ROBERTS AND THE COMMERCE CLAUSE: Supposedly, the Democratic questioning of Roberts is going to focus mainly on his views of the Commerce Clause. That would interest me, since I’d like to know those myself, especially in light of the Supreme Court’s recent retreat from its holdings in Lopez and Morrison that — until this term — suggested it was taking the notion of constitutional limits on the commerce power.
Here’s a paper I wrote for the Cato Institute back before the Lopez decision, spelling out why this is important. And here’s an article I wrote for the Vanderbilt Law Review (with the catchy title “Is Democracy Like Sex?”) that spells out the important ways that federalism and limited government help to prevent the onset of what Jonathan Rauch calls “Demosclerosis.”
Lower courts were never very enthusiastic about implementing Lopez and Morrison, though. Brannon Denning and I looked at how those decisions fared in two articles surveying their reception in the Courts of Appeals and District Courts. The subtitle in this one, from the Wisconsin Law Review, tells the story: “What if the Supreme Court Held a Constitutional Revolution and Nobody Came?” This later installment noted that things were beginning to turn around, but that seems less likely to continue, post-Raich, unless Bush appoints people who are serious about enumerated powers and limited government, which — given that Bush himself doesn’t seem terribly serious that way — seems doubtful.
Denning, by the way, is coauthor (with Boris Bittker) of a Commerce Clause treatise, Bittker on the Regulation of Interstate and Foreign Commerce,