The Rehnquist Court’s Federalist Legacy & The Transformation of the Tenth Amendment

Karen Ben-Moyal

Constitutional Law

Introduction

The purpose of the 10th Amendment has been a controversial issue since the founding of

America’s constitution. Of all the foundations implemented into the Bill of Rights and the

Constitution since America’s founding, the issues which continue to surround the Tenth

Amendment have stemmed from the conflicting interpretations of both the court and politicians

at different points in time. In fact, they remain at the heart of the most controversial debates to

date. Furthermore, the tenth amendment, which states, “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,”1 is meant to protect each of these powers from both entities.

Those powers not delegated are reserved. It says nothing about whether delegated powers are to

be broadly or strictly construed. In retrospect, the most significant differences in constitutional

law are a direct result of the U.S. Supreme Court’s revival of federalism as a constraint on

federal power. The federalism decisions, which will be discussed in detail, are the product of the

Rehnquist Court. With a majority comprised of five conservative SCOTUS justices under the

leadership of William Rehnquist who were all deeply committed to protecting state rights from

federal government invasion. Justices Scalia, Kennedy, Thomas, and O’Connor, were

responsible for introducing the concept of “New Federalism,” which virtually affected every area

of U.S law, both civil and criminal, which ultimately changed the course of history and the future

of the Supreme Court. The Court’s rulings are also pledged with restoring what the founders had

in mind when they composed the tenth amendment. Among them, to restore dual sovereignty

between government entities, establish an effective and fair system of centralized power, and

1 Carp, Robert A., and Ronald Stidham. "Annotated Constitution." The Federal Courts. Fifth Edition ed. Washington, D.C.: CQ, 1985. 273. Print.

overall, protecting the virtues that come with the promise of individual liberty. Thus, the goal of

this report is to address and evaluate past Supreme court cases and specific provisions that were

both relevant to the reconstruction of the Tenth Amendment as a limit on the powers of

Congress, and were resolved by the Rehnquist Court. It will also provide an analysis to express

the data and briefings which are fundamental to each court case, and thus significant to the

evolution of constitutional law. Another area that requires further analyzation concerns the

doctrine of sovereign immunity. Therefore, an analysis over the significant role that the

Rehnquist Court played in the expansion of sovereign immunity is essential to understanding this

part of the discussion.

The Transformation of the Tenth Amendment Over Time

Throughout the course of American history, the Supreme Court has transitioned between

two very different forms of federalism. The details of these changes in interpretation throughout

American history are worth noting. The first involves a somewhat nationalist view, or the belief

that the tenth amendment is not a separate constraint on Congress, and that it is only a reminder

that Congress may only legislate if it has authority under the Constitution. The second pertains to

the “federalist” approach, or the conviction that the tenth amendment protects state sovereignty

from federal intrusion. In America’s first century of existence, the Court took the former

approach. In the court case, Gibbons v. Ogden2, for example, Chief Justice John Marshall

rejected the perception that the scope of Congress’s powers had any limits under the Tenth

Amendment because he held the strong belief that any exercise of constitutional enumerated

authority was granted by the constitution unto congress to serve the purpose of expanding scope

of Congress’s Commerce Clause. This vision last until 1890’s until 1937 when the Supreme

2 Gibbons v. Ogden, 22 U.S. 1 (1824)

Court shifted to the latter approach. During this time period, the Court placed great emphasis on

the Tenth Amendment, redefining it as a limit on congressional power. An example of this was

represented in the court case, Hammer v. Dagenhart,3 when Congress passed a law forbidding

the shipment of good in interstate commerce if those goods were manufactured by any form of

child labor. The Supreme Court held that it violated the Tenth Amendment. From the late 1930s

until the early 1990s, constitutional clauses related to federalism were greatly discounted due to

the massive expansion of federal power enacted under Franklin D. Roosevelt and his “New

