The Living Commerce Clause: Federalism in Progressive Political Theory and the Commerce Clause After Lopez and Morrison

Living Constitution ideas are most often associated with individual-rights guarantees like equal protection and due process, but they were originally developed in the early twentieth century to revolutionize the law of the structural Constitution - including the Commerce Clause. In this Article, Professor Claeys interprets Progressive political theory, which played a crucial role in legitimating the expansion of the national government. As applied to federalism, Progressive living-Constitution theory required that the Commerce Clause be interpreted as a constitutional transmitter letting the national government regulate whatever the American people deem to be a national problem. He suggests that this notion of the living Commerce Clause played an important role in the development of Commerce Clause constitutional doctrine during the New Deal, and that it informs the hostility to recent narrow readings of the Commerce Clause like United States v. Lopez and United States v. Morrison. Professor Claeys then uses these living Commerce Clause ideas to critique contemporary federalism case law and scholarship. At the level of doctrine, living Commerce Clause principles provide a sharper and clearer way to criticize Lopez and Morrison than the leading criticisms to date. At the level of interpretive theory, living Constitution theory highlights the strengths and weaknesses of a great deal of contemporary constitutional-law scholarship, which borrows from the Progressives\u27understandingo f a living Constitution more than it realizes. Finally, at the level of politics, if one understands the influence of and problems with Progressive living Commerce Clause ideas, one is better prepared to judge the political character of government under the constitutional principle that the national government may regulate whatever the American people deem to be a national problem

Takings: An Appreciative Retrospective

Presented at the 2005 Brigham-Kanner Property Rights Conference

Property 101: Is Property a Thing or a Bundle?

This Review Essay has two aims. My more immediate aim is to assess where Merrill and Smith\u27s contribution fits in the market for first-year Property casebooks. In short, Property: Principles and Policies represents an important advance in property pedagogy. By focusing thematically on exclusion\u27s efficiency, Merrill and Smith have captured many important features of property overlooked by other casebooks. My longer-range aim is to advance the reclamation project Merrill and Smith have begun, by clarifying further the work that exclusivity does in property law. Property: Principles and Policies brings contemporary scholarship a long way toward appreciating the virtues of exclusivity, but there is still a long way to go. Merrill and Smith conceive of property at its core as a right to exclude others from a thing. Others of us sympathetic to property\u27s exclusive tendencies prefer to conceive of property as a right exclusively to determine a thing\u27s use

Property 101: Is Property a Thing or a Bundle?

This Review Essay has two aims. My more immediate aim is to assess where Merrill and Smith\u27s contribution fits in the market for first-year Property casebooks. In short, Property: Principles and Policies represents an important advance in property pedagogy. By focusing thematically on exclusion\u27s efficiency, Merrill and Smith have captured many important features of property overlooked by other casebooks. My longer-range aim is to advance the reclamation project Merrill and Smith have begun, by clarifying further the work that exclusivity does in property law. Property: Principles and Policies brings contemporary scholarship a long way toward appreciating the virtues of exclusivity, but there is still a long way to go. Merrill and Smith conceive of property at its core as a right to exclude others from a thing. Others of us sympathetic to property\u27s exclusive tendencies prefer to conceive of property as a right exclusively to determine a thing\u27s use

Natural Property Rights: An Introduction

This Article introduces a symposium hosted by the Texas A&M University Journal of Property Law. The symposium is on a forthcoming book, and in that book the author introduces and defends a theory of property relying on labor, natural rights, and mine-run principles of natural law. Parts I and II of the Article preview the main claims of the book, summarizing part by part and chapter by chapter. The rest of the Article illustrates how the theory introduced in the book applies to a contemporary resource dispute. The Article studies an ongoing lawsuit styled Campo v. United States, now pending in federal court. In Campo, oyster producers are suing the United States for inverse condemnation. The class plaintiffs seek $1.6 billion in just compensation for the U.S. Army Corps of Engineers having (allegedly) killed oysters they were raising when it diverted water from the Mississippi River through a spillway into the Gulf Coast. The Campo case repays study for two reasons. Labor and natural rights are already at play in the Campo litigation. The U.S. government moved to dismiss the plaintiffs’ claims to property in oysters, and when the presiding judge denied that motion he relied in part on natural rights and the labor theory John Locke introduced in his Second Treatise of Government. Separately, the underlying dispute fairly tests any general theory of property. The dispute raises questions about: whether oysters should be private property; whether people should be allowed to claim private property in coastal water bottoms; how property in oysters and water bottoms should be reconciled with public interests in shoreline protection; why have an institution like eminent domain; and how nuisance law should apply to a government-sponsored water diversion into coastal areas. If a theory of property can shed helpful light on all of those issues, it applies broadly enough to constitute a general theory of property, and the theory introduced in this Article satisfies that standard. Along the way, this Article also shows how a labor- and rights-based property theory differs from justifications for property and regulation influential in contemporary law, policy, and scholarship