Rehnquist's Real Legacy

Over at Salon, legal historian Mark Tushnet writes:

Rehnquist's signature issue as a Supreme Court justice was federalism -- the allocation of some powers to the national government and others to state governments. When he joined the court he was the only justice who cared about limiting Congress' power, and he succeeded in putting the existence of those limits back on the constitutional table. In 1972 the court had only one option when a national law was challenged as being beyond Congress' power under the constitution's "commerce clause": Uphold the law. After Rehnquist, the court has the option of invalidating the law. That's a real achievement.

Whole thing here (sitting through an ad or sub. req.).

I interviewed Tushnet for our July issue. That and other Reason Rehnquistania online here.

Comments

[Rich Ard]

There's a great op/ed piece in the WSJ today along similar lines by Randy Barnett of the ill-fated Gonzales v. Reich.

[R C Dean]

Well, if his legacy is supposed to be revived federalism, then I would say his legacy predeceased him by a couple of months.

[shiki]

Fighting the good fight
for federalism and rights
seems futile these days.

[ai]

bush had rehnquist killed 😀

[quasibill]

I do respect Rhenquist for being the Justice who at least revived the concept, but I agree with RC that federalism is a concept that hasn't taken hold in the SCOTUS. That's to be expected, however. In the original design, the SCOTUS was not intended to be the safe-guard for federalism. The primary check was intended to be the Senate, whose members were to be directly responsible to state governments, not the electorate. The secondary, ultimate check was the right of secession that Lincoln and the Republicans so thoroughly destroyed with the initiation of terror tactics.

So while I recognize Rhenny didn't actually accomplish alot, he fought the good fight in a battle that Jefferson and his ilk would have easily predicted to have been a loser from the start. After all, SCOTUS Justices are picked by federal politicians - if you can trust them to appoint principled jurists, you wouldn't need the principled jurists to restrain them in the first place...