Kagan and the Commerce Clause

July 22, 2010

On Tuesday this week the New York Times featured an interesting editorial about the Elena Kagan confirmation hearings.  The editorial suggested that the debate over (and Republican resistance to) Kagan’s Supreme Court nomination is not so much a debate about Kagan herself as it is a microcosm of the larger issue of the role of the federal government—and what part the Commerce Clause plays in that role.

Yet dozens of Senate Republicans are ready to vote against her, and many are citing her interpretation of the commerce clause of the Constitution, the one that says Congress has the power to regulate commerce among the states. At her confirmation hearings, Ms. Kagan refused to take the Republican bait and agree to suggest limits on that clause’s meaning. This infuriated the conservatives on the Senate Judiciary Committee because it has been that clause, more than any other, that has been at the heart of the expansion of government power since the New Deal.

The Constitution generally and the Commerce Clause in particular are not something many attorneys have to research, so when the time finally comes a lot of callers can be unsure how to even pull it up on Westlaw.  The Constitution is kept in the USCA database; you can find it near the top of the Table of Contents.  Each clause is broken down into its own document, so it’s easy to focus your research on a section.  For example, looking at the citing references for the Commerce Clause I can see that there are over 25,000 documents on Westlaw discussing it!

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