A COMBINATION of assertive state officials and the conservative
wing of the Supreme Court is leading the nation into significant
new constitutional waters - landmark rulings that limit federal
power and give increased say-so to state capitals. Moreover, as of
this week, potential new landmark rulings on behalf of states are
on the horizon.
While bitterly opposed by the tribunal's moderates, this
judicial "federalism" is quietly emerging as the hallmark of the
Rehnquist-led court of the 1990s. Legal scholars now draw a breath
to describe the range of challenges offered by conservatives to
rethink the historic line between states rights and federal
supremacy enshrined in the Constitution's Article 6.
"There is a concerted effort to reexamine the relation between
state and federal power across the spectrum of the Constitution,"
says law professor Stephen Wermiel of Georgia State University.
The court announced April 15 it would hear two more cases that
could allow states even greater latitude. It agreed next year to
decide whether state wage laws in California are superseded by
federal standards requiring a higher minimum wage.
The court also agreed on April 15 to resolve an Idaho dispute
over who controls the waterways within an Indian reservation. As
with last month's Seminole gambling decision that limited the
ability of Congress to take states to federal court, the Idaho case
could signal to state capitals that the court is prepared to give
states more latitude and power.
Moreover, a recent dispute between two US Circuit Courts of
Appeals over the Brady handgun bill will likely force a major court
showdown over Washington's power to require local and state police
to enforce a waiting period for buyers of handguns.
Last year, when the court for the first time in 60 years limited
the powers of Congress in a decision (US v. Lopez) dealing with
guns near schools, many experts were dubious about the extent of
the ruling. Yet the recent Seminole gambling decision, which limits
Congress's ability to take a state to federal court, made believers
out of many skeptics.
"The line of these cases gets longer every day," says Marci
Hamilton of New York's Benjamin Cardozo Law School, a former law
clerk for Justice Sandra Day O'Connor. "The five conservatives are
able to articulate their federalism, and momentum is building in
support of the doctrine."
Advocates for judicial federalism usually cite the virtues of
local control - of a state's unique ability to resolve its own
problems, shape its own decisions, and not be a kind of powerless
subcontractor for Washington's edicts. The great tool in the
federalism kit is the 10th Amendment. …