Boerne....Lane

[Samuel Bagenstos]

A couple of points:

1.  I'm not sure what "McCulloch-like latitude" means.  Even when I was
a government lawyer quoting it in defense of broad congressional power,
I always found McCulloch to be an incredibly ambiguous case, one that
can readily be read to support Boerne.

2.  Eugene is right to point out the positions of Justices Stevens and
Ginsburg in Boerne.  Sure, I think they thought RFRA was
constitutionally flawed for any number of reasons, but they could easily
have declined to join Justice Kennedy's broadly written majority if they
had wanted to.  What I've always thought about this is that Stevens and
Ginsburg don't want to give Congress a blank check any more than the
"Federalist Five" do.  Maybe they're afraid of abortion or
property-rights legislation, or maybe they just believe in robust
judicial review as an ideological or theoretical matter.  Stevens and
Ginsburg have uniformly been on Congress's side in these cases, aside
from Boerne.  But that's in part because the cases have all come up in
the Eleventh Amendment context, and Stevens and Ginsburg (and Souter and
Breyer) *have* been clear that Congress has a blank check to abrogate
state sovereign immunity.


====================================
Samuel R. Bagenstos
Professor of Law
Washington University School of Law
One Brookings Drive
St. Louis, MO  63130
314-935-9097
>>> "Volokh, Eugene" <VOLOKH at law.ucla.edu> 11/27/04 11:54 PM >>>
But isn't it even worse than that?  Since Stevens and Ginsburg joined
the majority in Boerne, do they really believe Congress should have
McCulloch-like latitude under section 5?  (Stevens may have also thought
RFRA was unconstitutional under the Establishment Clause, but he joined
the majority opinion; and Ginsburg joined just the majority, and
declined to join Stevens.)
 
Eugene

	-----Original Message----- 
	From: conlawprof-bounces at lists.ucla.edu on behalf of Sanford
Levinson 
	Sent: Sun 11/28/2004 12:26 AM 
	To: CONLAWPROF at lists.ucla.edu 
	Cc: 
	Subject: RE: Boerne....Lane
	
	
	As I prepare to teach Garrett, Hibbs, and Land on Monday
(following Boerne and Morrison), is it fair to say that a minimum of
seven justices (Breyer, Stevens, Ginsburg, Scalia, Kennedy, Thomas, and
Souter) believe that the cases as a sequence make no sense at all, but
that they disagree 4-3 on the correct decision rule?:  i.e., Breyer,
Stevens, Ginsburg, and Souter would give Congress McCullloch-like
latitude under Section 5, while Kennedy, Thomas, and Scalia would rein
in Congress substantially.  The two deviants, obviously, are O'Connor
(as always) and Rehnquist (in Hibbs).  Isn't this a fairly perfect
example of the difficulty (unto impossibility) of looking for truly
coherent doctrine on a multi-member court that is significantly split?  
I take it that none of us would have much trouble, at least
pedagogically, if one wing or the other had truly prevailed (especially
if the Court had adopted Scalia's "no prophylactic legislation" view,
however dubious it is).  How in the world is one suppoed to take
seriously (or, more to the point, teach our students that they should
take seriously)the alleged differences between Garrett and Hibbs or
Lane?   Doesn't it all  boil down to Justice O'Connor's (unarticulated)
intuitions?  
	 
	sandy