ConfirmThem

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Former U.S. Solicitor General Walter Dellinger had a piece in Slate on September 4 titled "In Memoriam: William H. Rehnquist, the Man Who Devised the Natural Law of Federalism." Mr. Dellinger is crassly taking the opportunity of Chief Justice Rehnquist's death to claim that Rehnquist resorted to natural law in the absence of constitutional text, just like liberal justices have done. The only problem is that Mr. Dellinger is wrong.

Dellinger writes:

When serving as the court's most junior justice, he boldly authored a dramatic dissenting opinion in an otherwise routine case called Fry v. United States, a dissent joined by no other member of the court. In his first articulation of his theory of state sovereignty, he frankly stated that his position rested on "no explicit constitutional source" but rather on a "right inherent in [Ohio's] capacity as a State." As my Duke colleague Jefferson Powell noted in 1982, Rehnquist was "neither a strict constructionist nor a practitioner of judicial restraint." He sought, in Fry, to create a natural law of federalism, and over his lifetime, he essentially succeeded. The lonely position he took in 1973 had, by the end of his chief justiceship, become the law of the land.

First of all, if you take a look at the Fry case, you'll see that Rehnquist actually wrote as follows: "In this case, as well as in Wirtz and United States v. California, the State is not simply asserting an absence of congressional legislative authority, but rather is asserting an affirmative constitutional right, inherent in its capacity as a State, to be free from such congressionally asserted authority." Rehnquist was saying what the state was asserting as opposed to what he was asserting (although Rehnquist did take a similar position in that case). More importantly, when Rehnquist wrote that his position rested on "no explicit constitutional source," that obviously did not mean that it rested on no implied constitutional source. A jurist who acknowledges implied powers and implied rights is most definitely not the same thing as a person (like Mr. Dellinger) who would invoke natural law in the complete absence of any express or implied command of the written text.

In any event, regardless of what Chief Justice Rehnquist may have believed about "natural law" in 1973, he later said very clearly in 1980 that our constitutional system is "a system based on majority rule, and not on some more elitist or philosophical notion of 'natural law.'" See Government by Cliché (Transcript of address by William H. Rehnquist) 45 Missouri Law Review 379 (Summer 1980).

In the Court's federalism cases of the past few years, there has been no mention of, nor reliance upon, natural law. For example, here’s what the Court (including Rehnquist) said in Alden v. Maine about how the language of the Necessary and Proper Clause defeats congressional attempts to eliminate a state’s sovereign immunity:

Nor can we conclude that the specific Article I powers delegated to Congress necessarily include, by virtue of the Necessary and Proper Clause or otherwise, the incidental authority to subject the States to private suits as a means of achieving objectives otherwise within the scope of the enumerated powers… When a law for carrying into execution the Commerce Clause violates the principle of state sovereignty reflected in the various constitutional provisions, it is not a law proper for carrying into Execution the Commerce Clause.

So, when Congress tries to use the Commerce Clause to regulate a state government's core functions, Congress needs power over and above what is granted in the Commerce Clause alone, and thus Congress would have to resort to the Necessary and Proper Clause. Despite this clear textual basis for the Court’s sovereign immunity decisions, Mr. Dellinger incorrectly asserts that those decisions are based upon "natural law."

The great political philosopher John Locke wrote these words about "natural law":

[I]n the state of Nature there are many things wanting. First, there wants an established, settled, known law, received and allowed by common consent to be the standard of right and wrong, and the common measure to decide all controversies between them: for though the law of Nature be plain and intelligible to all rational creatures; yet men being biassed by their interest... are not apt to allow of it as a law binding to them in the application of it to their particular cases. Secondly, in the state of Nature, there wants a known and indifferent judge, with authority to determine all differences according to the established law.

JOHN LOCKE, SECOND TREATISE ON GOVERNMENT (1689), §§ 123-125 (titled "Of the Ends of Political Society and Government"). Rehnquist agreed with Locke that "natural law" is not a legitimate basis for government action or judicial decision, absent clear written text. Mr. Dellinger is incorrect. IMHO.

UPDATE: Tony Mauro of Legal Times had a good article about the Fry case in 2003.