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74 Tex. L. Rev. 695 (1995-1996)
Judicial Manipulation of the Commerce Clause

handle is hein.journals/tlr74 and id is 715 raw text is: Texas Law Review
Volume 74, Issue 4, March 1996
Judicial Manipulation of the Commerce Clause
Raoul Berger*
The meaning of the power to regulate commerce is to be sought
... in the objects generally understood to be embraced ...
when it was inserted in the Constitution. 
-James Madison
May possession of a gun within one thousand feet of a school be
outlawed under the federal power to regulate interstate commerce? That
issue split the court five to four in United States v. Lopez2 and elicited six
opinions, an unsurprising result, considering that the Commerce Clause has
been a judicial whirligig that responds to shifting personal preferences as
the Court's personnel changes. Such shifts undermine the rule of law and
foster suspicion that the Constitution is merely what the fluctuating
majority of the Justices says it is. If the limits upon delegated power
imposed by a written Constitution are not to be transcended as Marbury
* A.B. 1932, University of Cincinnati; J.D. 1935, Northwestern University; L.L.M. 1938,
Harvard University.
1. Letter from James Madison to Joseph C. Cabell (Mar. 18, 1827), in 3 LErERS AND OTHER
WRITINGS OF JAMES MADISON 571 (New York, R. Worthington 1884).
2. 115 S. Ct. 1624 (1995).
3. Felix Frankfurter wrote to President Franklin Roosevelt:
People havebeen taught to believethat when the Supreme Court speaks it is not they who
speak but the Constitution, whereas, of course, in so many vital cases, it is they who
speak and not the Constitution. And I verily believe that that is what the country needs
most to understand.
Letter from Felix Frankfurter to Franklin D. Roosevelt (Feb. 18, 1937), in ROOSEvELT AND
FRANKFURTE: THEIR CORRESPONDENCE 1928-1945, at 383 (Max Freedman ed., 1967) (emphasis in

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