Boerne....Lane

earl maltz emaltz at camden.rutgers.edu
Mon Nov 29 12:41:35 PST 2004


In fact, Breyer is quite clear on this point.  His opinion states

I would review plausible claims that a copyright statute seriously and
unjustifiably restricts the dissemination of speech somewhat more carefully
than reference to this Court's traditional Commerce Clause jurisprudence
might suggest...this statute involves not pure economic regulation, but
regulation of expression, and what may count as rational where economic
regulation is at issue is not necessarily rational when we focus on
expression...In this sense only, and when line-drawing among constitutional
interests is at issue, I would look harder...at the statute's rationality.

At 02:18 PM 11/29/2004 -0500, Trevor Morrison wrote:
>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.
>> >> >  _______________________________________________ To post, send 
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>> >
>> >
>> >
>
>


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