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"A Government Of Limited And Enumerated Powers": In Defense Of United States V. Lopez, Steven G. Calabresi

Michigan Law Review

The Supreme Court's recent decision in United States v. Lopez marks a revolutionary and long overdue revival of the doctrine that the federal government is one of limited and enumerated powers. After being "asleep at the constitutional switch" for more than fifty years, the Court's decision to invalidate an Act of Congress on the ground that it exceeded the commerce power must be recognized as an extraordinary event. Even if Lopez produces no progeny and is soon overruled, the opinion has shattered forever the notion that, after fifty years of Commerce Clause precedent, we can never go back to the …

Foreword, Louis H. Pollak

Michigan Law Review

Introduction to the Symposium Reflections on United States v. Lopez

Enumerated Means And Unlimited Ends, H. Jefferson Powell

Michigan Law Review

United States v. Lopez can be read as a fairly mundane disagreement over the application of a long-settled test. The Government defended the statute under review in the case, the Gun-Free School Zones Act of 1990, along familiar lines as a permissible regulation of activity affecting interstate and foreign commerce.

In this essay, I do not address the question whether Lopez was an important decision. My concern instead is with the problem that underlies Lopez's particular issue of the scope of the commerce power: Given our commitment to limited national government, in what way is the national legislature actually limited? …

Commerce!, Deborah Jones Merritt

Michigan Law Review

In this article, I explore the Supreme Court's new definition of "Commerce ... among the several States."9 In Part I, I examine three new principles that Lopez announces and that could significantly rework the Court's Commerce Clause jurisprudence. Part II, however, shows that these principles must be understood in the context of almost a dozen factors narrowing the Supreme Court's Lopez decision. Part II also demonstrates that the lower courts have understood the contextual uniqueness of Lopez and already have distinguished the decision in upholding more than half a dozen broad exercises of congressional authority. Part III then shows that …

How To Think About The Federal Commerce Power And Incidentally Rewrite United States V. Lopez, Donald H. Regan

Articles

Almost sixty years after the "revolution" of 1937, we still do not have an adequate theory of the commerce power. The Court was right to abandon the theory of dual federalism epitomized by Carter v. Carter Coal Co.;' and it has got the right results in the major cases decided since then. But our post-1937 theory, whether before or after Lopez, is a mess. On the one hand, we have a collection of doctrinal rules that, if we take them seriously, allow Congress to do anything it wants under the commerce power. On the other hand, we continue to pay …