Making a Federal Case of It

November 20, 1994|By GEORGE F. WILL

WASHINGTON — Washington. -- On Election Day, as voters were creating a Congress with a mandate to relimit government, the Supreme Court was hearing arguments in a case involving an old but long-dormant dispute about the limits of Congress' powers.

In 1992 officials at a San Antonio high school caught Alfonso Lopez, a 12th-grader, in possession of a pistol. He was convicted of violating the federal Gun-Free School Zone Act of 1990 which criminalizes possession of firearms in or near schools.

It is no longer startling when Congress asserts that some local problem -- any problem -- comes within its purview, and the 1990 act, another step in the federalization of criminal law, doubtless was compatible with public opinion. But was it compatible with the Constitution?

Lopez may not have been packing a copy of The Federalist Papers along with his pistol, but he subsequently has discovered the sainted James Madison's Federalist 45: ''The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite.'' That idea informs the 10th Amendment: ''The powers not delegated to the United States by the Constitution . . . are reserved to the states respectively, or to the people.''

Between the founding and the New Deal there was constant controversy concerning the Constitution's enumeration of the delegated powers. During the New Deal the federal government slipped the Founders' leash. The judiciary became extraordinarily deferential toward all congressional claims, like the one Congress made in passing the 1990 law, that particular actions were undertaken for the purpose of regulating commerce. Since then the clause delegating to Congress power ''to regulate commerce . . . among the several states'' has been construed by courts with a permissiveness that constitutes the judiciary's dereliction of its duty to confine Congress to exercises of its enumerated powers.

nTC But in September 1993 a federal appeals court, reviving an honorable tradition, said that with the Gun-Free School Zone law Congress acted where it had no constitutional authority to act. The court said that although the 10th Amendment does not ''define the limits of the commerce power,'' its obvious premise is ''that the reach of that power is not unlimited, else there would be nothing on which the 10th Amendment could operate.''

The court said a ''trivial impact on commerce'' does not constitute an excuse for broad general regulation of private activities, such as gun possession. Congress should have to make a detailed finding of substantial impact. Otherwise ''there is no private activity, no matter how local and insignificant, the ripple effect from which is not in some theoretical measure ultimately felt beyond the borders of the state in which it took place,'' and by casuistry Congress can dissolve constitutional limits on its powers.

Barry Friedman of Vanderbilt law school says, ''In order to criminalize conduct under the commerce clause, Congress must regulating interstate commerce.'' But no one, including the government, disputes that Lopez' conduct -- the possession of a firearm near a school (which Texas law criminalized before 1990) -- was purely intrastate in nature.

Glenn Harlan Reynolds of the University of Tennessee law school says that if the Supreme Court sides with Lopez, this will be the first significant ruling enforcing borders of the commerce clause in more than half a century. Mr. Reynolds wishes the court would say that when Congress exercises power based on the commerce clause, the exercise must serve the obvious original intent of that clause, which is ensuring the free movement of goods and services among the states.

Judicial abdication has left Congress the arbiter of its own limits. Congress has been free to justify abuses of its commerce-clause power, such as the 1990 act, by using sophistries such as: gun-free schools enhance education, which enhances commerce, so the 1990 act ''really'' regulates interstate commerce.

During oral arguments on the Lopez case, Justice David Souter said that if Congress can criminalize the possession of firearms by individuals in or near schools ''there is no recognizable limit to Congress' powers.'' What then remains of the Founders' project of limited government?

Congress has earned the disapproval that voters across the nation expressed with ballots on the day the court, sitting across from where Congress sits, heard Lopez' case. It earned disapproval by its incontinent itch to act not merely beyond its competence but beyond its constitutional sphere. The coincidence of the election and the Lopez arguments reflected the simultaneous revivals of venerable, and related, political and judicial philosophies.

9- George F. Will is a syndicated columnist.

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