In a landmark five-to-four decision last spring, in United States v. Lopez, the Supreme Court announced—for the first time in almost 50 years—that Congress had exceeded its interstate commerce powers. At issue was a federal statute—the Gun Free School Zones Act of 1990—which forbade the carrying of firearms within one thousand feet of a school. In the majority opinion, written by Chief Justice Rehnquist, the Court declared that since the regulation of schools had traditionally been a subject of states, and not the federal government, and since there had been no demonstration that the implicated firearms had been involved in interstate commerce. Congress had no jurisdiction over the problem. As Justice Rehnquist argued, for Congress to invoke the power to regulate matters internal to a state (such as the carrying of guns near schools), the activity in question would have to be “substantially related” to interstate commerce. Since the activity in this case had nothing to do with such commerce, the Court declared that Congress was without the power to regulate. Mr. Alfonso Lopez, who had borne such a firearm, could not be punished under federal law.
For the last few decades the rule of the federal government has been, “If it moves, regulate it!” Ever since the New Deal, it has been routinely argued that virtually everything “substantially affected” interstate commerce, and it was this reasoning that supported, for example, the civil rights laws of the 1960’s. Those acts regulated public accommodations on the theory that the food they served, or the customers who patronized them, had been involved in interstate commerce. Four members of the Supreme Court were still willing to adopt such a theory in Lopez. The newest Justice, Stephen Breyer, wrote in dissent for himself. Justice Ruth Ginsburg, Justice John Paul Stevens, and Justice David Souter (the four now perceived as the Supreme Court’s “liberal” block). Breyer explained that since firearms might harm or interrupt education, and since the interruption or harm to education might result in a threat to economic prosperity, and since diminished economic prosperity of a particular state could result in diminished interstate commerce, the requisite nexus to interstate commerce existed, and therefore Congress had the right to regulate firearms near schools. Even liberal commentators were able to see that Breyer’s reasoning (borrowed from the argument made by the Clinton administration in trying to salvage the Gun Free School Zones Act) could support any congressional regulation of any activity within a state, including marriage, childrearing, or any other traditional preserve of state government.
What could be going on here? To some observers, the Lopez decision can only be explained in light of the ongoing “Tenth Amendment movement,” the attempt (by mostly Republicans) to revive the last number of the Bill of Rights. This amendment, passed because of the Founders’ fear that the federal government would overwhelm, crush, and finally dissolve the state governments, was designed to preserve our system of federalism, or dual federal and state sovereignty. The idea was that the federal government would deal with truly national concerns, such as interstate and foreign trade, national defense, a national currency, and the conduct of foreign relations, and that virtually all other aspects of American life and law would be left to the state governments. The idea behind the Tenth Amendment is that the government closest to the people—i.e., state, not national, government—could best address most of Americans’ problems and ensure the preservation of popular sovereignty itself, the very foundation of the Constitution.
But why is the Tenth Amendment movement suddenly in force? How has it managed, at long last, to sway what may be a majority of the Supreme Court? One explanation is that the federal government has finally grown so big, the deficit so large, and the corruption of federal officials so obvious that even natural defenders of the federal government have grown alarmed. Another reason is the popular perception that the federal government is now dedicated to advancing radical minority opinions, no matter how offensive they may be to cherished American beliefs and traditions. The flag-burning controversy is a prime example.
In Texas v. Johnson (1989), the United States Supreme Court, by a narrow five-to-four majority, overturned about 100 years of constitutional jurisprudence and held that Texas’s statute, which forbade desecration of the United States flag, was unconstitutional because it outlawed “speech” guaranteed by the First Amendment. Flag burning, said the Court’s majority, was simply speech. This was too much for Justice Rehnquist, who, writing for the four dissenters, explained that flag burning wasn’t speech but an outrageous act of arson, more like, in his words, “an inarticulate grunt” than the type of political speech the First Amendment was designed to protect. Moreover, Rehnquist noted, some of the Supreme Court’s greatest champions of First Amendment free speech, most notably Hugo Black and Fad Warren, had quite clearly indicated that punishing flag burning did not run afoul of the First Amendment, because flag burning wasn’t speech.
But the majority’s expansive reading of the First Amendment, in which an extremely wide variety of acts could be interpreted as protected speech, hit a resonant note with the academy and the media, which applauded the majority’s decision as a triumph for cherished rights. Many citizens, however, believing the flag was still worth preserving, beseeched Congress and President Bush. The President dutifully suggested a constitutional amendment to overturn Texas v. Johnson, but instead Congress passed a statute designed to punish flag burning. In 1990, the Supreme Court struck down this statute as well, which has led once again to an attempt to pass a constitutional amendment protecting the flag.
