Steven Calabresi

• Co-Founder of the Federalist Society

• National Co-chairman

• Professor, Northwestern University School of Law

Comparative Law, Constitutional Law, Privatization

• Yale Law School, J.D. 1983.  Note & Topics Editor, Yale Law Journal

• Yale College, B.A., cum laude 1980

• 1987 - 1988 Law Clerk to the Honorable Antonin Scalia, U.S. Supreme Court

• 1984 - 1985 Law Clerk to the Honorable Robert H. Bork, U.S. Court of Appeals for the D.C. Circuit

• SYMPOSIUM: Reflections on the United States v. Lopez:

"A GOVERNMENT OF LIMITED AND ENUMERATED POWERS":

IN DEFENSE OF THE UNITED STATES V. LOPEZ

94 Mich. L. Rev. 752, 830-831.

December 1995

&The prevailing wisdom is that the Supreme Court should abstain from enforcing constitutional limits on federal power for reasons of judicial competence and because the Court should spend essentially all of its political capital enforcing the Fourteenth Amendment against the states instead.  This view is wrong.  First, the rules of constitutional federalism should be enforced, because federalism is a good thing, and it is the best and most important structural feature of the U.S. Constitution.  Second, the political branches cannot be relied upon to enforce constitutional federalism, notwithstanding the contrary writings of Professor Jesse Choper.  Third, the Supreme Court is institutionally competent to enforce constitutional federalism.  Fourth, the Court is at least as qualified to act in this area as it is in the Fourteenth Amendment area.  And fifth, the doctrine of stare decisis does not pose a barrier to the creation of any new, prospectively applicable Commerce Clause case law.

The conventional wisdom is that Lopez is nothing more than a flash in the pan.  Elite opinion holds that the future of American constitutional law will involve the continuing elaboration of the Courts national codes on matters like abortion regulation, pornography, rules on holiday displays and rules on how the states should conduct their criminal investigations and trials.  Public choice theory suggests many reasons why it is likely that the Court will continue to pick on the states and give Congress a free ride.  But, it would be a very good thing for this country if the Court decided to surprise us and continued on its way down the Lopez path.  Those of us who comment on the Courts work, whether in law reviews or in the newspapers, should encourage the Court to follow the path on which it has now embarked.  The country and the world would be a better place if it did. 

            We have seen that a desire for both international and evolutionary federalism has swept across the world in recent years.  To a significant extent, this is due to global fascination with and emulation of our own American federalism success story.  The global trend toward federalism is an enormously positive development that greatly increases the likelihood of future peace, free trade, economic growth, respect for social and cultural diversity, and protection of individual human rights.  It depends for its success on the willingness of sovereign nations to strike federalism deals in the belief that those deals will be kept.  The U.S. Supreme Court can do its part to encourage the future striking of such deals by enforcing vigorously our own American federalism deal.  Lopez could be a first step in that process, if only the Justices and the legal academy would wake up to the importance of what is at stake.