With all the talk about the constitutionality of Obamacare, I thought back to a paper I wrote in my last days at university. This reflected on the conservative counter revolution of the Rehnquist court.

The First Amendment to the U.S. Constitution begins with the phrase: “Congress shall make no law.” These words, according to George Will, the Washington Post columnist, are the most beautiful in the English language. For generations, conservatives lamented the increased role played by the federal government in the daily life of its citizens. Conservatives looked to the 10th Amendment, which read: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people” to justify their opposition.  For decades, the 10th amendment went largely ignored. The jurisprudence of William Rehnquist changed this. Rehnquist spent his judicial career emphasizing the limited power the Constitution granted to Congress. Three of his rulings illustrated this point: his dissent in Fry v. United States, his majority opinion in National League of Cities v. Usery, and his ruling in United States v. Lopez.

The founding fathers intentionally limited the powers granted to the national government. Thomas Jefferson and James Madison both feared excessive centralized power. American federalism, shaped in part by Montesquie’s Spirit of the Laws, respected states’ rights and diffused power from Washington. This limited government framework shaped America throughout the 18th and 19th centuries.

The progressive era changed things. Woodrow Wilson began strengthening national authority once he assumed the presidential office in 1913. Under his watch the federal income tax was implemented (16th amendment), the Federal Reserve was created, and the direct election of U.S. senators began (17th amendment). Heretofore state legislatures elected senators which ensured that the upper chamber members paid attention to their state’s concerns. Over the 20th century, the 17th amendment enhanced federal power and weakened state autonomy.

Many of Wilson’s reforms waned during the roaring 1920s, when Republicans controlled the executive branch for over a decade (1921-1933). The fulfillment of the progressive dream began when Franklin Roosevelt became president. FDR’s New Deal shaped American politics for half a century and liberals controlled Washington for most of that time. During this period, Congress played an increasingly active role in national affairs. It used the commerce clause to justify its growing encroachment on citizens’ lives.

The conservative counter-revolution began with the election of Richard Nixon. Nixon campaigned on a message of “law and order.” He claimed to speak for the “silent majority” of Americans who abhorred the radical social changes of the 1960s. The new president blamed many of these changes on the rulings of the Supreme Court, which enhanced civil liberties (specifically the Gideon, Griswold, Mapp, Miranda, , Roth, and Sullivan decisions) reshaped American life. Nixon thought the Warren Court’s decisions had created a libertine atmosphere that contributed to social disintegration that marked the 1960s.

Nixon aimed to pack the court with judges who shared his philosophy, and fight back against the judicial activism of the Warren years. Six months into his administration Congress confirmed Nixon’s first Supreme Court Nominee, Warren Burger, to fill the seat vacated by the retiring chief justice (though he was a liberal jurist, Warren had been a Republican governor of California before sitting on the Court). Another seat opened up two years later. Nixon nominated a young Goldwater Republican, William Rehnquist, to it. At the time, the president applauded his nominee as “one of the finest legal minds in this Nation today.” However, Nixon later noted that he was attracted to Rehnquist’s age (47 at the time) and hoped that he could serve on the Court for twenty-five years.

Rehnquist sailed through his confirmation hearings. The Senate approved him by a vote of sixty-eight to twenty-six. Bob Woodward, the Washington Post correspondent and chronicler of the Burger Court, noted Rehnquist’s appearance as he took his seat in January 1972: “with his long sideburns and moderately long hair, Rehnquist looked younger than forty-seven.”

His looks did not faze the liberal justices. They worried about his “extreme” legal philosophy. His colleague Thurgood Marshall insisted that Rehnquist was a stark-revisionist, whose use of the law was “crude and mean spirited.”6

Sue Davis, who has studied Rehnquist’s view of the Constitution, thought otherwise: the roots of the new justice’s philosophy lay in legal positivism. This meant that Rehnquist believed two things: 1) the dominant political authority, in the United States a legislature and executive, made a decision and passed a piece of legislation, and 2) that laws and morals are completely separate- one must understand the law that exists, not a law one wished to have.

Several liberals feared that Rehnquist would threaten the idealistic direction the Court took during the Warren years. The old-lion liberals on the Court noted their young colleague’s commitment to judicial restraint.

Rehnquist insisted that the judiciary had no right to intervene in certain types of cases. He contended that state legislatures, executives, and courts should have the “benefit of the doubt” to define and grant individual rights to their citizens.

 This idea of state sovereignty, and judicial restraint, became a central tenet of his jurisprudence. Sue Davis concluded that federalism ranked as the highest position in his value system, followed by property rights and, at the bottom, individual rights.

Rehnquist’s belief in federalism and his adherence to the 10th amendment became a part of his jurisprudence in the mid 1970s. He laid out this philosophy in 1975 in his dissent to Fry v. United States. The case revolved around the Economic Stabilization Act of 1970 which allowed the president to stabilize wages and salaries at certain level. The bill also granted authority to a Pay Board, which served as an overseeing agency.

The case arose out of a dispute between the federal government and the State of Ohio, which wished to pay its state employees an amount above that authorized by the Pay Board. The federal government cited the Temporary Emergency Court of Appeals, and claimed that this act threatened to affect interstate commerce.