Even though the opponents of the Flag Amendment tried to paint it as a dangerous trampling of American freedoms, at the same time they sought to dismiss it as a trivial concern, not worth raising to a constitutional level. As they did in 1989 and 1990 when the amendment was first discussed, its critics railed at its proponents for attempting to trivialize or “clutter” the Constitution. The question of how something terrifying could be simultaneously trivial was never addressed. But the truth is that the Flag Amendment is neither trivial nor an attack on the Bill of Rights, and one suspects its enemies actually sense this.
Real speech—verbal, written, published, or broadcast—would be unaffected by the Flag Protection Amendment, and no Americans would be barred from expressing any ideas that they can now express. Moreover, the amendment effort is actually an attempt to turn back the tide of “self-actualization” jurisprudence that sustains the liberals’ expansive reading of the First Amendment. It was that jurisprudence—a bastard sort of constitutional reading—that also gave us the right to purchase contraceptives in Griswold v. Connecticut (1965), the “woman’s right to choose” in Roe v. Wade (1973), and the right to ban school prayer in Lee v. Weisman (1992).
Such jurisprudence assumes that the task of the Constitution was to create a national government that would stop the states from interfering with any person’s lifestyle choices. But the Constitution’s Framers were not late 18th-century John Stuart Mills, or precursors of new-age self-improvement mongers. Indeed, the Framers crafted the Bill of Rights in order to restrain the federal government from imposing particular cultural choices on the people of the states. The project of the liberal self-actualizers, then, actually perverts the very purpose of the Bill of Rights, since they seek to straitjacket the states and the federal government into promoting their own limited cultural vision. The Bill of Rights, through a dubious line of Supreme Court decisions which read the 14th Amendment as meaning that virtually all the restraints that the first ten amendments imposed on the federal government should be imposed on the states as well, has been turned into a club to beat back the state governments. That the Bill of Rights was written to guarantee dual sovereignty and federalism has been all but forgotten.
Thus the similarity between the Flag Amendment’s sponsors and the majority opinion in the Lopez decision. The Flag Amendment, insofar as it returns power to the states, is about renewing federalism. But the effort to return to federalism, to return to a regime where the people of the states can exercise their most fundamental right—that of self-government—springs from a realization that a regime that promotes liberty without responsibility is one that will end in anarchy and tyranny.
The Flag Amendment may still fail, of course, because its detractors are legion in the media, the law schools, and the legal profession generally. Their “scare rhetoric” about the First Amendment, as Harvard Law Professor Richard Parker (perhaps the only Harvard faculty member who is a friend of the Flag Amendment) calls it, may yet succeed. Just a few weeks after Lopez, by another five-to-four majority, in U.S. Term Limits, Inc. v. Thornton, the Supreme Court refused to allow states to limit the terms of their federal representatives, even though the Constitution was silent on the question, and even though term limits on federal representatives as a matter of state discretion had apparently been accepted at the time of the passage of the Constitution. The Term Limits case was another blow to federalism, but it was the occasion of a brilliant and cogent dissent by Justice Clarence Thomas, who revived the federalist arguments.
Thomas is emerging as the Court’s most powerful defender not only of original understanding and judicial restraint, but also of federalism, a color-blind Constitution, and a morality that springs from the natural law that undergirds our system of government. Thomas is the Court’s youngest member, he may serve longer than anyone else on the Court, and he is turning into an eloquent foe of liberalism. There is reason to believe, particularly in view of the Court’s recent hostility to race-based remedies, that we are witnessing a rethinking of the liberal constitutional dogmas of the 60’s, 70’s, and 80’s and that a return to our original constitutional foundation is underway. Even the New York Times’ court reporter Linda Greenhouse, the semiofficial voice of the liberal constitutional establishment, has begun to watch with wonder what she calls, borrowing a term from Judge Douglas Ginsburg of the United States Court of Appeals for the District of Columbia, the beginning of the return of the “Constitution in Exile.”
If the Constitution actually returns from “exile,” it will bring with it the Framers’ original understanding that there can be no enduring rule of law without virtue and morality on the part of the people, and that the people’s morality cannot long subsist without the public encouragement and protection of religion. Remembering these nearly forgotten truths will not be easy, but Lopez and the Flag Protection Amendment, and other developments, are encouraging signs. Perhaps the revolutionary recapture of the Constitution has begun.