Judicial abdication during New Deal

t Justice Jackson(Wickard) – We have returned to Marshall’s original understanding of CC as broad enough to reach any activity that, together with other activities similarly situated, has substantial economic effect on interstate commerce.

n C/A. Marshallnever contemplated anything like modern administrative state.

t Professor Bruce Ackerman– USC was effectively amended during New Deal, giving Congress what amounts to general police power.

n It would be strange to think that SC, at point in American history, got con law wrong for decades at a time; only Ackerman’s theory avoids this implication.

n Every judge except Thomasaccepts that Congress has a lot more power than it did before New Deal, and that its power over national economy is plenary.

n C/A. There was no formal Article 5 Amendment in 1930s. But arguably, 1936 election accomplished Article 5’s requirement of consent by supermajority.

t Professor Lawrence Lessig– Background culture has changed, making preexisting doctrinal categories look less persuasive than they previously had, but basic idea of federalism remains part of USC.

n C/A. It is not clear that background cultural assumptions have changed so much that SC’s reversal of course was compelled. Abdications as well as assumptions of authority need principled justification.

t Justice Thomas(Lopez) – New Dealwas unwarranted abdication of judicial responsibility; preexisting case law should not have been overruled, and its categories should be reintroduced into constitutional doctrine. C/A:

n Odd to think that SC got con law wrong for 50 years.

n Even if SC did get con law wrong, returning to old categories would dismantle much of federal government as we know it, with unpredictable consequences.

n Lack of compatibility between 18^th century political theory and modern necessities is not sufficient for Court now to throw country into constitutional crisis. This is why no one else joins Thomas's opinion.

Date: 2015-01-02; view: 818