Ernest A. Young

Just Blowing Smoke? Politics, Doctrine, and the Federalist Revival after Gonzales v Raich

Most assessments of Chief Justice Rehnquist’s jurisprudential legacy have placed federalism firmly at its center. And yet, a full decade after the Court’s revival of limits on the commerce power in United States v Lopez, grave doubts remain about the Chief ’s “Federalist Revival.” Some of these doubts concern the advisability—both as a matter of judicial restraint and of substantive policy—of limiting national power. The doubts upon which I wish to focus here, however, go to the seriousness of the Court’s enterprise. That seriousness might be doubted on two distinct grounds. First, many observers have argued that the Rehnquist Court’s commitment to federalism is unprincipled, that is, that federalism merely provides an instrument for the achievement of politically conservative policy

The Continuity of Statutory and Constitutional Interpretation: An Essay for Phil Frickey

This conference on the work of Philip Frickey as scholar, teacher, and institutional citizen has been an education—a somewhat daunting one—in how to achieve greatness as an academic. As a relatively junior person in this company, I have little to contribute to that discussion. But what I can perhaps document is Phil‘s intellectual influence on a rising generation of scholars in American public law. Like the monks who preserved the classical heritage of Greece and Rome, Phil and his coauthors, particularly Bill Eskridge, have preserved the ―Legal Process‖ jurisprudence of 1950s giants like Henry Hart, Albert Sacks, Herbert Wechsler, and Lon Fuller and transmitted it to contemporary legal scholars. More than this, Phil‘s brilliant elaboration of that jurisprudence in his own work has made the Legal Process approach respectable in a more divided and critical age. As someone who values the wisdom of tradition and believes the Legal Process thinkers still have much to teach us, 1 I consider these to be laudable contributions indeed. This Essay seeks to honor Phil by exploring the contributions of his Legal Process approach to a problem near and dear to his heart: the uses and legitimacy of canons of statutory construction. I focus, as Phil did in his most