Until recently the Commerce Clause was viewed as the equivalent of a blank check, a grant of authority from Constitution to Congress limited only by that institutions own sense of restraint. And Congress, sensitive to the needs of the nation and the winds of political fortune, responded with an array of measures that made it seem that nothing lay beyond the reach of a commerce power writ large.
That world changed with the arrival of United States v. Lopez, in which the Court for the first time in almost sixty years found an act of Congress beyond the scope of the commerce power. Or did it? While Lopez became a source of concern and celebration, the Court had little more to say in these matters for the next five years. Then, in short order as these things go a narrow Court majority made it increasingly clear in United States v. Morrison and Solid Waste Agency v. United States Army Corps of Engineers that it was serious: the commerce power must be construed as a power to regulate commerce, and then only those aspects of commerce that are clearly
interstate in nature.
Not everything changed. The substantial effects test remains in place, much to the chagrin of one of the current President's favorite jurists, Justice Thomas. The ability of Congress to regulate or criminalize a wide range of activities persists, reaffirmed in decisions like Jones v. United States. And the Court continues to adhere to the assumption, announced in Garcia v. San Antonio Metropolitan Transit Authority and denounced by key members of the current majority, that the states may be regulated as commercial actors and that under most circumstances redress lies not with the Court but with Congress.
The purpose of this Symposium is to examine the justifications for, content of, and significance of the Courts new Commerce Clause doctrines. Careful attention will be paid to the implications of a body of law that lies at the heart of the modern administrative state. And given the nature of the Court's reasoning, with a majority arguing for a need to remain faithful to original understanding and dissenting Justices lamenting a failure to learn from the lessons of the past, the history of the Clause and the Court's treatment of it will factor greatly in the papers and discussions that follow.
Confirmed participants in this Symposium include: Randy E. Barnett; Mark E. Brandon; Jesse H. Choper; Barry Cushman; James W. Ely, Jr.; Richard D. Friedman; Mark R. Killenbeck; Grant S. Nelson; Saikrishna B. Prakash; Robert J. Pushaw, Jr.; Ronald D. Rotunda; Harry N. Scheiber; Adrian Vermeule; and John Choon Yoo.
The conference will begin the morning of Thursday March 1th and conclude mid-afternoon Friday the 15th. All sessions will be held at the University's Center for Continuing Education. Special room rates have been arranged at the Fayetteville Radisson (501-442-5555), which is adjacent to the Center. Discount airfares are available on American and TWA, through Travel and Transport (1-888-550-8282, ask for Sarah Stone).
Mark R. Killenbeck
Wylie H. Davis Professor of Law
University of Arkansas
Fayetteville, Arkansas 72701
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