Deal” Congress. Under the leadership of the late Chief Justice William Rehnquist, however, the

meaning of the Tenth Amendment utterly transformed the way the Courts view the idea of

federalism, creating a new form of this concept called “New Federalism.” Further, the decisions

made by the Rehnquist Court involving the Tenth Amendment not only strengthened the bond

that coincide between two different entities of government, it also reinvigorated the concept of

Federalism by achieving an even greater endeavor. It defied the majoritarian opinion of the

elitists, essentially giving back what was lost by the states throughout time and history, gaining

back the power to govern on their own terms. Thus, this was a victory for both the states and the

people. Public trust in the government has since increased because the people being governed are

lacking in fear of tyrannical overthrow by the national government. As for the states, they were

given back the powers by which they were originally intended to receive. Three sets of doctrines

were at the heart of some of the major decisions held by the Rehnquist Court. Taken all together,

these three manifestations of constitutional law epitomize a Revolutionary departure from court

decisions in prior years. The following manifestations by the Rehnquist Court include themes

which represent the court’s devotion to the preserving of states’ rights and importance of state

autonomy: 1. Significant limitations placed on the scope of Congressional power under the

3 Hammer v. Dagenhart, 247 U.S. 251 (1918)

Commerce Clause and under Section 5 of the Fourteenth Amendment. 2. The revival of the

Tenth Amendment as a limit on federal power. 3. Finally, the court’s expansion of the sovereign

immunity doctrine.

Limiting the Scope of the Commerce Power

Over the years, the Rehnquist Court handed down a succession of decisions which drew stable

boundaries between the powers of the national and state governments. In turn, the court was able

to effectively keep tight rein on congressional power under the interstate commerce clause.

Gregory v. Ashcroft

Gregory v. Ashcroft,4 was a case in which four Missouri state court judges challenged the

provisions of the Missouri Constitution located in Article V, 26, which ensured a mandatory

retirement age of 70 for most state judges. The court was then compelled to consider whether or

not the mandatory retirement provision violates the federal Age Discrimination in Employment

Act ("ADEA")5. The Missouri judges further argued that the mandatory retirement provision

violated the equal protection clause of the Fourteenth Amendment. This case was significant

because of the fact that it signified one of the first indications of the resurrection of the Tenth

Amendment. Another noteworthy point the Court added to its decision in this case stressed the

importance of autonomous state governments.

United States v. Lopez

The court case, United States v. Lopez,6 is considered one of the most important Supreme

Court decisions that limited the power of Congress under the commerce clause. With respect to

the defense of states’ rights, this case set a paramount precedent for the court’s future. A 12th 4 See Gregory v. Ashcroft, 501 U.S. 452 (1991).5 29 U.S.C. §§ 621-634 (1982 & Supp.1987).6 United States v. Lopez, 514 US 549 (1995).

grade student brought a gun to school. The student was caught, charged, and convicted under the

Gun Free School Zones Act of 1990, which stated that possession of a firearm within 1000 feet

of a school zone is considered a federal crime. In court, the defendant argued that the act was an

unconstitutional act of the Commerce Clause which exceeded the scope of Congress’s powers.

Moreover, in U.S. v. Lopez, the Court expanded upon the theoretical reasoning previously

applied to the case of Gregory v. Ashcroft. Moreover, it concocted a rule of disposition which

limited the scope of Congress’s commerce power for the very first time since the New Deal.

Justice Rehnquist delivered the opinion for the court’s decision by retracing fundamental

principles. In his ruling, Rehnquist quoted James Madison’s vindication located within the

Federalist Papers, he stated that “The powers delegated by the proposed Constitution to the

federal government are few and defined. Those which are to remain in the State governments are

numerous and indefinite. This constitutionally mandated division of authority was adopted by the

Framers to ensure protection of our fundamental liberties.”7 Thus, the court held that, “Congress

can regulate under the commerce clause only in three circumstances: 1) the channels of interstate

commerce; 2) the instrumentalities of interstate commerce and persons or things in interstate

commerce; and 3) activities that have a substantial effect on interstate commerce. The Court

found that the federal law prohibiting guns near schools met none of these requirements and thus

was unconstitutional.”8 The same logic was applied to the Violence Against Women Act of

1994, (in the case of United States v. Morrison9), which Congress authorized under the pretense

of the Commerce Act.

