McConnell vs. Breyer:

Via Ted Frank over at, Judge Michael McConnell has a rather devastating (though unfailingly polite) review of Justice Stephen Breyer's Active Liberty in the Harvard Law Review.

As an aside, I'm a bit skeptical of McConnell's conclusion that Supreme Court decisions regarding federal regulation of "intrastate commerce" have been accepted by the nation. Putting aside the issue of whether "the nation" is even aware of the issue, I'm not at all confident that a constitutional amendment mimicking the holding of Wickard v. Filburn, much less Gonzales v. Raich, would pass even today.

UDPATE: Judge McConnell responds in the comments below: "The reason Raich and Wickard are controversial is that they arguably do not involve 'commerce' — not that Congress lacks the power to regulate what is genuinely commerce (albeit intrastate). Just because a particular interpretation is very widely accepted does not mean that every marginal extension of that interpretation is widely accepted."

Yes, that's right, though of course the "public" doesn't understand these fine legal distinctions. The point, I think, is that while public opinion has likely made its peace with a substantial expansion of federal regulatory power relative to the pre-New Deal baseline, I think there is still substantial (even if perhaps not majority) opposition to granting the federal government what in legal terms would be called a general "police power"--the power to regulate everything and anything, subject only to the restraints of the Bill of Rights, which is a reasonable description of the current state of the law.

Meanwhile, Sasha writes: "'Accepted by the nation,' as we know from public choice, isn't the same as 'able to pass if proposed in a constitutional amendment.' Would a constitutional amendment pass that overruled Wickard v. Filburn or Gonzales v. Raich?" Good point, so let me elaborate: my normative baseline is that if "overwhelming public acceptance" (McConnell's words) over time is to give dubious Supreme Court opinions "legitimacy and authority," it should be because these opinions could, if necessary, ultimately be ratitified via the normal Article V process; at least, one should be able to expect a reasonable chance that such ratification would occur. That's likely true of McConnell's other examples: extension of equal protection principles to the federal government, prohibition of sex discrimination by states (despite the failure of the ERA, I think you could likely get the current state of the law ratified), and prohibition of gross malapportionment of Congressional districts in the states.