Enumerated means and unlimited ends.

• Author: Powell, H. Jefferson
• Position: Reflections on United States v. Lopez

United States v. Lopez(1) can be read as a fairly mundane disagreement over the application of a long-settled test. The Government defended the statute under review in the case, the Gun-Free School Zones Act of 1990,(2) along familiar lines as a permissible regulation of activity affecting interstate and foreign commerce. The Solicitor General reasoned that the Act's prohibition on the possession of firearms in local school zones was a rational means of limiting the incidence and effects of violent crime, and the prevention of violent crime was a rational means of protecting "the functioning of the national economy" from various negative effects.(3) Agreeing with the Government, Justice Breyer argued in his dissent that "[n]umerous reports and studies ... make clear that Congress could reasonably have found the empirical connection [between `gun-related school violence and interstate commerce'] that its law, implicitly or expressly, asserts."(4) The Lopez majority, however, found that there was no basis on which to conclude that the activity prohibited by the Act "substantially affects" interstate commerce5 and accordingly held that the Act "exceeds the authority of Congress `[t]o regulate Commerce ... among the several States.'"(6)

On this reading of Lopez, its main point of interest lies in the fact that, for the first time since the New Deal, the Supreme Court has found that a congressional statute flunks its Commerce Clause test. In and of itself, though, that fact is little more than a curiosity, and, as a practical matter, the main effect of Lopez is very likely to be nothing more than a renewed congressional interest in loading federal criminal statutes with findings and "jurisdictional element[s]"(7) in order to demonstrate the close link between what Congress wishes to regulate and "Commerce . . . among the several States."(8) Lopez, in short, may have little effect on the post-1937 norm of congressional onmicompetence.(9)

In this essay, I do not address the question whether Lopez was an important decision. My concern instead is with the problem that underlies Lopez's particular issue of the scope of the commerce power: Given our commitment to limited national government, in what way is the national legislature actually limited? Or, more exactly, how are we to approach the task of constitutional interpretation so as to give appropriate meaning and effect to our commitment to limited national government? Many Supreme Court decisions, of course, pose this question in one fashion or another, but Lopez particularly invites reflection. The specific issue before the Court -- the interpretation of Congress's enumerated powers -- is our oldest vehicle for debating the problem of giving meaning to national limitation, and all the opinions in Lopez reflect a serious attempt to wrestle with its implications and resolution.(10) At the same time, the sharp divisions among the Justices in Lopez(11) demonstrate that despite its fundamental character, the problem of how to construe the Constitution so as to limit the national government remains uncertain more than two centuries after its ratification.

My purpose is to compare one of the approaches to the problem of limited national government offered in Lopez, that of the majority opinion written by Chief Justice William Rehnquist, with early attempts to address the same issue. Chief Justice Rehnquist's reasoning, I argue, closely resembles the constitutional logic developed by early Republican theorists such as Madison for the express purpose of preserving the Constitution's commitment to limited national power.(12) At the same time, however, Chief Justice Rehnquist, like -- virtually(13) -- everyone who has sat on the Supreme Court since the 1930s, believes that the range of Congress's legitimate concerns is as broad as "the common Defence and general Welfare,"(14) a position that is expressly contrary to, and fundamentally subversive of, the early Republican logic. After this comparison, I then examine the approaches to constitutional interpretation articulated by early constitutionalists who shared Chief Justice Rehnquist's profound nationalism as to the ends Congress may pursue. In the conclusion, I reflect on the relative merits of the Republican and nationalist positions as models for contemporary constitutional interpretation. Many of us, including Chief Justice Rehnquist, believe that Congress may employ its limited powers to address the essentially unlimited goals of the national welfare. If we agree with the early nationalists to that extent, I suggest, a decision such as Lopez may be a questionable judicial intervention into legislative discretion rather than an appropriate defense of the concept of limited federal government.

