Boerne....Lane

[Trevor Morrison]

Breyer's opinion in Eldred is surely informed by free speech concerns.  But 
I think it would overstate the matter to characterize the opinion as being 
driven *only* by those concerns.  I've seen nothing in the text of the 
opinion that would support reading it as being nothing more than a "First 
Amendment opinion masquerading as a federal power argument."

That said, I agree that Breyer's Eldred dissent articulates a considerably 
more robust view of judicial oversight than, e.g., does his dissent in 
Garrett.  In that sense, his Eldred opinion is not representative of his 
approach to congressional power questions more generally.  Indeed, if one 
reads Eldred together with the Court's other recent decisions regarding 
congressional power (including, e.g., Lopez, Seminole Tribe, Morrison, 
Kimel, Garrett, Hibbs, and Lane), one could argue (and Larry Lessig has, I 
believe) that Souter and Ginsburg were the most consistent across all the 
cases.  In each, they deferred to Congress.  The other members of the 
Eldred majority (Rehnquist, O'Connor, Scalia, Kennedy, Thomas) were more 
deferential in Eldred than in the other cases; Breyer and Stevens were less 
deferential in Eldred than in the others.

I would add two more observations.  First, some might try to justify 
Breyer's and Stevens' positions in Eldred by saying that the Copyright 
Clause provides a better textual justification for a robust judicial limit 
on Congress than does the Commerce Clause or Section 5.  But that's a 
contestable argument.  I, for one, am not prepared to accept that the 
Copyright Clause has only one correct "original meaning," and that Breyer 
has identified it.  Second, as others have already noted, Boerne is the one 
case where Ginsburg voted for a relatively robust judicial limit on 
Congress.  But it would greatly overstate things to read her vote in Boerne 
as a general endorsement of "congruence and proportionality."  Her 
dissenting votes in cases like Kimel and Garrett make that quite clear, I 
think.


Trevor Morrison


Trevor W. Morrison
Assistant Professor of Law
Cornell Law School
116 Myron Taylor Hall
Ithaca, NY 14853
607-255-9023
607-255-7193 (fax)



At 12:12 PM 11/29/2004 -0500, earl maltz wrote:
>It seems to me that he quite explicitly states that his opinion is much
>like Stevens' opinion in Boerne--a First Amendment opinion masquarading as
>a federal power argument.  This characterization would fit far more
>comfortably with the rest of his opinions and positions on federal power
>issues.
>
>
>
>
>
>At 11:17 AM 11/29/2004 -0500, you wrote:
> >Breyer's dissenting opinion in Eldred v. Ashcroft provides powerful, though
> >(arguably) substantively limited, evidence supporting Marci's assertion.
> >
> >
> >Trevor W. Morrison
> >Assistant Professor of Law
> >Cornell Law School
> >116 Myron Taylor Hall
> >Ithaca, NY 14853
> >607-255-9023
> >607-255-7193 (fax)
> >
> >
> >
> >At 11:05 AM 11/29/2004 -0500, earl maltz wrote:
> >>Where is the evidence for this assertion with respect to Breyer and Souter?
> >>
> >>
> >>At 09:55 AM 11/29/2004 EST, Marci Hamilton wrote:
> >> >           it's pretty clear that no one on the Court is inclined to give
> >> >Congress effectively unreviewable power.
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> >
> >
> >
> >