The Revival of Federalism

Abstract

This article explores the efforts over the past quarter century by the conservative public interest law movement to revive the principle of federalism and, ultimately, the notion that the federal government is one of only limited, enumerated powers. Focussing on the Commerce Clause, the article traces the original meaning of the powers of the federal government over interstate commerce, as those powers were understood by those who drafted and ratified the Constitution, and contrasts that understanding with the expansionist view of the Commerce Clause adopted by the New Deal Court, which became the ruling orthodoxy for more than half a century. It then recounts the efforts of litigators from the conservative public interest law movement to reverse that modern abberation, when after 20 years of defeat after defeat the movement finally obtained a landmark victory in United States v. Lopez, the 1995 decision in which the Court held that portions of the federal Gun Free School Zones Act exceeded Congress's power to regulate commerce among the states. Finally, it reviews some of the Lopez-based challenges to federal environmental laws far removed from interstate commerce, and concludes that the Lopez holding has not been faithfully applied.

Keywords: United States v. Lopez, Commerce Clause, Enumerated Powers, Federalism,

JEL Classification: H10,H11,H77,K32,k40,R52