Question

Chief Justice Marshall's doctrine of national supremacy and Chief Justice Taney's doctrine of dual federalism are being played out in the national and State governments' responses to the Covid-19 "pandemic". For example, C. J. Taney's dual federalism is grouned in the States' police powers, defined as the power to govern men and things . . . to promote the health, safety, morals and general welfare of their respective inhabitantants. In US v. Lopez (1995) Chief Justice Rehnquist cautioned about conferring on the national government general police powers. Drawing from the relevant cases covered in class, (a) what was the basis of C. J. Rehnquist concern and (b) have recent events enhanced or degraded American federalism? Substantiate your answers.

Answer 1

a) C. J. Rehnquist was an American jurist and lawyer who served on the Supreme Court of the United States for 33 years, first as an Associate Justice from 1972 to 1986 and then as the Chief Justice from 1986 until his death in 2005.

Rehnquist grew up in Milwaukee, Wisconsin, and served in the U.S. Army Air Forces during the final years of World War II. After the war's end in 1945, Rehnquist studied political science at Stanford University and Harvard University, then earned a law degree from the Stanford Law School. He clerked for Associate Justice Robert H. Jackson during the Supreme Court's 1952–1953 term, then entered private practice in Phoenix, Arizona.

Considered a conservative, Rehnquist favored a conception of federalism that emphasized the Tenth Amendment's reservation of powers to the states. Under this view of federalism, the court, for the first time since the 1930s, struck down an act of Congress as exceeding its power under the Commerce Clause.

Chief Justice Rehnquist has shown little concern for informational privacy and may undo, not expand, his legacy.

The law can enhance such privacy in two ways: it can punish people who reveal the information (by imposing post-publication penalties), and it can try to safeguard the information in the first place (by denying access). Rehnquist consistently voted to do both. Moreover, he did so whether the offender was the press or the government.

a. Advocating for Privacy in "Private Fact" Cases

Rehnquist's concurrence accused the majority of overvaluing the speech interest and undervaluing the privacy interest at stake:

In his view, a State's interest in preserving the anonymity of its juvenile offenders-an interest that he consider to be, in the words of the Court, of the "highest order"-far outweighs any minimal interference with freedom of the press that a ban on publication of the youths' names entails.

Rehnquist only concurred in the majority's finding that the statute was unconstitutional because, as written, the statute applied solely to newspapers and left radio and television free to publish the juvenile's name.

Rehnquist made clear that he would uphold a revised statute because, for him, privacy outweighed any asserted First Amendment right.

Rehnquist's desire to protect informational privacy was evident again in his dissent in the Court's most recent privacy,

Rehnquist would protect the right to have "private conversation over any claimed First Amendment right to debate matters of public concern.

Rehnquist gutted the protection offered to reports on private persons and private facts, he left untouched, and indeed arguably extended, the protection offered to the press when it reported on public officials and all-purpose-public figures.

b) The greatest changes in constitutional law in the last decade have been in the area of federalism. The U.S. Supreme Court has significantly limited the scope of Congress’s powers under the Commerce Clause and pursuant to section 5 of the Fourteenth Amendment.

Additionally, the Court has revived the Tenth Amendment as a limit on federal authority. The Court also has greatly expanded the sovereign immunity of state governments and has barred suits against them in state and federal court.

Frequently, the Court has justified its protection of state governments as a way of enhancing liberty. For example, Chief Justice Rehnquist wrote: "This constitutionally mandated division of authority was adopted by the Framers to ensure protection of our fundamental liberties

"The separation of the two spheres is one of the Constitution’s protections of liberty."

"Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.

The Supreme Court’s recent federalism decisions repeat the same language as a premise for judicial invalidation of federal laws. Scholars, too, have made this claim.  The Preservation of Individual Liberty Through the Separation of Powers and Federalism: Reflections on the Shaping of Constitutional Immorality.

Advancing freedom is a widely shared goal; the Court’s federalism decisions, which have struck down many popular laws in the last decade, seem far more acceptable if they are understood as protecting liberty.