1. CHIEF JUSTICE REHNQUIST'S APPROACH TO THE INTERPRETATION OF CONGRESSIONAL POWER

Chief Justice Rehnquist's reasoning is elegant and in its own terms irrefutable.(15) He "start[s] with first principles,"(16) principles that he clearly deems first both as a matter of logic and as a matter of history.

The Constitution creates a Federal Government of enumerated powers.

See U.S. Const., Art. 1, [sections] 8. As James Madison wrote, "[t]he

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."(17)

The act of specifying the powers to be delegated to Congress necessarily assumes the existence of unspecified and thus undelegated powers. As Chief Justice John Marshall wrote of the commerce power in Gibbons v. Ogden,(18) "The enumeration presupposes something not enumerated; and that something, if we regard the language or the subject of the sentence, must be the exclusively internal commerce of a State."(19) Congressional powers are enumerated powers; the enumeration of some powers implies the existence of powers not enumerated: from these two premises, the Lopez majority draws two inferences. First, the commerce power -- and one would assume all congressional powers, but we must return to that issue later -- "is subject to outer limits."(20) Second, the outer limits on the commerce power are judicially enforceable.(21)

Neither of these steps in the Chief Justice's argument is surprising nor do the dissenters challenge them. The crucial step in the Chief Justice's logic, and the point at which he and the dissenters part company, lies in a further inference that Chief Justice Rehnquist clearly draws but nowhere directly states. For the Court to uphold a supposed exertion of the commerce power, the Chief Justice believes that the Court must be able to assure itself that in doing so it has not foreclosed the possibility of invalidating any other federal acts with the same analysis. That is to say, if the argument that must be made to justify a particular statute leaves one unable to hypothesize any piece of legislation that Congress could not lawfully enact under the same reasoning, the argument and the statute stand self-condemned as invalid attempts to ignore the principle of enumerated and limited federal power.(22)

This last step in the Chief Justice's logic made virtually inescapable his conclusion that the Gun-Free School Zones Act is unconstitutional. Neither the Government nor the dissent identified any specific federal legislation that would fall outside the commerce power as they interpret it, and rightly so in Chief Justice Rehnquist's view, for their reasoning did not in fact preserve any discernible area of legislation that the commerce power could not reach.23 "To uphold the Government's contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States."(24)

It is important to be clear about what Chief Justice Rehnquist is implying about the proper approach to construing congressional powers. In effect, Lopez suggests that it is not enough to make the positive argument that a given statute has a substantial relationship to interstate commerce; it is also necessary to make the essentially negative demonstration that one can with logical consistency prove some other, hypothetical statute unconstitutional.(25) This second, negative requirement -- what we might call "the test of consequences" -- serves to confirm that, in upholding the use of the Commerce Clause under review, the Court is not inadvertently "conclud[ing] that the Constitution's enumeration of powers does not presuppose something not enumerated" contrary to the principle of enumerated and therefore limited federal power.(26)

In itself, the Chief Justice's adoption of the test of consequences for demonstrating that a statute lies within the commerce power seems to me entirely sensible. In good common law fashion, Chief Justice Rehnquist is proposing that we test an argument for a proposed answer to an uncertain question by its compatibility with propositions of law we know to be true.(27) We know from the principles of enumeration and limitation that there must be something Congress cannot do. If the consequence of a constitutional argument is that we cannot imagine anything that would be beyond Congress's power under it, that is a powerful indication that the argument is mistaken. More broadly, the test of consequences evidences the Chief Justice's allegiance to the widely held view that the significance of judicial review lies in the actual or potential invalidation of governmental action.

The opinion of the Court in Lopez evidences Chief Justice Rehnquist's concern about preserving the principles of enumeration and limitation. But United States v. Lopez is not the only opinion Chief Justice Rehnquist has written that implicates those principles. The Chief Justice is also the author of South Dakota v. Dole,28 the leading modern case on the scope of Congress's power to spend money. In...