14th Am, sec. 5 and evaluating the Court

[Volokh, Eugene]

        I certainly see that there are plenty of criticisms that can be made
of the Court's recent caselaw, including its decisions on sec. 5 of the 14th
Am in Boerne, Morrison, and College Savings Bank -- but might not
"megalomania" be a bit too strong a term for this?  I see the point: the
Court is trying to assert its own power at the expense of what is seen by
the critic as the legitimate rights of Congress.  This may well be worthy of
criticism.  But I wonder whether saying that it is "megalomania" and is to
be "despised" might be going a bit too far.  This isn't Napoleon trying to
conquer Europe.  Likewise as to the perceived "barbarism" of not having the
government subsidize poor women's abortions; some might think this is unkind
and poor policy, or even that it's unconstitutional, but isn't "barbaric"
somewhat too strong a term for this?

        I say this in part because I've heard similar criticisms of the
Court in the past -- for instance, of the Warren Court's far greater
accretion of power -- and my perception was that these criticisms proved to
be not terribly helpful to sound academic discourse.  A debate between those
who argue the Court is "megalomaniac" and those who, with equal hyperbole,
say that the Court's critics are, say, "anti-constitutionalists" or
"would-be destroyers of the independent judiciary" seems unlikely to produce
much enlightenment.

        Eugene
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