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Current & Recent Research at Penn Law

File: [View Document]
Author: Roosevelt, Kermit
Citation: Bait and Switch: Why United States v. Morrison is Wrong About Section 5, 100 CORNELL L. REV. 603 (2015).
Date Published: 2014
Date Posted: 02/10/2014
Subjects: Public Law and the Constitution
Keywords: Separation of Powers
Civil Rights
Constitutional Law
Federal Courts
Jurisprudence
Law and Equality
Abstract:
As the title suggests, the article examines Morrison’s creation of the rule that the Section Five power cannot be used to regulate private individuals. This is one of the most meaningful and, thus far, durable constraints that the Court has placed on federal power. It is the more surprising, then, that it turns out to be based on essentially nothing at all. The Morrison Court asserted that its rule was derived by—indeed, “controlled by”—precedent, but a closer reading of the Reconstruction-era decisions it cites shows that this is simply not the case. An independent evaluation of the rule against regulation of private individuals suggests that it cannot be defended on its own merits. Thus, the article urges that Morrison be overruled.