7 See Federalist Papers: http://www.narlo.org/federalist.pdf. The Federalist Papers. Chicago, IL: CALI ELangdell, n.d. Web.8 See: http://www.socialstudies.org/sites/default/files/publications/se/6601/660108.html 9 United States v. Morrison, 529 U.S. 598 (2000).

Cases such as Lopez and Morrison open the door to constitutional challenges to countless

federal laws, especially those that regulate non-economic activities.

Narrowing the Scope of Congress’s Powers: Section Five of the Fourteenth

Amendment

Another significant source of congressional power worth noting is section 5 of the

Fourteenth Amendment, the Equal Protection and Due Process Clause, in particular. It

establishes that Congress has the power to enforce its provisions. However, this power was

significantly restricted in 1997, in the decision of a case called City of Boerne v. Flores10 in

which the Court ruled that Congress may not use its Section 5 powers for the expansion of the

scope of rights or implement new ones.

City of Boerne v. Flores

In City of Boerne v. Flores, the Court declared the Religious Freedom Restoration Act

unconstitutional because it sought to enhance protection of the free exercise of religion. The

Court argued that the expansion of the scope of rights made it impermissible for the court’s

authority to determine the content of religious freedoms. There is an issue here. The dramatic

new limit on federal powers puts the constitutionality of many federal civil rights laws in doubt.

Another problem that this ruling created was that it (almost) seems as if this case was the

precursor to states’ rights beginning to infringe upon the powers of the federal government. You

start to see drastic changes and major complications in later Supreme Court decisions. A major

change in the way the court approaches future cases dealing with state governments and their

newfound ability to avoid being sued, by almost any means by the national government, become

10 City of Boerne v. Flores, 521 U.S. 507 (1997).

apparent in later years. You begin to notice a pattern in cases such as Kimel v. Florida Board of

Regents,11 when the Court decided that state governments may not be sued for violating the Age

Discrimination in Employment Act. Decisions such as these set the precedent that state

governments cannot be sued when they violate federal law. The crucial question persists: Is this

an instance in which the Rehnquist Court went too far in extending the power of the states?

Revival of the Tenth Amendment as a Limit on Congressional Power

Another aspect of the Rehnquist Court’s federalism revival has been its use of the Tenth

Amendment as a limit on federal power. During this time, the Supreme Court held that the Tenth

Amendment reserves a zone of activities for exclusive state control. Rehnquist’s first major

triumph came in the 1976 case of National League of Cities v. Usery 12 , which established a limit

on the powers of Congress to interfere with such "traditional governmental functions."

Additionally, the Tenth Amendment also prevents the congress interference of certain (state) law

making processes. In the next two decisions discussed, the Rehnquist Court revived the Tenth

Amendment as a constraint on Congress’s authority.

New York v. United States

For the first time since the overruled case, National League of Cities13, the decision held

in New York v. United States14, the Court invalidated a federal law as violating the Tenth

Amendment. Moreover, the court held that, “While Congress can encourage states to dispose of

waste, they do not have the authority to compel them to do so.”15 In New York v. United States,

11 See Kimel v.Florida Board of Regent, 528 US 62 (2000).12 See National League of Cities v. Usery, 426 US 833 (1976).13 See National League of Cities v. Usery, 426 US 833 (1976).14 New York v. United States, 505 U.S. 144 (1992).15 See cases New York v. United States & Printz v. United States (Court Rulings)

a federal law deemed the Low-Level Radioactive Waste Policy Amendments Act,16 required

states to provide for the safe disposal of radioactive wastes generated within their borders. The

act also provided monetary incentives for states to comply with the law and allowed states to

impose a surcharge on radioactive wastes received from other states. Moreover, the act protected

the claim that if states did not properly dispose of any wastes within their borders by January 1,

