The Federalism Revolution Did Not Take Place

In 1991, Jean Baudrillard provocatively titled a collection of essays as The Gulf War Did Not Take Place. In the book, Baudrillard did not embrace some bizarre conspiracy theory that the Gulf War was staged like many have contended about the Apollo moon landing. Instead, Baudrillard argued that the invasion of Iraq was not a “war” in any meaningful sense of the word. Although the media treated the run up to the conflict as the beginning of a possible global conflagration, the outcome was preordained. I remember the repeated statement that Iraq had the fourth largest army in the world as a particularly odd statement of propaganda. The death and environmental damage were real, but, to Baudrillard, the non-event could not be termed a “war.”

Baudrillard’s view of the Gulf War is perhaps more applicable to the so-called “federalism revolution” that was led by Justice Rehnquist. As a result of the Court’s opinions in Lopez and Morrison, many legal scholars felt that the Commerce Clause was seemingly reinvigorated as a means of limiting federal power. As hundreds of law reviews embraced the revolutionary narrative, the popular press joined them. To many, the revolution came to a screeching halt with the Court’s ruling in Raich. However, it was still possible to reconcile the doctrine in Raich (as a logical extension of Wickard v. Filburn) with Lopez and Morrison. Whereas marijuana was an economic good, sexual violence and guns were not (although the tension with Lopez was clear). However, with the Court’s recent decision in United States v. Comstock, the legacy of Justice Rehnquist in regards to the Commerce Clause seems to have vanished.

Although the district court and Fourth Circuit panel thought it was clear under Morrison and Lopez that the Commerce Clause could not justify federal civil commitment of certain persons believed to be a threat to commit future sexual violence, the Court embraced the government’s framing of the basis for federal jurisdiction. As there was no economic good at issue in Comstock and the parallel to the VAWA statute in Morrison was strong because of the regulation of sexual violence, the Court treated the case as involving the Necessary and Proper Clause. Justice Breyer created a multi-part test that seemed to remove the word “Necessary” from the Clause and embraced a very broad view of proper exercise of federal power. And how the statutes in Morrison and Lopez would not be justified by the newly crafted test was never explained.

One could simply view the Roberts’ Court’s counter-revolution as having shutdown Justice Rehnquist’s efforts. However, I think it is simpler and more accurate to say that there was never any revolution. The Court never wrote in terms of revolution. Even when deciding Lopez and Morrison, the Court left intact expansive precedents like Wickard. The government’s winning brief in Comstockrelied almost exclusively on precedents before the opinions of Rehnquist’s “revolution.” Like the media in the period before the first Gulf War, legal scholars saw a radical event unfolding. But just like the outcome in the Gulf War was preordained, none of us should be surprised that the hiccup in Commerce Clause jurisprudence represented by Lopez and Morrison was a non-event. And the collective focus of legal scholars on those decisions was, in hindsight, misguided.

And yet the belief in the enduring power of the Commerce Clause as a check on federal power has continued in regard to health care reform. Noted scholars, pundits, and other media have argued that existing doctrine in the area makes the recent federal health care law unconstitutional. Given Raich and Comstock, I admit to being baffled by this belief. The distinction that the government is regulating inaction seems wholly unconnected from the Commerce Clause. That Clause only determines who has the proper jurisdiction to deny liberty (the Feds or the States) – it has not offered a shelter for individuals from government regulation. Of course, no one saw Lopez and Morrison coming. Still, it seems that after Comstock, as a wholly doctrinal matter, the two most famous federalism decisions of the Rehnquist Court should be given their proper stature as minor opinions of little ongoing significance. And claims of a federalism revolution should be treated with skepticism.

Corey Yung

Corey Rayburn Yung is a Professor at the University of Kansas School of Law. His scholarship primarily focuses on sexual violence, substantive criminal law, and judicial decision-making. Yung’s academic writings have been cited by state and federal courts, including the Supreme Court of the United States. Before Yung began his professorial career, he served as an associate for Shearman & Sterling in New York and clerked for the Honorable Michael J. Melloy of the United States Court of Appeals for the Eighth Circuit.

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3 Responses

  1. “Given Raich and Comstock, I admit to being baffled by this belief.”

    I think it’s the persistent belief among laymen that, at SOME POINT, the actual text of the Constitution has got to start mattering. That the judiciary aren’t completely corrupted.

    It’s a naive belief, and there was never much to support it, but it’s been out there. When it finally goes away, so will the popular legitimacy of the courts, I suspect.

  2. Mary Dudziak says:

    Just a note to say that readers of Baudrillard will also have an interest in the work of Paul Virilio, perhaps especially Desert Screen.

    To bring critical analysis of contemporary warfare into perceptions of the Court requires, I think, more of an analysis of the role of the media (or more on the idea of legal scholars as media, which the post seems to suggest), and the way media/media technologies shape perceptions of reality. I’m not sure that the media has been important enough in the are of federalism, and since legal scholars are the principal consumers of their own work, the relationship between media forms and audience is not the same here as it would be in the relationship between media and consumers in a war context. Perhaps cases more directly on rights would be a better fit?

  3. Corey Rayburn Yung says:

    Hi Mary,

    I appreciate the comment, but I think this is one of the few instances where legal academics actually drove the media narrative. My memory of the aftermath of Lopez and Morrison might be off, but I think the media largely turned to law professors to explain the significance of those decisions. And many responded with the idea that Rehnquist had initiated a federalism revolution. The quintessential moment in the first Gulf War for Baudrillard was when the CNN anchor turned over coverage to CNN reporters in Iraq only to discover that the reporters on the scene were actually watching the CNN feed to find out was happening. I think in the case of the federalism “revolution,” the same self-reinforcing dynamic existed except legal academia was the instigator. So, I think the metaphor works, but I appreciate that it is certainly beyond the scope of what Baudrillard considered (especially since he almost never spoke of law).