The real "Contract with America": the original intent of the Tenth Amendment and the Commerce Clause.

Author:Lauricella, Peter A.

I. Introduction

In November 1994, the Republican Party took control of the United States House of Representatives for the first time in forty years.(1) This astonishing political event was due in part to the "Contract with America," a political and policy document developed by House Speaker Newt Gingrich.(2) A central theme of the "Contract with America" was the return of power to the States and the revitalization of federalism.(3) Many Americans today are frustrated with the evergrowing federal government,(4) a government whose powers are limited by the United States Constitution.(5) Lawmakers and Governors across the country have tapped into this frustration, offering many proposals to attempt to rebalance the division of power between the states and the federal government.(6)

Supporters of this movement to realign the balance of power between the federal government and the states point to the Tenth Amendment of the Constitution as their ultimate source for support.(7) The Tenth Amendment states that "[t]he 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."(8) The ideas which motivated the movement to return power to the states entered the 1996 Presidential campaign as well.(9) Former Senate Majority Leader and Republican Presidential nominee Bob Dole constantly carried a copy of the Tenth Amendment while he was on the campaign trail, vowing to "dust off the 10th Amendment and restore it to its rightful place in our Constitution."(10)

It is the United States Supreme Court that has been doing the dusting, however.(11) It has been less than a decade since scholars believed that the Supreme Court had written off the Tenth Amendment,(12) relegating federalism issues for the national political process to determine.(13) Within the last several years, however, the Supreme Court has attempted to breathe some life back into the Tenth Amendment.(14)

Many observers believe the biggest jolt for the Tenth Amendment came in 1995 in United States v. Lopez.(15) For the first time in almost sixty years the Court struck down a federal law because it exceeded Congress' authority to "regulate Commerce ... among the several States."(16) In Lopez, the Court held that the Gun-Free School Zones Act(17) Violated the Constitution because possession of handguns in a school zone did not "substantially affect" interstate commerce and thus was beyond Congress' authority to regulate interstate commerce.(18) While many proponents of federalism applauded the decision,(19) it was only five to four,(20) and the "substantial affects" test has been a relatively easy standard to meet. This suggests that the holding of Lopez may be limited.(21) What the majority opinion failed to consider is what the Founding Fathers intended by the Tenth Amendment and the Commerce Clause, in which the deepest support for a balanced federalist system lies.(22)

The author believes that Lopez is a positive case for advocates of stronger state power. However, these advocates ultimately will be disappointed unless the Court adjudicates future federalism cases through the doctrine of "original intent." In order to show this, the Article will proceed in several steps. First, it will discuss the foundations and importance of federalism in our scheme of government.(23) Second, this Article will explain the doctrine of "original intent."(24) Third, the Tenth Amendment will be examined through the "original intent" doctrine.(25) Fourth, the "original intent" doctrine will be applied to the Commerce power granted to Congress and the effect that it would have on federalism will be discussed.(26) Finally, some general conclusions will be made on the future of federalism.(27)

II. The Importance of Federalism

An explanation of the essence and importance of federalism is essential before one can understand the importance of the "original intent" doctrine to federalism's future. Federalism, in its most basic sense, is the interrelationship between a federal or central government and several state governments.(28) In the American scheme of government, however, it means something more.(29) Federalism preserves what people believe the adoption of the Constitution accomplished: a strong national government governing several enumerated areas, and strong state and local governments governing most other aspects of life, because the states are closer to the people.(30) Also, federalism has the important aspect of protecting individual liberty. For example, because the geographical area of a state is smaller than that of the federal government, people who find certain state policies and regulations burdensome could "vote with their feet," and move to a different state.(31) When a policy or regulation becomes national and uniform, the ability to escape it is severely weakened.(32)

Furthermore, federalism, as expressed through the Tenth Amendment, is the only protection of liberty that is neutral.(33) This concept is best summarized in this passage:

The various amendments to the Constitution specify what

freedom is protected -- freedom of speech, press, religion,

freedom from unreasonable searches, and so on. If a liberty

you cherish does not fall within one of the specified categories

or does not appeal to judges who are making up new

constitutional rights), you will receive no protection from the

courts. But if another state allows the liberty you value, you

can move there, and the choice of what freedom you value is

yours alone, not dependent on those who made the

Constitution. In this sense, federalism is the constitutional

guarantee most protective of the individual's freedom to make

his own choices.(34)

Federalism, as understood under our system of government, guarantees that states can continue to serve as laboratories of democracy that "try novel social and economic experiments without risk to the rest of the Country."(35)

III. The Doctrine of "Original Intent"

The doctrine of "original intent," also called the "framers' intentions," "original meaning," or "original understanding," is a "method of constitutional and legal interpretation that seeks to discern the original meaning of the words being construed as that meaning is revealed in the intentions of those who created the law or the constitutional provision in question."(36) Proponents of this doctrine argue that it is the very nature "of the rule of law; it is the line that separates the act of judging from the act of legislating."(37) Departure from the "original understanding," undermines the essence of our republican form of government: rule of the people through elected individuals.(38)

The first and most important evidence of the "original intent" is the text of the Constitution.(39) The text of the Constitution, though, cannot be defined by contemporary definitions and understandings of the particular word or words in question.(40) "Original intent" means just that: defining what the text meant originally.(41) According to the doctrine, if the Framers of the Constitution intended anything other than what is in the Constitution's text, they would have put it there.(42)

Of secondary importance in the quest for original intent are the thoughts expressed in the writings and speeches of the Framers of the Constitution and the Ratifiers of the Constitution's amendments.(43) At times throughout our constitutional history, however, writings and speeches have taken primary importance when the Court has felt the text of the Constitution is too broad (i.e., "Congress shall make no law abridging the freedom of speech") or when the "original understanding" of the word itself has been construed too broadly.(44)

Also important in gauging the "original intent" of a constitutional provision is reading the provision in context with other clauses of the Constitution.(45) Related to this concept is whether an activity was allowed or prohibited generally by state and federal laws at the time the Constitution and its Amendments were adopted.(46) If an activity was allowed or prohibited at the time of the adoption of the Constitution or the Amendment, the Framers' intent as to a restriction or grant of power can be better ascertained.

It is important to recognize that many commentators have criticized the doctrine of "original intent."(47) Some frequent criticisms of the doctrine are that: (1) it was not the Framers' intent that later generations of American would be beholden to their intent;(48) (2) many constitutional provisions are broadly written, making the search for the literal meaning impossible;(49) (3) the "original intent" is nothing more than what a particular Justice says it is;(50) (4) the "original intent," if followed, would produce injustices;(51) and (5) it is used primarily to support conservative political causes.(52) Despite these criticisms, "original intent" philosophy and methodology are legitimate ways of strengthening the states' role in the federalism equation.

IV. The "Original Intent" of the Tenth Amendment

What the Drafters of the Bill of Rights intended by the language of the Tenth Amendment is debatable. For example, is it meant to act as an independent limitation on federal powers (such as the first Eight Amendments),(53) or is it merely an expression of their sentiment that the Constitution created a federal government of limited powers?(54) Does the "original intent" of the Tenth Amendment limit federal intrusion into state sovereignty, or does the original understanding of other provisions of the Constitution empower federalism?

A. Recent Tenth Amendment Jurisprudence

Although federalism questions are "as old as the Constitution"(55) and have been the focus of many of the Court's "most difficult and celebrated cases,"(56) the question regarding the role the Tenth Amendment plays in our federalist system has grown tremendously in the last twenty-five years.(57)

In National League of Cities v. Usery,(58)...

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