The Supreme Court upheld the federal government’s actions. It claimed: “general raises to state employees, even though purely intrastate in character, could significant affect interstate commerce, and thus, could be validly regulated by Congress under the Commerce Clause.

In his dissent, Rehnquist argued that the Commerce Clause was not sufficient to sustain the “sweeping federal regulation” that Washington attempted to impose on the state of Ohio.He abhorred the “national emergency” rhetoric, which Congress used to justify its actions.

This dissent articulated Rehnquist’s belief that the 10th Amendment granted to the individual states the same rights as the Bill of Rights granted to individual citizens.

A year later Rehnquist expanded his idea of state sovereignty in National League of Cities v. Usery. This case struck down the 1974 amendments to the Fair Labor Standards Act, which extended the minimum wage and maximum hours to state and local (municipal/city) employees. The ruling claimed: “congress may not exercise its power to regulate commerce so as to force directly upon the States its choices as to how essential decisions…are to be made.”19 This ruling brought the 10th Amendment back to the public attention in a way that the Fry dissent did not.

In his majority opinion, Rehnquist cited the Fry case: “ the [10th] Amendment expressly declares the constitutional policy that Congress may not exercise power in a fashion that impairs the States’ integrity or their ability to function effectively in the federal system.”

This ruling put Congress’s regulatory authority on alert for the first time in thirty years. Nine years later, the Court narrowly overturned the National League of Cities ruling.22 This did not dissuade the associate justice. His idea of state sovereignty and limiting congressional power had gained traction with the third branch of government: the chief executive, Ronald Reagan.

When Chief Justice Warren Burger retired in 1986, President Reagan nominated William Rehnquist to fill the top seat  and nominated Antonin Scalia to fill the associate position. The Senate confirmed both men.

 By the mid 1990s the Court looked radically different from the one Rehnquist joined in 1972. It was now fairly conservative. Seven (of the nine) justices were appointed by Republican presidents. These included John Paul Stevens, Sandra Day O’Conner, Antonin Scalia, Anthony Kennedy, David Souter, and Clarence Thomas.  Three of them were conservative (Rehnquist, Scalia, and Thomas), two (Kennedy and O’ Conner) were fairly conservative. Only John Paul Stevens and David Souter disappointed the Republican presidents who nominated them.

The Rehnquist Court heard United States v. Lopez in November 1994 and rendered its verdict in April 1995. The case dealt with the 1990 Gun-Free School Zones Act, a piece of legislation that made it a federal crime to “knowingly…possess a firearm at a place that [he] knows…is a school zone.23Congress defended this bill with the commerce clause.

This case came to the Court’s attention after a 12th grader carried a concealed handgun into a public high school and was charged with violating this federal law. A district court ruled against the defendant’s claim that the Gun-Free School Zone Act violated the commerce clause.  The Court of Appeals reversed the lower court’s ruling, claiming that this action was beyond congressional power.

Chief Justice delivered the Court’s majority opinion and upheld the Court of Appeals ruling. His verdict noted: “The Act neither regulates a commercial activity nor contains a requirement that the possession be connected in any way to interstate commerce. We hold that the Act exceeds the authority of Congress “[t]o regulate Commerce . . . among the several States . . . .”

Rehnquist focused on the enumerated powers that the Constitution granted to Congress. He cited James Madison’s work in The Federalist (No. 45); Madison argued that federal powers were “few and limited” while states’ rights were “numerous and indefinite.” The founders divided powers along this federal model to ensure that citizens secured their individual liberties; furthermore, it served to prevent the build up of excessive power, which would promote tyranny.

Rehnquist then chronicled the history of the commerce clause, beginning with its constitutional origins. He also chastised the national legislature for overstepping its authority:

[This legislation] is not a regulation of the use of the channels of interstate commerce, nor is it an   attempt to prohibit the interstate transportation of a commodity through the channels of commerce; nor can §922(q) be justified as a regulation by which Congress has sought to protect an instrumentality of interstate commerce or a thing in interstate commerce. Thus, if §922(q) is to be sustained, it must be under the third category as a regulation of an activity that substantially affects interstate commerce.

Rehnquist noted that section 922 had nothing to do with commerce; it was simply a criminal statute. It regulated no economic or commercial activity. Rehnquist wrote that if he agreed with the government’s case, he would be “hard pressed to posit any activity by an individual that Congress is without power to regulate.”

United States v. Lopez  reasserted and solidified the 10th Amendment into the American consciousness. It highlighted the Court’s conservative counter-revolution that occurred on Rehnquist’s watch. He joined a liberal court and was regarded by many as an “extremist” noted for his judicial restraint. Now critics claimed he was emblematic of the new Court majority. The press used epithets to describe his colleagues, Anton Scalia and Clarence Thomas.

Many felt that his tenure served as a counter to the advances made during the Warren years. The three cases chronicled demonstrate that his legal philosophy never wavered. Rehnquist firmly believed in federalism and state sovereignty. His dissent in Fry put legal observers on alert; this justice felt congressional powers were enumerated and clearly limited. The Court’s verdict on National League of Cities thwarted congressional regulating power for the first time since 1937. Finally with United States v. Lopez, Rehnquist completed the mission to limit federal legislative power. This accomplishment, along with his long tenure deciding cases based on judicial restraint, earned him the title: “architect of the Conservative Court.”


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