever allowed states to impose them independently.
But current court conservatives see it differently. Justice Clarence Thomas, their spokesman, theorized that, while states may do anything not explicitly forbidden to them, the federal government is sharply limited. Unless the Constitution gives the federal government a power, ``either expressly or by necessary implication,'' Thomas wrote in his dissent, ``the federal government lacks that power and the states enjoy it.'' Thus, states can add anything they want, Thomas reasoned, tossing aside 175 years of constitutional history.
Conflict between federal and state power is nothing new. It was built into our system. In our early years, state power was dominant. The Civil War, however, began the shift to federal power, and the 20th century, particularly the Income Tax Amendment, the New Deal and the imperatives of America's international position, completed the process.
The shift was inevitable. A superpower of 250 million people could not operate as if it were still small, largely agricultural and isolated. Nevertheless, the romance with states' rights has continued, usually out of expediency. When state officials want to block federal civil rights or environmental efforts, the states' rights banner is vigorously waved. It is quietly put away, however, when states want something from the federal government.
In the last two decades, the hostility toward Washington, encouraged by the Republican Party's opposition to federal social and economic programs, has brought states' rights into special favor. The Supreme Court's conservatives, now mostly George Bush and Ronald Reagan appointees, have joined in with paeans of praise for state governments as the source of virtually all public virtue.
The truth is, of course, otherwise. State governments can be reactionary, corrupt and incompetent. If the Southern states had been left alone, for example, Jim Crow would probably still be the law. Elsewhere, racist, anti-choice, anti-gay, anti-environment and anti-labor forces have often dominated state and local governments.
How far the court's states' rights campaign will go is unpredictable. The court has rarely carried out the logical implications of its declarations, for most judges are cautious pragmatists. And Thomas' term-limits opinion is sufficiently ambiguous to leave a good deal of federal authority intact.
But, ultimately, judicial curtailment of federal power seems inevitable. It could be a radical cutback if a conservative Republican wins the 1996 presidential election and adds to the Rehnquist-John Scalia-Thomas bloc. If that happens, we may be back to the pre-New Deal Constitution, leaving America much poorer, materially and morally.
Herman Schwartz is a professor of constitutional law at The American University in Washington. He wrote this for Newsday.
L.A. Times-Washington Post News Service
by CNB