ONE LAW PROFESSOR calls it the biggest decision in half a
century. Another calls it a blip on the constitutional landscape.
The simple truth is that not even the experts know the
long-range importance of last week's decision in U.S. vs. Lopez, in
which the court took some of the wallop out of Congress' strong
right fist - its power to regulate most anything it pleases under
its authority to regulate interstate commerce.
For the first time since 1936, the court limited Congress'
power to use the commerce clause to criminalize and regulate
activities that once were the province of the states. Voting 5-4,
the court overturned the 1990 Gun-Free School Zones Act, which made
it illegal to have a gun within 1,000 feet of a school.
Despite uncertainties about the decision, lawyers agree that it:
Reacts to the break-neck speed with which Congress has been
federalizing criminal law. Federal laws on carjackings, arson,
money laundering, extortion, streets gangs, drug-free schools and
rape may now be in question.
Threatens environmental laws because Congress often didn't
explain the connection between those laws and interstate commerce.
Puts the court in sync with Congress' emphasis on restoring
federalism by returning power to the states.
"It's almost as if they signed on to the Contract with
America," says Alan J. Howard of St. Louis University Law School.
That's part of the problem, says Bruce La Pierre, a Washington
University law professor. An avowedly conservative court should let
Congress make political decisions, he says.
"Why is it that a conservative court feels compelled to
intervene when the proposals to expand state power are being made
in Congress?" he asked. "There is a measure of hypocrisy to be so
interested in judicial activism."
Kathleen F. Brickey, another law professor at Washington
University, believes Lopez is partly a reaction to Congress'
fondness for federal crimes. There are now more than 3,000 federal
crimes, many based on the commerce clause. Chief Justice William H.
Rehnquist, who wrote Lopez, has frequently cautioned Congress
against the trend.
But Brickey doesn't believe that the decision will do much to
slow down the trend. "Doing something as popular as being tough on
crime is politically irresistible," she says.
A History Lesson
Every school-age child in America has a history lesson on the
great U.S. Supreme Court decisions of Chief Justice John Marshall.
The 1824 Gibbons vs. Ogden opinion is one.
Aaron Ogden, a former New Jersey governor, operated a ferry
between Elizabethtown, N.J., and New York City under a monopoly
granted by New York. Thomas Gibbons, his former partner, ran a
rival boat licensed by the federal government.
A New York court ordered Gibbons to stop his ferry. In
overturning that ruling, Marshall laid the cornerstone of broad
congressional authority to regulate interstate commerce. He wrote:
The commerce power "is the power to regulate. . . . This
power, like all others vested in Congress, is complete in itself,
may be exercised to its utmost extent, and acknowledges no
limitations, other than (those that) are prescribed in the
During the first third of this century, the Supreme Court took
a much narrower view than Marshall. …