Federalism and the Double Standard of Judicial Review

Lynn A. Baker (Texas) & Ernest A. Young (Texas), Federalism and the Double Standard of Judicial Review, 51 Duke L.J. 75 (2001)

Unfinished. Not entirely helpful. Basically, federalism is good, federalism wasn't being enforced before, thank god federalism is being enforced now. Of course, that can be argued with - it's not that federalism wasn't being enforced, it's that the boundary lines were drawn very expansively, and Congress never crossed over them.

Interesting references

Peter M. Shane, Federalism's Old Deal: What's Right and Wrong With Conservative Judicial Activism, 45 Vill. L. Rev. 201 (2000)

Dan Braveman, Enforcement of Federal Rights Against States: Alden and Federalism Non-Sense, 49 Am. U. L. Rev. 611 (2000)

John Gibbons, Our Federalism, 12 Suffolk U. L. Rev. 1087 (1978)

Jurisdictional and Separation of Powers Strategies to Limit the Expansion of Federal Crimes

John S. Baker, Jr. (LSU), Jurisdictional and Separation of Powers Strategies to Limit the Expansion of Federal Crimes, 54 Am. U. L. Rev. 545 (2005)

Basically, new federal crimes are bad, just politically motivated. It's not really Congress's sphere to do these things. It's not entirely clear that his analysis of Morrison and Lopez gibes with mine / what I think is right, e.g. lots of references to "commercial," when I think he should really be saying "economic."

There is, on p.564, an expression of the idea that if the jurisdictional hook can't be proved, then the court should dismiss for lack of jurisdiction. That's great - that's a little bit of support for the syllogism, isn't it? And it's particularly great, because he just kind of assumes - it's just a relatively blithe statement, not really worked out, which is precisely what I want to support the idea that people just understand this. See also p. 565.

The only real use is in the paragraph above - I think I don't really understand Baker's argument, though.

Interesting references

John E. Nowak & Ronald D. Rotunda, Constitutional Law Section 3.3 (6th ed. 2000) - constitutional limitations on federal congressional power turn into limitations on court jurisdiction

The Legal Meaning of "Commerce" in the Commerce Clause

Robert G. Natelson (Montana), The Legal Meaning of "Commerce" in the Commerce Clause, 80 St. John's L. Rev. 789 (2006)

Download here.

I didn't feel the need to read the entire paper because the final forty or so pages seem to be a summary of the evidence that the legal meaning (as contrasted with the common/lay meaning) of "commerce" at the time of the Founding was precisely the same as the lay meaning: exchange, transport, etc. That is, the things that we've expanded "commerce" to include (manufacturing, e.g.) were not included in the meaning of "commerce" in the minds of the lawyers of the time any more than they were in the minds of the non-lawyers.

This is of course important because there were quite a large number of lawyers involved in the drafting of the Constitution.

The above isn't meant to slight the work done by Natelson, since it's clear he did a ton of work - he states, though, that every single source he read said the same thing: "commerce" has the meaning described above, and thus I felt that simply reading the conclusion was plenty for my purposes.

Interesting references

Randy E. Barnett (Georgetown), The Original Meaning of the Necessary and Proper Clause, 6 U. Pa. J. Const. L. 183 (2003).