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The Rehnquist Court and Symbolic Federalism:

In response to my first guest-post, Tom writes:

“I agree with Orin’s comment below that Raich on one level seems unremarkable. But I suppose that it has received enormous attention within constitutional law circles because of the continuing uncertainty about whether Lopez and Morrison repesented just outlying data points in the structure of the Constitution or instead a serious them[e] that would emerge and contradict much of the previous conventional wisdom about federal powers. It looks like today’s opinion pretty decisively answers that question in favor of the former.”

I agree. At the same time, I don’t think this opinion should come as a surprise. When was the last time that the pro-federalism side won in a major federalism case at the Supreme Court? As best I can recall, it’s been a long time; in the last few years, at least since Bush v. Gore, pro-federalism arguments have repeatedly lost.

More broadly, it seems to me that the theme of the Rehnquist Court’s federalism jurisprudence is Symbolic Federalism. If there is a federalism issue that doesn’t have a lot of practical importance, there’s a decent chance five votes exist for the pro-federalism side. Lopez is a good example. Lopez resulted in very little change in substantive law. Yes, the decision struck down a federal statute, but it indicated that Congress could quickly reenact the statute with a very slight change. Congress did exactly that: It re-passed the statute with the added interstate commerce element shortly after the Lopez decision. Lower courts have upheld the amended statute, and the Supreme Court has shown no interest in reviewing their rulings. Because nearly every gun has traveled in or affected interstate commerce, the federal law of possessing guns in school zones is essentially the same today as it was pre-Lopez.

As soon as the issue takes on practical importance, however, the votes generally aren’t there. If anything, the surprise today was that there were three votes for the pro-federalism side.