Roberts In The Rehnquist Mold--Independent Institute

REHNQUIST'S FEDERALIST LEGACY

The late Chief Justice William Rehnquist should be remembered not for
his administrative skills or diplomatic demeanor, but for his advocacy
of federalism, according to Research Fellow William J. Watkins Jr.

"At least since the New Deal, the Tenth Amendment had been edited out
of the Constitution by various court decisions," Watkins writes in a
new op-ed. "Lamenting these years of neglect, Rehnquist made clear
early on that he intended to revive the Tenth Amendment as a
restriction on congressional power."

The Tenth Amendment, a linchpin of the federalism of the U.S.
Constitution, 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." Rehnquist's relative
affinity for the Tenth Amendment helped revive federalism in some of
the landmark cases of his career.

In the 1976 case of National League of Cities v. Usery, Rehnquist
wrote the majority opinion, arguing that a congressional extension of
the minimum wage and maximum hour requirements of the Fair Labor
Standard Act would "significantly alter or displace the States'
abilities to structure employer-employee relationships." In the decade
that followed, the Court's composition had changed, and the ruling was
reversed in a 1985 decision. But Rehnquist persisted.

In 1995, for example, the Rehnquist Court ruled in United States v.
Lopez that the Commerce Clause could not justify a federal law that
prohibited the possession of firearms near school premises. "The
Constitution delegated to Congress only few and defined powers, the
Court announced, and these constitutional limits were transgressed by
passing a criminal statute and claiming it was a commercial
regulation," writes Watkins. Using the same reasoning, the Court under
Rehnquist struck down several federal statutes imposing unfunded
mandates on the states throughout the 1990s.

"Incrementally, the Rehnquist Court set about limiting federal power;
returning true self-government to the state and local level," Watkins
continues. "With the passing of Rehnquist, President Bush has
nominated Roberts for chief justice, a jurist who fits nicely into the
Rehnquist mold. The President now has a second opportunity to appoint
a justice who can continue or end the Rehnquist Court's federalism
revolution."

See "William Rehnquist's Federalist Legacy," by William J. Wakins Jr.
http://www.independent.org/newsroom/article.asp?id=1563
SPANISH TRANSLATION:
"El Legado Federalista de William Rehnquist"
http://www.elindependent.org/articulos/article.asp?id=1563

Also see:

"Raiching the Constitution over the Coals," by William J. Watkins Jr.
(CHRONICLES MAGAZINE, 8/2/05)
http://www.independent.org/newsroom/article.asp?id=1545
SPANISH TRANSLATION:
"Echando a la Constituci´┐Żn a las Brasas"
http://www.elindependent.org/articulos/article.asp?id=1545

"John G. Roberts and the New Federalism," by William J. Watkins Jr.
(7/25/05)
http://www.independent.org/newsroom/article.asp?id=1540
SPANISH TRANSLATION:
http://www.elindependent.org/articulos/article.asp?id=1540

To purchase RECLAIMING THE AMERICAN REVOLUTION: The Kentucky and
Virginia Resolutions and Their Legacy, by William J. Watkins, Jr., see
http://www.independent.org/store/book_detail.asp?bookID=18