Federalism and Property Rights: an Examination of Justice Rehnquist's Legal Positivism

Abstract

QO BSERVERS of the decision-making process of the United States Supreme Court have been examining with increased interest the votes and opinions of William H. Rehnquist, who has been an associate justice since 1972. Rehnquist has established a record that has led scholars and journalists to label him variously as a strict constructionist, 1 a revisionist of a particular ideological bent (Fiss and Krauthammer 1982: 20), a justice firmly committed to judicial self-restraint (Rydell 1975: 875), and an activist devoted to achieving the supremacy of political conservatism (Levy 1974: 54). While such labels may have descriptive value, they fail to explain Rehnquist's judicial behavior adequately. Not only do such labels contradict each other, they cannot resolve apparent inconsistencies in his deicisions.2 Consequently, if we are to achieve a thorough understanding of his jurisprudence, it is imperative to look beneath the labels and to identify the values underlying Rehnquist's decisions. The purpose of this paper is to explain Rehnquist's judicial philosophy in terms of the relationships between his methodology and his judicial values. Legal positivism is the methodology that he uses to order the values of federalism and private property. Although positivism is correctly termed a theory of law or a legal philosophy, for the purposes of this paper it is referred to as a methodology because it constitutes a method of applying a theory of law to judicial decision making. Thus, legal positivism incorporates not only a philosophy of law but also a method of reasoning and a distinct method of defining and applying the laws and the Constitution. Rehnquist's methodology of legal positivism leads him to place a preeminent value on federalism and to assign a subordinate value to private property. Owen Fiss and Charles Krauthammer have argued that Rehnquist places a high value on federalism because it is consonant with classical laissez faire theory which reduces the function of government to protecting private exchanges and the aim of the Constitution to protecting the rights and expectations of property holders (1982: 21). They assert, in effect, that for Rehnquist, property rights constitute the controlling value and federalism is a means of protecting that value. In contrast, this paper seeks to demonstrate that, as a result of his adherence to legal positivism, private property is a value that Rehnquist subordinates to federalism.