Society Must Be [Regulated]: Biopolitics and the Commerce Clause in Gonzales v. Raich

Abstract:     
This article - part of a symposium on the recent Gonzales v. Raich decision - makes three points about the case. First, it suggests that Raich complicates the effort to define commerce clause doctrine. Although Raich employed the doctrinal structure created by the Lopez and Morrison decisions, the emphasis was entirely different, and perhaps the only clear doctrinal result of the decision is that pieces of comprehensive regulatory programs will be upheld precisely because they are part of a larger program. Put bluntly, the more Congress regulates, the more it can regulate.

Second, this article contends that Raich exemplifies an idea of government power that assumes the rationality and desirability of regulation and that this assumption dovetails with Michel Foucault's theory of biopolitics, in which the power of the modern state turns on its ability to make live or let die. Specifically, this article explores what it means for constitutional law to accept the biopolitical nature of contemporary government power, particularly in the context of end of life decisions, as well as pain management.

The third, concluding section briefly considers the possibility that biopolitics, while usually described in negative terms, has more complex normative implications.

Keywords: constitutional law, jurisprudence, law and humanities

JEL Classifications: K10, K23

Accepted Paper Series