1996, they would essentially “take title,” or in essence take responsibility for all damages,

thereby inserting them the obligation to become accountable for any future damages that may or

may not occur, both indirectly or directly. Nonetheless, by a 6-3 margin, the Rehnquist Court

held that the “take title” provision of the law unconstitutional because Congress imposing either

option on the states would be considered impermissible and strictly off limits under the

constitution. The Court contested this argument by which the defense stated, “that it was ‘clear’

because of the Tenth Amendment, that ‘the Federal Government may not compel the States to

enact or administer a federal regulatory program.”17

Printz v. United States

Several years later, in Printz v. United State18s, the Court applied and extended New York v.

United States. The significance of this case was that it further extended the limits on

congressional power to use state officers directly. Moreover, Printz involved a more

controversial challenge to the federal Brady Handgun Violence Prevention Act, which required

that the “chief law enforcement officer” of each local jurisdiction conduct background checks

16 Low Level Radioactive Waste Policy Act of 1980. In response to the complex disposal issue, Congress passed the Low Level Radioactive Waste Policy Act of 1980 (P.L. 96-573), which established that each state was responsible for disposing LLRW generated within its boundaries. http://www.nrc.gov/about-nrc/governing-laws.html 17 http://www.fed-soc.org/publications/detail/printz-v-united-states 18 Printz v. United States (95-1478), 521 U.S. 898 (1997).

before issuing permits for firearms.19 The Court concluded that Congress violated the Tenth

Amendment by compelling states to implement federal mandates. This case was also significant

because the majority opinion contained the revival of the term, “dual sovereignty,” 20 which was

redeemed by Justice Scalia in order to explain the structure of American government.

The Expansion of Sovereign Immunity

Another indispensable change in the law from the Rehnquist Court has been the Supreme Court’s

significant expansion and rejuvenation within the scope of the doctrine of state sovereign

immunity from civil suits under the Eleventh Amendment.

Alden v. Maine

In Alden v. Maine21, probation officers in the state of Maine sought compensation for their hours

of overtime work. They argued overtime pay was required under the Federal Fair Labor

Standards Act of 1938. The act permits state employees to sue in trials held by their own state

courts. However, a Maine trial court dismissed their assertions on the grounds that sovereign

immunity exists in this case. The Supreme Court later affirmed the decision and held that

because of state sovereign immunity, a state government cannot be sued in state court without

the consent of the state, even if the basis is off a federal claim. After a 5-4 decision, Justice

Kennedy expressly defended sovereign immunity based on this assumption. Thus, the following

19 The Brady Handgun Violence Prevention Act (Pub.L. 103–159, 107 Stat. 1536, enacted November 30, 1993), often referred to as the Brady Act or the Brady Bill,[1][2] is an Act of the United States Congress that mandated federal background checks on firearm purchasers in the United States, and imposed a five-day waiting period on purchases, until the NICS system was implemented in 1998.20 See-- Dual Sovereignty Doctrine: maxim of law which allows the double prosecution of a person by more than one state for the same crime, where both states have jurisdiction for the prosecution, and notwithstanding the double jeopardy rule.21 Alden v. Maine, 527 U.S. 706 (1999).

explains the reasoning behind the court’s decision. Delivered by Kennedy for the majority

opinion:

“The constitutional privilege of a State to assert its sovereign immunity in its own courts does not confer upon the State a concomitant right to disregard the Constitution or valid federal law. The States and their officers are bound by obligations imposed by the Constitution and by federal statutes that comport with the constitutional design. We are unwilling to assume the States will refuse to honor the Constitution or obey the binding laws of the United States. The good faith of the States thus provides an important assurance that "[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the Land." U.S. Const., Art. VI. (103)”22

