The Corner

Federalism Limits

More seriously, Ramesh, I think you misunderstand my post. I believe that Congress has the obligtation to properly invoke the source of its alleged constitutional authority whenever it enacts legislation the authority for which is not glaringly obvious. Such authority should not be assumed. Moreover, such statements are particularly important if the ultimate check on Congress is not the courts, but the people. Second, I don’t believe that Congress’ Section V power is subordinate to the Court’s interpretation, but it is subordinate to the substantive guarantees of the Fourteenth Amendment. Here again, if Congress wishes to advance a non-obvious understanding of the Amendment as a justification for legislation, it should assert the basis of its understanding. It has not done so here, and — as you know — I do not believe that the text of the Constitution can justify such an extension of federal power.

Jonathan H. Adler — Jonathan H. Adler is the Johan Verhiej Memorial Professor of Law and Director of the Center for Business Law and Regulation at the Case Western Reserve University School of Law.

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