 |
The New Republic's Jeffrey Rosen on Eldred and Rehnquist |
|
 |
 |
|
 |
 |
In The New Republic (reg. req.), Jeffrey Rosen takes a good look at the question in Eldred v. Ashcroft of whether the Constitution grants Congress limited powers, which may only be exercised for carefully enumerated purposes (Mouse Trap). He all but calls Chief Justice Rehnquist a hypocrite if he votes to uphold the Sonny Bono Copyright Term Extension Act (CTEA):
If the Court upholds the CTEA while continuing to strike down far less objectionable statutes in the name of limited federal government, Rehnquist's crusade to limit Congress's power will be clearly revealed to be based not on devotion to constitutional text and history but on the political and economic interests that a given law serves.
|
|
 |
| |
 |
Login |
 |
 |
Don't have an account yet? You can create one. As registered user you have some advantages like theme manager, comments configuration and post comments with your name. |
|
 |
 |
Related Links |
 |
 |
|
 |
 |
Article Rating |
 |
 |
|
 |
 |
Options |
 |
"User's Login" | Login/Create an Account | 1 comment |
| The comments are owned by the poster. We aren't responsible for their content. |
|
|
Re: The New Republic's Jeffrey Rosen on Eldred and Rehnquist (Score: 1, Insighful) by Anonymous (Name Withheld on Advice of Counsel) on Wednesday, October 23 @ 09:29:42 EDT | Ah, Rosen's going a bit too far here. He's vulnerable to his own analysis, really. He's saying that statutes should be struck down down not based on principle, but because their effects are objectionable.
The constitutional text argument is important, but Rosen's argument about history is weaker. There really isn't case law on the Copyright Clause. By contrast, most of Reinquist's other opinions have a far greater weight of precedent behind them, even if much of that precedent was abandoned at various points, whether during the New Deal after "the switch in time that saved Nine," or during the Warren Court.
However, it's not as though Reinquist favors economic substantive due process, like the pre-New Deal Court. That would be a far more obvious source of hypocrisy. (Economic substantive due process has a lot of similarities to the Warren Court's jurisprudence, albeit in the economic arena, finding things like an implied right to free contract, and thus throwing out minimum wage laws.)
In any case, Reinquist is much more limited to precedence than other of the Justices. If he really wants a Justice who has seemed interested in devotion to constitutional text and intent, even to the point of new doctrine, he should look at Justice Thomas. Thomas's dissent in City of Indianapolis v. Edmond, for example, argued that all suspicionless police roadblocks are unconstitutional under the Fifth Amendment and the Founders' intent, a position joined by none of his colleagues. |
[ Reply to This ]
|
Leges
humanae nascuntur, vivunt, moriuntur
Human laws are born, live, and die
All stories, comments and submissions copyright their respective posters. Everything Else
Copyright (c) 2002 by the Information Society Project.
This material may be distributed only subject to the terms and conditions set
forth in the Open Publication License, v1.0 or later
(the latest version is presently available at http://www.opencontent.org/openpub/).
You can syndicate our news using the file backend.php
|