In other words, the court held that the Federal Fair Labor Standards Act violates Maine’s sovereign

immunity guaranteed under the Eleventh Amendment. Although this logic does not stem directly from a

literal translation of the Eleventh Amendment, the grounds for this decision are well within the

Constitutional structure that promotes the argument for a view of federalism that does not violate the

common law principle that, “a sovereign may not be sued without its consent.”23

Gonzales v. Raich

Finally, in Gonzales v. Raich,24 both principles of state sovereignty and of enumerated powers

were ultimately tested in the court of law. At the time, California was one of nine states that

legalized medical marijuana. Despite this fact, federal agents confiscated medicinal weed plants

from the property of a California resident under the Compassionate Use Act.25 Even if you don’t

agree with Rehnquist’s opinion here, and as far as significance goes, this case was the one in

which William Rehnquist’s no-nonsense character really made an impact on the perception of

the chief justice. In Gonzales v. Raich, Rehnquist made a legend out of himself, for he was one 22 Quote from the majority opinion delivered by Justice Kennedy of the Rehnquist Court in Alden v. Maine.23 Quote pulled from Chapter LIV. The Suability Of States. 611. A Sovereign State May Not Be Sued Without Its Consent. http://chestofbooks.com/society/law/The-Constitutional-Law-Of-The-United-States/Chapter-LIV-The-Suability-Of-States-611-A-Sovereign-State.html#ixzz4RbY18Kfb. 24 See Gonzalez v. Raich, 2005. 545 US 1 (2005).25 See 410 ILCS 130/) Compassionate Use of Medical Cannabis Pilot Program Act.

of only three justices who were willing to stand up and defend his faithfulness and devotion for

states’ rights, (even though the opinion went against the majority of the court). It is even likely

that his decision in this case was highly unpopular among the majority of the people living in the

United States of America at the time. The chief joined the dissenting opinion written by Justice

Sandra Day O'Connor, which in reality, consisted of the most basic logical principles. They

rebutted the claim that Congress cannot just decide to transform the noncommercial possession

of homegrown marijuana, on the basis of nothing, not in the abstract nor the law, in attempts to

classify it within the same category as "interstate commerce." Finally, the court concluded that,

“Congress has the power to prohibit the local cultivation and use of marijuana under the power

of the commerce clause.”26 Justices O’Connor, Rehnquist, and Thomas made five or six valid

arguments when they dissented this decision. Among them, is that the decision would allow

Congress to regulate intrastate activity without audits, so long as there is some indication of a

legislative pattern, and if it appears that the regulating of intrastate activity is consistent with the

interstate regulatory scheme. The last argument we shall discuss is notable because it uses the

substantiated basis for stare decisis. The dissenting opinion addressed the inconsistencies that

come to light when comparing this Gonzales v. Raich with Lopez. The Court said Lopez's

regulations were not commercial and that Congress should have just said that the crime was

"transfer or possession of a firearm," thus including some commercial activity and making it

constitutional. However, this was not the case. Furthermore, The Court also warned that this was

clear sign of possible federal tyranny in the distant or not so distant future. The dissenters

suggested that if the Court always succumbs to Congress in this way, enumerated powers may

26 Choper, Jesse H., Richard H. Fallon, Jr., Yale Kamisar, Steven Shriffin, Michael C. Dorf, and Frederick Schauer. Constitutional Rights and Liberties: Cases, Comments, Questions. Twelfth ed. St. Paul, MN: West Group, 2001. Print.

eventually lose their substance and thus render the risk of total government takeover on the

national scale.

