The opinions in Ashcroft v. Raich

Lawrence Solum lsolum at gmail.com
Mon Jun 6 12:25:34 PDT 2005


Frank writes:

> Well, I'm not carrying a brief for Justice Stevens, but there are a lot of
> us about who don't think that constitutional limitations on federal power
> contained in the Articles are critical to the American system of government.
>  And only history will tell, but I'm pretty confident we won't be viewed as
> the defenders of Plessy are.

And I don't think so either.  My point was simply that a few decades
of history are not sufficient to confer either moral or constitutional
legitimacy on a practice.  The question whether the judicial
nullification of the scheme of enumerated powers is legitimate or wise
is obviously a deeply contested one, but the arguments that bear on
this question must go to the merits to be persuasive.  Frank's initial
argument--that federalism was largely ineffective in the courts for
decades--simply does not establish much--by itself.

On 6/6/05, Frank Cross <crossf at mail.utexas.edu> wrote:
> 
> Well, I'm not carrying a brief for Justice Stevens, but there are a lot of
> us about who don't think that constitutional limitations on federal power
> contained in the Articles are critical to the American system of government.
>  And only history will tell, but I'm pretty confident we won't be viewed as
> the defenders of Plessy are.
> 
> 
> 
> At 12:32 PM 6/6/2005, Lawrence Solum wrote:
> Frank writes,
> 
> >"It seems like we went a few
> > decades without even recognizing such limitations, and today, as the case
> > illustrates, they are far from critical.
> 
> This doesn't seem like the proper criterion--especially in the
> constitutional context.  We "went a few decades" under Plessy, and
> more than a few without significant enforcement of any of the
> provisions of the frist amendment, but presumably those provisions are
> exactly the one's that would be considered "critical" by Justice
> Stevens.
> 
> Larry
> 
> On 6/6/05, Frank Cross <crossf at mail.utexas.edu> wrote:
> > 
> > "Apparently, however, the Constitution's limitations on federal
> > power--critical by any measure to the American system of government--are
> > not a "special concern," or even especially important."
> > 
> > I wonder about this.  I suppose I can see how some emphasize the
> > limitations on federal power, but I hardly think they are critical by any
> > measure to the American system of government.  It seems like we went a few
> > decades without even recognizing such limitations, and today, as the case
> > illustrates, they are far from critical.
> > 
> > 
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> 
> -- 
> Lawrence Solum
> http://home.sandiego.edu/~lsolum/
> 
> Until June 1, 2005:
> University of San Diego School of Law
> lsolum at sandiego.edu
> (619) 260-8876
> 
> After June 1, 2005
> John E. Cribbet Professor of Law
> University of Illinois College of Law
> lsolum at gmail.com 
> 
> **********************************************************
> 
> Frank Cross
> McCombs School of Business
> The University of Texas at Austin
> 1 University Station B6000
> Austin, TX 78712-1178 
> 


-- 
Lawrence Solum
http://home.sandiego.edu/~lsolum/

Until June 1, 2005:
University of San Diego School of Law
lsolum at sandiego.edu
(619) 260-8876

After June 1, 2005
John E. Cribbet Professor of Law
University of Illinois College of Law
lsolum at gmail.com


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