ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Sunday, April 21, 1996 TAG: 9604230015
SECTION: HORIZON PAGE: 1 EDITION: METRO
DATELINE: WASHINGTON
SOURCE: LINDA GREENHOUSE THE NEW YORK TIMES
For much of his nearly quarter century on the Supreme Court, William Rehnquist was the outrider. Often in dissent, he traveled far from the pack, tracing a singular path across a constitutional landscape that in his view was strewn with monuments to the modern court's errors.
Prominent among these were the court's precedents elevating the power of the federal government at the expense of the individual states.
Now approaching his 10th anniversary as chief justice, Rehnquist began to put his years as a lone dissenter behind as Presidents Ronald Reagan and George Bush reshaped the court around him.
These days, he is the general in charge of a constitutional war along the federal-state frontier. Aided by timing, patience and, to no small extent, the good luck of having colleagues who agree with him that the states' interests have been submerged for too long, he is conducting this high-stakes war along several fronts of distinct but interrelated constitutional doctrine.
And he is winning. When the Rehnquist Court passes into history a reshaping of the federal-state balance may prove his most enduring legacy.
Last month, Rehnquist wrote an opinion for a 5-4 majority in a case that gave new teeth to one of the Constitution's more obscure and ambiguous provisions, the 11th Amendment.
The amendment, adopted in 1795 in response to the states' fears of being sued for Revolutionary War debts, shields a state from being sued in federal court by a citizen of another state.
The court subsequently interpreted the 11th Amendment to bar suits by a state's own citizens as well in an 1890 decision that Rehnquist's recent opinion in Seminole Tribe vs. Florida essentially revised and placed on firmer constitutional footing than ever before.
The Seminole Tribe decision struck down a portion of the Indian Gaming Regulatory Act, a federal law governing the terms by which Indian tribes can conduct gambling on their reservations.
The court held that, despite Congress' virtually complete constitutional authority to legislate in the area of Indian affairs and the states' lack of any such authority, the law's provision permitting tribes to sue a state to bring it to the bargaining table violated the 11th Amendment.
The decision contained several loopholes - people can still sue states on equal protection grounds and seek injunctions to keep individual state officials from violating federal law - that make its full effect somewhat unclear.
But it nonetheless calls into question the authority of Congress to ensure that people can vindicate their federally guaranteed rights in federal court.
The 11th Amendment case followed by less than a year an important victory by the chief justice on another front: Congress' authority to regulate interstate commerce.
In United States vs. Lopez, the court found for the first time in 60 years that Congress had exceeded its authority by making it a federal crime to carry a gun within 1,000 feet of a school. Such an act, the chief justice said, was simply not commerce.
As with the Seminole Tribe case, the significance of United States vs. Lopez lay in its implications, in its turning away from the prevailing notion that Congress knew best and that the authentic vision of American history was ``the steady and inevitable triumph of nationalism,'' as Wilfred M. McClay, a historian at Tulane University, wrote recently.
A Rehnquist opinion rings no such rhetorical bells. The Lopez opinion was typically dry and to the point. To agree with the government that Congress had the power it claimed would require the court to conclude ``that there never will be a distinction between what is truly national and what is truly local,'' the chief justice said. ``This,'' he added, ``we are unwilling to do.''
Federal courts have since struck down a federal arson law as applied to a private home - seen as insufficiently connected to interstate commerce - and the Child Support Recovery Act, which brings some ``deadbeat dad'' cases within federal jurisdiction.
The mightiest constitutional engine of all for returning power to the states may be the 10th Amendment, which has been absent from the court's docket for the last few years but may soon return in force.
The 10th Amendment provides that powers not delegated by the Constitution to the federal government are reserved to the states. Its history as a charter of state sovereignty has been fitful, with the chief justice its most ardent modern champion on the court.
Four years ago, he joined an opinion by Justice Sandra Day O'Connor that invoked the 10th Amendment to strike down a federal law that required the states to take responsibility for disposing of the low-level radioactive waste generated within their borders.
Referring to the Constitution as dividing power ``among sovereigns,'' O'Connor said the federal government could not ``commandeer'' the states ``into the service of federal regulatory purposes.''
For several years, the decision, New York vs. United States, sat quietly ticking, an unexploded bomb. But last month, the U.S. Court of Appeals for the 5th Circuit relied heavily on the New York case to strike down a section of the 1994 Brady Handgun Violence Protection Act that requires local sheriffs to make background checks of handgun purchasers.
The Brady law makes states the ``victims of impermissible federal coercion,'' the appeals court said. Two other appeals courts had previously upheld the law, so Supreme Court review is all but inevitable.
In addition to O'Connor, a former state legislator and judge in Arizona who came to the court as a passionate advocate for state interests, the chief justice's allies are Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas.
While solid for now, the chief justice's margin is thin enough to make it likely that hearings for his successor - or for the successor of any of his colleagues - will spend substantial time on the nominee's views on federalism.
After all these years of confirmation controversy over race, sex, religion and abortion, who could have predicted that the 10th Amendment, the 11th Amendment and the Commerce Clause would ever hold center stage?
But if the confirmation process is a window into what people hope for and fear from the court at any given moment, they just might.
LENGTH: Long : 113 lines ILLUSTRATION: PHOTO: Supreme Court Justice William Rehnquist has put hisby CNByears of being the lone dissenter behind him