 Conclusion:

Throughout America’s history, the Tenth Amendment has had an ever-changing effect on

the way American citizens view their government. In contrast, it has also had a substantial effect

on the way the government governs their people, and the ways they are allowed to govern their

people. Furthermore, this research paper sought to examine the nature of this transition, and

dissect preceding Supreme Court cases and decisions in which the court had previously invoked

the Tenth Amendment. While there were negative connotations involved in the process, the

benefits of this cultivation probably outweighed the bad things. The trust of the public is

essential in effectively governing a Republic, and it would be scarce if Congress alone decided

the boundaries on how to police the limits of its own power, especially because of the serious

concerns held by the majority being governed. Further, the idea of “New Federalism” is not only

beneficial to the order of American Constitutionalism, it creates a huge benefactor to both the

people, and their government, because of the inevitable doubts that arise from the dangers of

excessive control by the federal government. Thus, national powers are implicated by the

specific issues that the Supreme Court's federalism cases address. Whatever the perspective, it is

generally agreeable that the Tenth Amendment coexists in our Constitution with some of the

most important clauses ever enforced. These provisions are what make up the foundation of our

nation’s unique constitution. Taking the position of safeguarding and reestablishing foundational

principles that had been lost in history. These include the advancement of the concept of

equality, the establishment of an effective line between the separation of powers, and overall, the

court’s accomplishments in the narrowing of the scope by which congressional authority has the

right to rule over the states.

List of Cases

1. Gibbons v. Ogden: (1824)2. Hammer v. Dagenhart: (1937)3. National League of Cities v. Usery: 426 U.S. 833, 96 S. Ct. 2465, 49 L. Ed. 2d 245, (1976)4. Gregory v. Ashcroft: 501 US 452 (1991)5. New York v. United States: 505 U.S. 144 (1992)6. United States v. Lopez (1995)7. Seminole Tribe v. Florida (1996)8. Printz v. United States: 521 U.S. 898, (1997)9. City of Boerne v. Flores (1997)10. Alden v. Maine: 527 US 706 (1999)11. United States v. Morrison: (2000)12. Kimel v.Florida Board of Regents (2001)13. Gonzales v. Raich (2005)

Bibliography: List of Additional Sources Used to Complete Research

1. Hensley, Thomas R., Kathleen Hale, and Carl Snook. The Rehnquist Court: Justices, Rulings, and Legacy. Santa Barbara: ABC-CLIO, 2006. Print.

2. Carp, Robert A., and Ronald Stidham. "Annotated Constitution." The Federal Courts. Fifth Edition ed. Washington, D.C.: CQ, 1985. 273. Print.

3. Lash, Kurt T. "James Madison's Celebrated Report of 1800: The Transformation of the Tenth Amendment by Kurt T. Lash :: SSRN. Elsevier, 16 Nov. 2005. Web. 22 Nov. 2016. <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=849665>.

4. Lemieux, Scott. “Law &Amp; Society Review.” Law &Amp; Society Review, vol. 43, no. 1, 2009, pp. 235–237. www.jstor.org/stable/29734183.

5. Parker, Christopher M. “Ideological Voting in Supreme Court Federalism Cases, 1953-2007.” The Justice System Journal, vol. 32, no. 2, 2011, pp. 206–234. www.jstor.org/stable/27977524.

6. Rogers, Henry Wade. “The Constitution and the New Federalism.” The North American Review, vol. 188, no. 634, 1908, pp. 321–335. www.jstor.org/stable/25106198.

7. Siegel, Jonathan R., and David L. Hudson. “Political Science Quarterly.” Political Science Quarterly, vol. 122, no. 4, 2007, pp. 688–689. www.jstor.org/stable/20202952.

8. Calabresi, Steven G. “Federalism and the Rehnquist Court: A Normative Defense.” The Annals of the American Academy of Political and Social Science, vol. 574, 2001, pp. 24–36. www.jstor.org/stable/1049052.

9. Choper, Jesse H., Richard H. Fallon, Jr., Yale Kamisar, Steven Shriffin, Michael C. Dorf, and Frederick Schauer. Constitutional Rights and Liberties: Cases, Comments, Questions. Twelfth ed. St. Paul, MN: West Group, 2001. Print.