Bait and Switch: Why United States v. Morrison Is Wrong About Section 5

52 Pages Posted: 11 Feb 2014 Last revised: 9 Apr 2015

See all articles by Kermit Roosevelt

Kermit Roosevelt

University of Pennsylvania Law School

Date Written: 2015

Abstract

As the title suggests, the article examines Morrison’s creation of the rule that the Section Five power cannot be used to regulate private individuals. This is one of the most meaningful and, thus far, durable constraints that the Court has placed on federal power. It is the more surprising, then, that it turns out to be based on essentially nothing at all. The Morrison Court asserted that its rule was derived by — indeed, “controlled by” — precedent, but a closer reading of the Reconstruction-era decisions it cites shows that this is simply not the case. An independent evaluation of the rule against regulation of private individuals suggests that it cannot be defended on its own merits. Thus, the article urges that Morrison be overruled.

Keywords: Constitutional law, Supreme Court, U.S. v. Morrison, Section 5 of the Fourteenth Amendment, constitutional meaning, doctrine, and interpretation, federalism, discrimination, civil rights, Violence Against Women Act

Suggested Citation

Roosevelt, Kermit, Bait and Switch: Why United States v. Morrison Is Wrong About Section 5 (2015). Cornell Law Review, Vol. 100, P. 603, 2015, U of Penn Law School, Public Law Research Paper No. 14-4, Available at SSRN: https://ssrn.com/abstract=2393649 or http://dx.doi.org/10.2139/ssrn.2393649

Kermit Roosevelt (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States
215.746.8775 (Phone)

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