Posted by Orin Kerr:
The Rehnquist Court and Symbolic Federalism:
http://volokh.com/archives/archive_2005_06_05-2005_06_11.shtml#1118082016
In response to my earlier post, [1]Tom Goldstein writes:
I agree with Orin's comment . . . that Raich on one level seems
unremarkable. But I suppose that it has received enormous attention
within constitutional law circles because of the continuing
uncertainty about whether Lopez and Morrison repesented just
outlying data points in the structure of the Constitution or
instead a serious theme that would emerge and contradict much of
the previous conventional wisdom about federal powers. It looks
like today's opinion pretty decisively answers that question in
favor of the former.
I agree. At the same time, I don't think this opinion should come as
a surprise. When was the last time that the pro-federalism side won in
a major federalism case at the Supreme Court? As best I can recall,
it's been a long time; in the last few years, at least since Bush v.
Gore, pro-federalism arguments have repeatedly lost.
More broadly, it seems to me that the theme of the Rehnquist Court's
federalism jurisprudence is Symbolic Federalism. If there is a
federalism issue that doesn't have a lot of practical importance,
there's a decent chance five votes exist for the pro-federalism side.
Lopez is a good example. Lopez resulted in very little change in
substantive law. Yes, the decision struck down a federal statute, but
it indicated that Congress could quickly reenact the statute with a
very slight change. Congress did exactly that: It re-passed the
statute with the added interstate commerce element shortly after the
Lopez decision. Lower courts have upheld the amended statute, and the
Supreme Court has shown no interest in reviewing their rulings.
Because nearly every gun has traveled in or affected interstate
commerce, the federal law of possessing guns in school zones is
essentially the same today as it was pre-Lopez.
As soon as the issue takes on practical importance, however, the
votes generally aren't there. If anything, the surprise today was that
there were three votes for the pro-federalism side.
(Cross-posted at SCOTUSblog; to leave a comment, do so [2]here.)
References
1.
http://www.scotusblog.com/movabletype/archives/2005/06/raich_as_consti_1.html#comments
2.
http://www.scotusblog.com/movabletype/archives/2005/06/the_rehnquist_c.html#comments
_______________________________________________
Volokh mailing list
[email protected]
http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
