Commerce Clause New Federalism in the Rehnquist and Roberts Courts: Dynamics of Culture Wars Constitutionalism, 1964-2012 ___
Total Page：16
File Type：pdf, Size：1020Kb
COMMERCE CLAUSE NEW FEDERALISM IN THE REHNQUIST AND ROBERTS COURTS: DYNAMICS OF CULTURE WARS CONSTITUTIONALISM, 1964-2012 ______________________________ A Dissertation Presented to The Faculty of the Graduate School University of Missouri ________________________________ In Partial Fulfillment Of the Requirements for the Degree Doctor of Philosophy ________________________________ by ROGER E. ROBINSON Dr. Mark M. Carroll, Dissertation Supervisor December 2017 © Copyright by Roger E. Robinson 2017 All Rights Reserved The undersigned, appointed by the dean of the Graduate School, have examined the dissertation entitled COMMERCE CLAUSE NEW FEDERALISM IN THE REHNQUIST AND ROBERTS COURTS: DYNAMICS OF CULTURE WARS CONSTITUTIONALISM, 1964-2012 presented by Roger Robinson, a candidate for the degree of doctor of philosophy, and hereby certify that, in their opinion, it is worthy of acceptance. Mark M. Carroll, Associate Professor of History, Chair William B. Fisch, Professor Emeritus of Law Robert M. Collins, Professor Emeritus of History John L. Bullion, Professor Emeritus of History Catherine Rymph, Associate Professor of History DEDICATION On the home front, my wife, Mary Kay, helped me figure out that an academic career should be in my future after retiring from the Air Force. She’s been my biggest supporter, counselor, and editor even though the process has included a move, a new job, homeschooling, and the birth of two children in the interim. Equally patient and supportive have been my kids, Benjamin, Arianna, James, Isaac, Joseph, Abigail, and Levi, all of whom are very pleased that the project is now complete. This work, therefore is dedicated to my family without whose love and support I’d have never succeeded. ACKNOWLEDGEMENTS Sir Isaac Newton famously stated that the reason he could see so far was because he stood on the shoulders of giants. I’d never compare myself to Newton, but I would certainly like to acknowledge the giants whose shoulders have borne me through this process of research and writing. As I neared retirement from the United States Air Force, I searched for a school in which to pursue my doctorate. John Bullion graciously welcomed me to the University of Missouri History Department in a way that made it clear that MU was to be my new academic home. He steered me correctly then and continued his wise guidance throughout my academic career. Lawrence Okamura taught me about Rome and challenged me to research republics, ancient and modern, to give me an idea of what our Founders were thinking as they created our own form of government in the late eighteen century; what a great lesson in citizenship! Catherine Rymph guided me through an early paper on the Supreme Court’s actions during the Great Depression, which was the genesis of this work. She taught me how to make large research projects manageable, skills I had to have to make this dissertation possible. The idea of basing my research around the Commerce Clause was the brainchild of Robert Collins. His advice on this project, as well as his oversight while I was his graduate teaching assistant, have both been critical to my development as a researcher and as a teacher. Nancy Taube deserves a special acknowledgement and thanks as she so-well managed a myriad of administrative issues for me over the years. My preparation for this project was not all accomplished within the History Department. I was fortunate to be a research assistant for the State Historical Society of Missouri where I learned a great deal as well. Through Joan Stack I came to appreciate the value of art history as I researched the letters of the artist George Caleb Bingham. Lynn Wolf Gentzler taught me to strive for perfection in editing. Gary Kremer taught me how critical the history of Missouri is to America’s history. Finally, back in the history department, Mark Carroll oversaw my academic career and this project. What great fortune I’ve had to have crossed paths with him as I’ve learned so much from him as a student, as a mentee, and as a friend. ii iii TABLE OF CONTENTS Acknowledgements ii Abstract v Introduction 1 Chapter One THE LONG ROAD TO REGULATION OF EMPLOYER-EMPLOYEE RELATIONS, 1789-1945 55 Two COLD WAR REGULATORY VISTAS: FROM LABOR UNION SUBVERSION TO EQUAL PAY FOR WOMEN, 1946-1963 123 Three REMAKING THE COUNTRY WITH A VIRTUAL POLICE POWER, 1964-1998 183 Four STOP SIGN: GUN-FREE SCHOOL ZONES AND UNITED STATES V. LOPEZ (1995) 255 Five INDIAN CASINOS AND SEMINOLE TRIBE V. FLORIDA (1996) 315 Six VIOLENCE AGAINST WOMEN AND UNITED STATES V. MORRISON (2000) 371 Seven MEDICAL MARIJUANA AND GONZALES V. RAICH (2005) 441 Eight A BRIDGE TOO FAR: OBAMACARE, THE INDIVIDUAL