American Constitutionalism in Historical Perspective (packet)

Subject Matter Constraint: bringing guns to school is not an economic transaction. Involves govt regulation of education, traditionally a state matter.

Slippery slope: fear natl intrusion into other traditionally local matters (marriage, divorce, free speech, parental control). Do we want federal intrusion on morals? Need state experiments and less moral homogeneity or else threatens pluralism. But see Breyer dissent arguing that traditional view of ed as a local matter may no longer make sense—it’s a national interest.

Printz v. US, 1997: Brady Act req state officers to conduct background checks w/in 5 days & notify the seller if the person applying was unqualified. Compelling state officers to do work of fed govt. Natl govt can have own enforcement structure but c/n make state officers its ministers (anti-commandeering principle)

US v. Morrison: Questions constitutionality of USC §13981 which provides federal civil remedy for the victims of gender-motivated violence. Majority invokes Lopez not economic about gender related violence in state university. Dissent shows economic impact through studies which showed direct link b/w violence against women vs. their opportunity to advance.

Gonzalez v. Raich: (supp) fed objection to growing marijuana for medical purposes. O’Connor dissent wonders about continuing authority of Morrison and Lopez under Rehnquist ct. Econ vs. nonecon distinction is lost w/ substantial effects test. Majority relies on Wickard b/c just as Wickard relies on homegrown wheat, this is about ppl growing marijuana for their own use. So adequate commerce clause power for this and ignores substantive DP argument, using rational basis. Unlike Lopez and Morrison, activities regulated by the CSA are eco. Debate over whether Necessary and Proper Clause also supports this ban. But even under Wickard marijuana is truly local as opposed to “national mkt” of wheat b/c there is no national mkt for marijuana since it’s banned.

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