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

By Pilon, Roger | Insight on the News, December 12, 1994 | Go to article overview

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


Pilon, Roger, Insight on the News


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. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

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

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.