MANDATE, AND N.F.I.B. V. SEBELIUS (2012) 513 Conclusions 541 Epilogue 565 Bibliography 573 Vita 593 iv COMMERCE CLAUSE NEW FEDERALISM IN THE REHNQUIST AND ROBERTS COURTS: DYNAMICS OF CULTURE WARS CONSTITUTIONALISM, 1964-2012 Roger E. Robinson Dr. Mark M. Carroll, Dissertation Supervisor ABSTRACT Commerce Clause New Federalism in the Rehnquist and Roberts Courts describes how interpretation of the Commerce Clause of the Constitution has evolved since the Constitution was first ratified by the several states. It shows how the clause, which was originally included to facilitate trade between the states by removing barriers to trade, evolved into Congress’ primary justification for all kinds of actions that had previously been the domains of the states. The work includes case studies of four controversial cases that occurred when the Chief Justice was William Rehnquist along with a case study of National Federation of Independent Business v. Sebelius decided in the court of Chief Justice John Roberts. The work also makes the case that commerce-clause-based legislation was a critical contributor to the current culture wars occurring in America because each piece of legislation becomes a winner take all proposition with national ramifications. v Introduction Of all the enumerated powers the United States Constitution granted to Congress, perhaps, the most pervasively employed by it is that set out in the Commerce Clause. With the power to regulate interstate commerce, Congress has been able to legislate in such diverse areas as labor, agriculture, civil rights, education, gun control, and drugs, as well as a wide array of criminal activity.1 The marvelously-serviceable language of the Commerce Clause, set out in Section 8 of Article I of the United States Constitution, certainly does not appear obviously fit for such myriad applications: The Congress shall have Power . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes . 2 Before the spring of 1937, Congressional reliance on the Commerce Clause to justify one of its statutes was no guarantee that it would stand up in federal court. However, after the New Deal Supreme Court expanded the scope of the federal commerce power, Congress utilized it unsparingly with virtually no judicial interference for over a half a century.3 The result was an 1 Respectively, the National Labor Relations Act of 1935, the Agricultural Adjustment Act of 1938, the Civil Rights Act of 1964, the Elementary and Secondary Education Act of 1965, the National Firearms Act of 1934, Federal Firearms Act of 1938 and the Gun Control Act of 1968, the Controlled Substances Act of 1970, and the Comprehensive Crime Control Act of 1990 and Violent Crime Control and Law Enforcement Act of 1994. Howard Gillman, Mark A. Graber, and Keith E. Whittington, American Constitutionalism. Volume II. Rights and Liberties (New York and Oxford: Oxford University Press, 2013), 479-736. 2 U.S. Const. Art. 1, Sect. 8. 3 The watershed moment, for better or worse, came on April 12, 1937, when a 5-4 majority of the United States Supreme Court, newly enlightened as to the import of the New Deal engineered by President Franklin D. Roosevelt, rendered its decision in NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937). 1 ever-enlarging federal legal framework and regulatory infrastructure that, ultimately, reached into nooks and crannies of everyday life the Founders never intended. Labor relations, reproductive decisions, and health care, for example, had once been freely managed by self- responsible individuals, households, neighborhoods, churches, civic groups, and, in exigent cases, by municipal, county or state authorities. The rise of the Commerce Clause-based regulatory state, “the fourth branch of government,” insisted critics, ran roughshod over the original constitutional scheme prescribing a dual system of state and federal government, ultimately authorizing unelected federal functionaries to dictate compliance in ways that no county or state government official had ever imagined. Beginning in the mid-1960s, growing congressional employment of commerce power, along with new understandings of individual rights made national by the Fourteenth Amendment, caused local issues concerning matters once deemed beyond the reach of government to take on national political implications. Congress and the United States Supreme Court deployed commerce power increasingly to rearrange the relations of race, class, and gender; the relations between increasingly militaristic law enforcement and newly-invented classes of law breakers; and the relations between human beings, a steadily growing array of protected flora and fauna, and natural resources, climate, and the weather. The stakes at election times became extraordinary high, as the customary celebrations of democracy became winner-take-all