Rehnquist's leading role in Bush v. Gore in December 2000 was surely his most historic role — it settled a presidential election — but that was a one-night stand that played to mixed reviews. Of greater interest, jurisprudentially speaking, was his opinion for the court in United States v. Lopez , decided 5-4 in April 1995. Through his opinion for the majority, Rehnquist not only annoyed the firm of Stevens, Souter, Ginsburg & Breyer, always a fringe benefit; he also solidly shored up the leaking levees of state powers.
These were the circumstances: In 1990, Congress passed a well-intended law for the protection of schoolchildren. The act made it a federal crime for any person knowingly to possess a firearm within a school zone. On a day in March 1992, young Alfonso Lopez Jr., a 12th-grade student, arrived at Edison High School in San Antonio, Texas. He was carrying a .38-caliber handgun and five bullets. Indicted under the act, Lopez was convicted and sentenced to six months in jail and two years on probation. He successfully appealed. The 5th U.S. Circuit held that the act was unconstitutional: It exceeded the powers delegated to Congress under the Commerce Clause. Lopez' conviction was thus set aside. The high court ringingly affirmed.
"We start with first principles," Rehnquist began. "The Constitution creates a federal government of enumerated powers."
I was at the court on the day the Lopez opinion came down. Hallelujah! I wanted to stand on a chair and audibly applaud. The chief justice was propounding the sound doctrine! In one terse paragraph after another he examined the language and the history of the Commerce Clause. His conclusions were all the more remarkable because they should have been so unremarkable: Only those activities that directly and substantially affect interstate commerce are within the congressional power. Activities that affect interstate commerce only indirectly are beyond the legislative reach. "Otherwise there would be virtually no limit to the federal power." This was an idea that had not occurred to his dissenting colleagues.
In the Lopez case, the government argued that (1) concealed weapons on the premises of a school are threats to the educational process, and (2) threats to the educational process inhibit commerce among the states. Rehnquist was not impressed: "Thus, if we are to accept the government's arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate."
Rehnquist concluded: "The possession of a gun in a local school is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce. ... 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. ... This we are unwilling to do."
Rehnquist was not "eloquent." His particular gift was not to make phrases, but to make sense. In his last term nine months ago, he spoke for a unanimous court in an insignificant case involving a Haitian citizen who had been convicted of drunk driving. He began typically, "Our analysis begins with the language of the statute. ... We must give words their ordinary meaning."
What a guide to statutory construction!
On the bench, Rehnquist ordinarily was a figure fit for Rushmore. He started oral arguments on the dot and ended them on the dot. His canned welcome to newly sworn members of the bar was seldom much warmer than tepid. But he had a lovely sense of humor when he let it go, and court personnel regarded him with unfeigned affection. Young John Roberts has a much-ribboned robe to fill.
(Letters to Mr. Kilpatrick should be sent by e-mail to kilpatjj@aol.com.)
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