June 8, 2005
Eldred in Light of Raich
The Supreme Court delivered its decision in Gonzales v. Raich yesterday. Professor Solum’s posts are a good place to catch up; SCOTUS blog
has also been all over it, with too many posts to link. To
(over)simplify: it was to be the decision that showed that the
Rehnquist Court conservative majority was serious about its federalism principles expressed
in Lopez and Morrison and thus would apply them to “liberal” causes, too. Instead, it seems to have rendered those opinions merely symbolic, greatly limiting their key tenets.
As you might recall, the petitioners in Eldred positioned their case in line with Lopez. If
reading the commerce clause as limitless is wrong, then reading the
copyright clause as limitless is equally so. There was incongruity
between the cases – for one, Lopez dealt with states rights – but this underlying principle was still at the heart of both.
When Eldred came down, Professor Lessig questioned whether the “silent five” was truly committed to the principle in Lopez. Mark Raich as an apparent answer in the negative. At least, the five in Lopez did not really share a unified consensus on what the principle was.
Filed by Derek Slater at 3:06 am under General news
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