Enumerated Means and Unlimited Ends

Michigan Law Review Volume 94 Issue 3 1995 Enumerated Means and Unlimited Ends H. Jefferson Powell Duke Law School Follow this and additional works at: https://repository.law.umich.edu/mlr Part of the Commercial Law Commons, Constitutional Law Commons, Legislation Commons, and the Supreme Court of the United States Commons Recommended Citation H. J. Powell, Enumerated Means and Unlimited Ends, 94 MICH. L. REV. 651 (1995). Available at: https://repository.law.umich.edu/mlr/vol94/iss3/4 This Symposium is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. ENUMERATED MEANS AND UNLIMITED ENDS H. Jefferson Powell* United States v. Lopez1 can be read as a fairly mundane disa greement over the application of a long-settled test. The Govern ment defended the statute under review in the case, the Gun-Free School Zones Act of 1990,2 along familiar lines as a permissible reg ulation of activity affecting interstate and foreign commerce. The Solicitor General reasoned that the Act's prohibition on the posses sion of firearms in local school zones was a rational means of limit ing 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, im plicitly or expressly, asserts."4 The Lopez majority, however, found that there was no basis on which to conclude that the activity pro hibited 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 ele- * Professor of Law & Divinity, Duke Law School. B.A. 1975, Univ. of Wales; A.M. 1977, Duke; M. Div. 1979, J.D. 1982, Yale; Ph.D. 1991, Duke. - Ed. I thank Gerry Spann for his generous and very helpful comments and Lillian Powell for her invaluable support. 1. 115 s. Ct. 1624 (1995). 2. 18 u.s.c. § 922(q) (1994). 3. See 115 S. Ct. at 1632 (summarizing the Government's argument). 4. 115 S. Ct. at 1659 (Breyer, J., dissenting). 5. See 115 S. Ct. at 1630, 1634. 6. 115 S. Ct. at 1626 (quoting U.S. CoNST. art. I, § 8, cl. 3). 651 652 Michigan Law Review [Vol. 94:651 ment[s ]" 7 in order to demonstrate the close link between what Con gress wishes to regulate and "Commerce . among the several States."8 Lopez, in short, may have little effect on the post-1937 norm of congressional omnicompetence.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 ex actly, how are we to approach the task of constitutional interpreta tion 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 an other, 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.lo At the same time, the sharp divisions among the Justices in Lopezll 7. See 115 S. Ct. at 1631 (discussing the significance of the fact that the Act contained "no jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce"). 8. U.S. CaNST. art. I, § 8, cl. 3. 9. In his dissent, which shrewdly analogizes the majority's reasoning to pre-1937 substan tive due process, Justice Souter suggests that this may in fact be all there is to the decision. See 115 S. Ct. at 1657 ("[T]oday's decision may be seen as only a misstep, its reasoning and its suggestions not quite in gear with the prevailing standard ..••"). For reasons somewhat similar to those I present in this article, Souter raises doubts about his own suggestion: "Not every epochal case," he reminds the reader, "has come in epochal trappings." 115 S. Ct. at 1657 (Souter, J., dissenting). Justice Thomas, at least, clearly sees Lopez as the beginning of something much bigger, but his opinion was not joined by any of his colleagues. See 115 S. Ct. at 1642-43, 1650-51 (Thomas, J., concurring). 10. In doing so, the opinions canvas the original meaning of "Commerce," see 115 S. Ct. at 1643-46 (Thomas, J., concurring), the history of the Court's interpretation of the Com merce Clause, see 115 S. Ct. at 1627-29; 115 S. Ct. at 1634-37 (Kennedy, J., concurring); 115 S. Ct. at 1648-49 (Thomas, J., concurring); 115 S. Ct. at 1652-53 (Souter, J., dissenting), the nature and application of modem Commerce Clause case law, see 115 S. Ct. at 1629-34; 115 S. Ct. at 1649-50 (Thomas, J., concurring); 115 S. Ct. at 1653-57 (Souter, J., dissenting); 115 S. Ct. at 1657-65 (Breyer, J., dissenting), and the correct reading of Gibbons v. Ogden, see 115 S. Ct. at 1626-27; 115 S. Ct. at 1634 (Kennedy, J., concurring); 115 S. Ct. at 1646-48 (Thomas, J., concurring); 115 S. Ct. at 1657, 1665 (Breyer, J., dissenting). 11. The Lopez Justices often sharply disagree about the conclusions to draw from the sources of constitutional interpretation they invoke. Justice Breyer, for example, believes that the dissenters' position rests on a view of the Commerce Clause stemming from Gibbons v. Ogden, 115 S. Ct. at 1665 (Breyer, J., dissenting), while Justice Thomas insists that "Gib bons simply cannot be construed as the principal dissent would have it," 115 S. Ct. at 1648 (Thomas, J., concurring). The fact that Justices Kennedy and O'Connor plainly disagree with Justice Thomas about the implications of Gibbons complicates the picture stili further. Com pare 115 S. Ct. at 1634 (Kennedy, J., joined by O'Connor, J., concurring) (Gibbons recog nized that "the Commerce Clause grants Congress extensive power and ample discretion to December 1995] Enumerated Means, Unlimited Ends 653 demonstrate that despite its fundamental character, the problem of how to construe the Constitution so as to limit the national govern ment 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 major ity opinion written by Chief Justice William Rehnquist, with early attempts to address the same issue. Chief Justice Rehnquist's rea soning, I argue, closely resembles the constitutional logic developed by early Republican theorists such as Madison for the express pur pose of preserving the Constitution's commitment to limited na tional power.12 At the same time, however, Chief Justice Rehnquist, like - virtually13 - everyone who has sat on the Supreme Court since the 1930s, believes that the range of Con gress's legitimate concerns is as broad as "the common Defence and general Welfare,"14 a position that is expressly contrary to, and fun damentally subversive of, the early Republican logic. After this comparison, I then examine the approaches to constitutional inter pretation 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 deci sion such as Lopez may be a questionable judicial intervention into determine its appropriate exercise") with 115 S. Ct. at 1648 (Thomas, J., concurring) (refer ring to "Gibbons's emphatic statements that Congress could not regulate many matters that affect commerce"). 12. I want to note at the outset that Chief Justice Rehnquist undoubtedly views a much wider range of legislation as within the scope of the commerce power than would have oc curred naturally to early constitutionalists. As the Chief Justice notes, the New Deal expan sion of the authority accorded Congress under the Commerce Clause is "[i]n part . a recognition of the great changes that had occurred in the way business was carried on in this country." 115 S. Ct. at 1628; see also 115 S. Ct. at 1637 (Kennedy, J., concurring).

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