The Real "Contract with America": The Original Intent of the Tenth Amendment and the Commerce Clause

I. Introduction In November 1994, the Republican Party took control of the United States House of Representatives for the first time in forty years.(1) This astonishing political event was due in part to the Contract with America, a political and policy document developed by House Speaker Newt Gingrich.(2) A central theme of the Contract with America was the return of power to the States and the revitalization of federalism.(3) Many Americans today are frustrated with the evergrowing federal government,(4) a government whose powers are limited by the United States Constitution.(5) Lawmakers and Governors across the country have tapped into this frustration, offering many proposals to attempt to rebalance the division of power between the states and the federal government.(6) Supporters of this movement to realign the balance of power between the federal government and the states point to the Tenth Amendment of the Constitution as their ultimate source for support.(7) The Tenth Amendment states that [t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.(8) The ideas which motivated the movement to return power to the states entered the 1996 Presidential campaign as well.(9) Former Senate Majority Leader and Republican Presidential nominee Bob Dole constantly carried a copy of the Tenth Amendment while he was on the campaign trail, vowing to dust off the 10th Amendment and restore it to its rightful place in our Constitution.(10) It is the United States Supreme Court that has been doing the dusting, however.(11) It has been less than a decade since scholars believed that the Supreme Court had written off the Tenth Amendment,(12) relegating federalism issues for the national political process to determine.(13) Within the last several years, however, the Supreme Court has attempted to breathe some life back into the Tenth Amendment.(14) Many observers believe the biggest jolt for the Tenth Amendment came in 1995 in United States v. Lopez.(15) For the first time in almost sixty years the Court struck down a federal law because it exceeded Congress' authority to Commerce ... among the several States.(16) In Lopez, the Court held that the Gun-Free School Zones Act(17) Violated the Constitution because possession of handguns in a school zone did not substantially affect interstate commerce and thus was beyond Congress' authority to regulate interstate commerce.(18) While many proponents of federalism applauded the decision,(19) it was only five to four,(20) and the substantial affects test has been a relatively easy standard to meet. This suggests that the holding of Lopez may be limited.(21) What the majority opinion failed to consider is what the Founding Fathers intended by the Tenth Amendment and the Commerce Clause, in which the deepest support for a balanced federalist system lies.(22) The author believes that Lopez is a positive case for advocates of stronger state power. However, these advocates ultimately will be disappointed unless the Court adjudicates future federalism cases through the doctrine of original intent. In order to show this, the Article will proceed in several steps. First, it will discuss the foundations and importance of federalism in our scheme of government.(23) Second, this Article will explain the doctrine of original intent.(24) Third, the Tenth Amendment will be examined through the original intent doctrine.(25) Fourth, the original intent doctrine will be applied to the Commerce power granted to Congress and the effect that it would have on federalism will be discussed.(26) Finally, some general conclusions will be made on the future of federalism.(27) II. The Importance of Federalism An explanation of the essence and importance of federalism is essential before one can understand the importance of the original intent doctrine to federalism's future. …