Malla Pollack mpollack at
Mon Nov 29 10:06:10 PST 2004

With all due respect to the experts who have already spoken, I think that
this discussion lumps too much together. I believe that we should remember
to ask , "Too much power over "what"? "  In Eldred v. Ashcroft, the Supreme
Court refused to recognize limits on Congress in Art. 1, Sec 8, cl 8, a
section with wording and history which both strongly support limits on
Congress.  Even though I believe that Eldred's holding is relatively narrow
(Congress has power to extend patent and copyright terms which have already
begun), Ginsburg's opinion for the majority made sure to reject the proposal
to put bite into the standard of review.  


Malla Pollack

Visiting Associate Professor 

Univ. of Idaho, College of Law

mpollack at

208-885-2017 [please note change]


-----Original Message-----
From: conlawprof-bounces at
[mailto:conlawprof-bounces at] On Behalf Of Hamilton02 at
Sent: Monday, November 29, 2004 6:56 AM
To: srbagenstos at; VOLOKH at;
Subject: Re: Boerne....Lane


I think Eugene and Sam are absolutely right here.  There was no question at
the Boerne oral argument that Justice Ginsburg was eagerly engaged in the
issue, and not inclined to the view that Congress has plenary power.  With
Lane, we no longer hear any complaints about the Boerne test (except from
Scalia who now thinks it's too liberal, but what can you do?).  Indeed, it
is worth remembering in Boerne that not a single Justice advocated the
ratchet-up, broad theory advocated by Doug, with the backing of many a law
professor.  Not one.  As Doug would say after the argument, this was a turf
battle.  True.  From Boerne to Lane, it's pretty clear that no one on the
Court is inclined to give Congress effectively unreviewable power.




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.

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