Indian Civil Rights Act
SLevinson at MAIL.LAW.UTEXAS.EDU
Mon Aug 21 16:09:06 PDT 2000
At 04:24 PM 08/20/2000 -0400, you wrote:
>Just for the record, and specifically with respect to cases like Lopez,
>etc.--once upon a time John Marshall called Congress's power over commerce
>among the states "plenary" too. See Gibbons v.Ogden.
This is no small point. I think, though, that Marshall was using "plenary"
as a synonym for "unreviewable" (i.e., Gibbons was an early version of
Garcia) rather than for "Congress doesn't even have to ask itself what
constitutional constraints might limit their freedom of action." I think
that the "plenary power" doctrine that develops in Kagama, the Insular
Cases, and Curtiss Wright is much closer to the latter (though the Insular
Cases contain interesting language about the limits of either natural law
or "fundamental constitutional values" on Congress's freedom of action).
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