A Vast Sea of Federal Power, Lapping at Islands of Freedom

Article excerpt

In this land where the people rule, many believe the people's rulers are out of control. Although the people just spoke clearly to the problem of overweening government, the Supreme Court will be hearing a case that could reimpose more lasting restraints on our rulers than anything to come from the polls.

That case, United States vs. Lopez, presents a fundamental question: Is the power of Congress limited only by the guarantees contained in the Bill of Rights, or does the Constitution itself limit Congress by enumerating its powers?

That question may seem interesting only to constitutional scholars, but the implications of the court's answer are profound and far-reaching. At its writing, the Constitution was a document of enumerated powers, with a vast sea of private liberty reserved. Today, it is a vast sea of powers lapping at islands of liberty.

The unlikely and unsympathetic case that gives rise to this most basic of questions comes from San Antonio, Texas, where one Alfonso Lopez, a 12th-grade student, brought a handgun to school in violation of the Gun-Free School Zones Act Congress passed in 1990. Although Texas law long had prohibited guns at school, Lopez was charged under the federal law, which prohibits unauthorized individuals from possessing a gun within 1,000 feet of a school.

After losing at trial, Lopez's public defender appealed to the 5th U.S. Circuit Court of Appeals, where he found a sympathetic ear in Judge William L. Garwood. Speaking for a three-judge panel, Garwood invoked the Constitution's principal author, James Madison, to remind federal attorneys that the document "establishes a national government of limited and enumerated powers, few and defined," leaving the rest to the states or to the people, as the 10th Amendment confirms.

But Garwood continued, with language too good to paraphrase: "It is easy to lose sight of all this in a day when Congress appropriates trillion-dollar budgets and regulates myriad aspects of economic and social life. Nevertheless, there are occasions on which we are reminded of this fundamental postulate of our constitutional order. This case presents such an occasion."

When Congress passed the act it forgot, it seems, to say just where in the Constitution it was finding its authority. What is worse, even if it had uttered the 20th century's magic words, "Commerce Clause," as the government did in court, the power of Congress to regulate commerce among the states would not avail. After all, mere possession, which is what the law prohibits, is not commerce.

That argument would seem unassailable - at least if Madison and company understood the document they drafted. How then have we reached a point where conventional wisdom holds that the decision quickly will be reversed?

To answer that, we need first to appreciate how central the doctrine of enumerated powers was to the original design. Its function was twofold: to legitimize, power; then to limit it. To be legitimate, power would have to be "authorized" by delegation from the people. …