“A Government of Limited and Enumerated Powers”: In Defense of United States v. Lopez
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 days of limited national power. The Lopez Court has shown us that we can go back, if we want to, so long as: 1) we can figure out a workable theory of the limits on the federal commerce power; 2) we can agree on the propriety of vigorous judicial review in federalism cases; and 3) we can take proper account of the important reliance interests that have accrued around certain key precedents decided in the past half century.