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Unpublished Paper
The Constitution Remains in Exile: The Supreme Court’s Shift to the Right has not Signaled a Revival of its Pre-New Deal Commerce Clause Jurisprudence
ExpressO (2011)
  • Steven Morris, New York University
Abstract

I wrote this Paper for a seminar taught by Professor Mario Rizzio at New York University School of Law on the history and modern applications of classical liberal theory. This Paper attempts to provide a concrete answer to the question of whether the Rehnquist Court’s “New Federalism” manifested the Court’s willingness to re-adopt the libertarian construction of the Commerce Clause that predominated prior to the time of the New Deal. This Paper discusses this crucial question in light of the relatively recent development of the “Constitution in Exile” school of thought, which condemns the Court’s post-New Deal movement away from the fundamental legal doctrines that had imposed firm constraints on state and federal power prior to that time.

This Paper is divided into four parts. In Part I, this Paper lays out the philosophical underpinnings of the movement, followed by a comprehensive analysis of the legal foundations in Part II. Then in Part III, this Paper argues in opposition to much of the scholarly literature that while the Court has on a few occasions struck down federal regulatory laws enacted within the last 20 years, this does not mean that the Court is beginning to accept the theoretical underpinnings of the Constitution in Exile movement. In these few cases the Court has simply made decisions using theories and precedents unrelated to the movement’s libertarian approach, which the movement’s proponents happen to agree with. Finally, this Paper concludes by briefly considering the suitability of the current Supreme Court’s expansive Commerce Clause jurisprudence from the perspective of ensuring that Congress does not exceed the permissible scope of its enumerated powers.

Disciplines
Publication Date
January 21, 2011
Citation Information
Steven Morris. "The Constitution Remains in Exile: The Supreme Court’s Shift to the Right has not Signaled a Revival of its Pre-New Deal Commerce Clause Jurisprudence" ExpressO (2011)
Available at: http://works.bepress.com/steven_morris/1/