Tony Mauro, the experienced Supreme Court reporter for Legal Times, has this interesting analysis of the Rehnquist Court and the new states' rights or federalism tug of war between the central and state governments.
The odd thing about this tug of war, which began anew in 1995 in the Lopez School Gun Case, after a hiatus since 1937, when the Lochner-era supposedly ended, is that the conservative wing of the Court is defending states which don't seem to be asking to be defended.
In U.S. v. Morrison, (2000), the Court declared unconstitutional Congress's Violence Against Women Act (VAWA) in order to protect the role of the states in our dual system (state and federal systems under one Constitutional umbrella) of government, even though 38 states supported the passage of VAWA. These states apparently didn't feel their toes were being stepped on. The Court took the contrary view.
Some of us had fallen into the bad habit, I guess, of thinking of the U.S. as a bunch of states united under one umbrella called the United States of America. That seems to be wrong, although that's the way the rest of the world may view us.
So rather than the States existing under the U.S.A., both governments, state and central, exist in tandem, side-by-side, harnessed together like a team of horses, under the same Constitution.
The Supreme Court tells them when they can go at each other and when to step back. The Court as lion tamer at the circus, cracking the whip.
We mix our metaphors at will around here. It's Constitutional law, all metaphor, Big Top and Side-Shows, all mixed together, and sometimes it smells.
Peanuts!
And watch out for the elephants.
You know what happens when elephants fight?
The grass gets crushed.
Old African proverb.
I'm glad we've got that cleared up.
Raich v. Ashcroft (2005), pending, the medical marijuana case will be the newest expression on the subject, when decided by next June, the end of the term.
Check out Mauro.