Do the Supreme Court's federalism decisions protect liberty?

[Mark Tushnet]

I'm sorry if my introduction of the Hobbs Act cases was unclear.  I
agree that, under the doctrine articulated in Lopez, there's no problem
with Hobbs Act prosecutions.  (As a statutory matter, there's an "effect
on interstate commerce" jurisdictional trigger, but I agree with
Professor Royster that the Act would be constitutional under Lopez even
without such a trigger, because robbery is an economic activity.  That's
why I think that Lopez doesn't cast doubt on Perez, the
anti-loan-sharking decision involving a statute that -- if I recall
correctly -- didn't have a jurisdictional trigger.)

The problem is that the defense of Lopez *on the ground that it promotes
local decision-making and subsidiarity* should bring the Hobbs Act and
similar statutes into question.  And (to repeat Jack Balkin's original
point), if *that* defense of Lopez isn't available (because, among other
things, it puts the Hobbs Act into question), it's hard to see what
"values of federalism" the Lopez doctrine, qua doctrine, promotes.

Sometimes I frame this concern as the flip side of the Drew Days
problem:  If all that Lopez achieves is the invalidation of a handful of
trivial federal criminal statutes, without limiting in any interesting
way the national government's ability to displace local judgments about
crime policy, why bother?  (The best answer, I think, is that Congress
has to be reminded every once in a while that it does have limited
power.  But, that answer doesn't -- can't -- tell you which federal
statutes should be invalidated.  Indeed, that answer allows -- maybe
even requires -- the essentially random invalidation of some federal
statute every twenty years or so.  And that, in turn, raises for me
questions about whether the answer is one that a court can rely on in
formulating doctrine.)
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