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The Wages of Crying Judicial Restraint

By Barnett, Randy E. | Harvard Journal of Law & Public Policy, Summer 2013 | Go to article overview

The Wages of Crying Judicial Restraint


Barnett, Randy E., Harvard Journal of Law & Public Policy


In September 2005, the Wall Street Journal asked if I would write a tribute to Chief Justice William Rehnquist, who had just passed away. In thinking about the future of federalism, the Supreme Court and the Constitution, it is fitting to quote from that piece. Here is how it begins: "Today we mourn the death of William Rehnquist. One day soon we may mourn the death of his legacy--the jurisprudence of the Rehnquist Court." (1) And here is part of how it ends:

   As the new chief justice (assuming he is confirmed), will
   John Roberts assume the role of his mentor William
   Rehnquist--for whom he clerked--and lead the Roberts
   Court to enforce the Constitution's original plan of limited
   federal power?.... A judicial withdrawal from enforcing
   the original limits on the powers of Congress would undo
   the New Federalist legacy of William Rehnquist. (2)

Then there was this comment on President Bush's choice to fill Justice O'Connor's seat on the Court (for which then-Judge Alito was eventually selected):

   As the president now decides who next to nominate, he
   would uphold the Constitution by selecting a person with a
   firm and demonstrated commitment to the Rehnquist
   Court's New Federalism legacy. Only such a choice would
   continue the movement to restore the 'first principles' of
   constitutionally limited government that William Rehnquist
   affirmed so eloquently. One can hardly imagine a sadder
   end to the tenure of William Rehnquist than that his most
   prized and important contribution to constitutional law is
   aborted by a conservative Republican president and a
   Republican-controlled Senate. (3)

So eight years later, where does the New Federalism stand? After the Affordable Care Act case, (4) there is good news and there is bad news.

First, the good news. Five Justices voted to affirm the proposition that the Constitution creates a government of limited and enumerated powers and that the courts will enforce those limits. (5) To understand why this victory was possible, it is important to understand that there are not just two versions of federalism, pre-New Deal and post-New Deal. There is also a third version. (6) The failure to recognize the third version goes a long way to explain why most of my academic colleagues predicted that the right would have no chance to prevail in our constitutional challenge to the individual insurance mandate. (7)

The first version of federalism is the pre-New Deal version. This version affirms that the Constitution established a national government of limited and enumerated powers, that those powers should be interpreted according to their original meaning, and that much of what the federal government tried to do before the New Deal, and did during the New Deal and after, is unconstitutional. (8) Obviously, something we might call the "New Deal vision of federalism" supplanted the pre-New Deal version, but its exact content is not as obvious as some believe.

The post-New Deal vision of federalism has been interpreted by progressives, quite beyond what the Court has actually said, as repudiating the idea that the Constitution enumerates certain limited congressional powers and that these limits are to be enforced by the courts. This progressive vision of the post-New Deal federalism essentially says that Congress has the plenary power to legislate as it will with respect to the national economy. (9) Put another way, the Commerce and Necessary and Proper Clauses combine to create a "National Problems Power" vested in Congress.

Because most law professors held this vision of the New Deal, it came as quite a shock to them when the Rehnquist Court established the New Federalism. (10) The New Federalism established the proposition that there were limits that were compelled by what Chief Justice Rehnquist referred to as "first principles" of constitutional government. (11) That these limits would be enforced by the Court (12) seemingly rejected and repudiated the progressive vision of the post-New Deal constitutionalism that, up to that point, had seemed orthodoxy.

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