Federal Legislation and States Rights: Of Hapless Toads, Home-Grown Medical Marijuana, and Wiccan Worship in State Prisons

Abstract

This article assesses the much-touted federalism revival of the Rehnquist Court, and concludes that its success in restoring the Constitution's original limits on federal power was only marginal, at best, for two reasons. First, the Supreme Court's holding in United States v. Lopez was significantly tempered (even made incoherent) by the Court's reaffirmation in the same case of Wickard v. Filburn, the most expansive interpretation of the federal Commerce Clause power rendered by the New Deal Court. Second, the Rehnquist Court never did undertake to restore similar federalism limits to the spending power, yet without such an effort, the commerce clause limits become virtually meaningless.

Keywords: Commerce Clause, Spending Clause, Raich v. Ashcroft, United States v. Lopez, Wickard v. Filburn,

JEL Classification: N40,N50,K32,K10,H77,H73,H70,H50,H23,H10,H11