Document Type
Article
Publication Date
2015
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.
Keywords
Constitutional law, Supreme Court, U.S. v. Morrison, Section 5 of the Fourteenth Amendment, constitutional meaning, doctrine, and interpretation, federalism, discrimination, civil rights, Violence Against Women Act
Publication Title
Cornell Law Review
Repository Citation
Roosevelt, Kermit III, "Bait and Switch: Why United States v. Morrison is Wrong about Section Five" (2015). All Faculty Scholarship. 748.
https://scholarship.law.upenn.edu/faculty_scholarship/748
Included in
Civil Rights and Discrimination Commons, Constitutional Law Commons, Courts Commons, Fourteenth Amendment Commons, Jurisprudence Commons, Public Law and Legal Theory Commons
Publication Citation
100 Cornell L. Rev. 603 (2015)