"Federalism Whether They Want it or Not": The New Commerce Clause Doctrine and the Future of Federal Civil Rights Legislation after United States v. Morrison

52 Pages Posted: 5 May 2008  

Louis J. Virelli III

Stetson University College of Law

David Leibowitz

affiliation not provided to SSRN

Abstract

The Supreme Court's decision in United States v. Morrison represents a continuation of the judicial constriction of Congress' Commerce Clause power that began in United States v. Lopez. Rather than simply distinguishing Lopez and Morrison from its more recent decisions, the Lopez and Morrison Courts revisited interpretive approaches to the Commerce Clause that had lain dormant for more than six decades. This Article first considers Lopez and Morrison in light of the Court's interpretive history with the Commerce Clause. An analysis of this history reveals three dominant interpretive themes, and concludes that the Court's decisions in Lopez and Morrison depart markedly from the interpretive approach taken by the Court since the New Deal. The Article goes on to demonstrate how Morrison in particular signals the resurrection of an interpretive methodology that is more rigidly formalistic and designed to promote more broadly the notion of traditional spheres of state autonomy. Having identified this theoretical shift, the Article discusses the potential implications of this re-emerging, formalistic theory of Commerce Clause jurisprudence for federal civil rights legislation through an analysis of recent constitutional challenges to existing environmental laws.

Keywords: Commerce Clause, Morrison, Lopez, civil rights, federalism, Constitution, Article I, congressional power

JEL Classification: K10, K19

Suggested Citation

Virelli, Louis J. and Leibowitz, David, "Federalism Whether They Want it or Not": The New Commerce Clause Doctrine and the Future of Federal Civil Rights Legislation after United States v. Morrison. University of Pennsylvania Journal of Constitutional Law, Vol. 3, No. 3, 2001. Available at SSRN: https://ssrn.com/abstract=1127277

Louis J. Virelli III (Contact Author)

Stetson University College of Law ( email )

1401 61st Street South
Gulfport, FL 33707
United States
727-562-7329 (Phone)
727-343-9319 (Fax)

David Leibowitz

affiliation not provided to SSRN ( email )

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