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Adam Smith’s major works are widely, though not universally, thought to constitute a powerful rebuttal to the critique of civilized life and commercial society in Rousseau’s Discourse on Inequality. This article examines Smith’s few explicit references to Rousseau, all of which denigrated Rousseau without coming to grips with his arguments. The analysis focuses on the only topic that elicited a specific substantive criticism of Rousseau: the origin of languages. This topic, which was seriously pursued by both authors, has the advantage of being unburdened with the normative controversies generated today by their different assessments of commercial society. On this topic at least, Rousseau was more daring and ambitious, which suggests that Smith’s avoidance of a direct confrontation with the radical analysis of human nature and civilized life in the Discourse on Inequality may have been motivated in part by an aversion to Rousseau’s philosophic relentlessness.

The right to keep and bear arms is a vital element of the liberal order that our Founders handed down to us. They understood that those who hold political power will almost always strive to reduce the freedom of those they rule, and that many of the ruled will always be tempted to trade their liberty for empty promises of security. The causes of these political phenomena are sown in the nature of man. The U.S. Constitution, including the Second Amendment, is a device designed to frustrate the domineering tendencies of the politically ambitious. The Second Amendment also plays an important role in fostering the kind of civic virtue that resists the cowardly urge to trade liberty for an illusion of safety. Armed citizens take responsibility for their own security, thereby exhibiting and cultivating the self-reliance and vigorous spirit that is ultimately indispensable for genuine self-government. While much has changed since the eighteenth century, for better and for worse, human nature has not changed. The fundamental principles of our regime, and the understanding of human nature on which those principles are based, can still be grasped today. Once grasped, they can be defended. Such a defense demands an appreciation of the right to arms that goes beyond the legalistic and narrowly political considerations that drive contemporary gun control debates.

Antonin Scalia has had a very significant and healthy impact on the way people talk about American constitutional law. Thanks largely to Justice Scalia’s forceful and eloquent voice, originalism is...

Generations of lawyers have been taught that McCulloch v. Maryland is the foundational precedent that established an expansive view of national power under the U.S. Constitution. In The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland, David S. Schwartz maintains that this is a myth created by twentieth-century progressives in order to make the expansive view they favored seem more venerable than it really is. I am satisfied that he has proved his case, though I am less sure that his revisionist history throws any new light on the spirit of the Constitution. Schwartz’s detailed commentary does sharpen the issues raised by recent efforts to cabin the expansive view of national power that McCulloch supposedly established. He likes what the progressives did with Chief Justice Marshall’s opinion and he laments the federalism decisions that began with United States v. Lopez in 1995. Schwartz thinks McCulloch has now been turned into a “splendid bauble,” but the truth is just the opposite. After thirty-five years, we have a few Supreme Court decisions whose effects have been trivial and whose pretended limits on federal power can easily be evaded. So far, the federalism revival has produced only pretty baubles, and the Court’s opinions promise nothing of any greater significance in the future.

In Bostock v. Clayton County, Georgia the Supreme Court held that Title VII of the Civil Rights Act of 1964 prohibits—and has always prohibited—discrimination by employers on the basis of homosexuality or of what the Court called transgender status. How so? The statute forbids employers to intentionally discriminate against any individual “because of such individual’s . . . sex.” The Court asserted that discrimination because of homosexuality or transgenderism violates the unambiguous text of the statute. This result in this case decision would not have been much of surprise in the period during which Justice Anthony Kennedy held the controlling vote on issues dealing with sex, and especially with homosexuality. But the 6-3 majority opinion in Bostock was written by Justice Neil Gorsuch and joined by Chief Justice John Roberts. The majority opinion has virtually no policy analysis or political rhetoric, and it lacks the kind of inflated pseudo-philosophic pontification that Kennedy favored. Instead, the Bostock opinion presents itself as nothing more than a straightforward application of the legally binding text of the statute. Justice Gorsuch even goes out of his way to cast himself as the legitimate intellectual successor to the man whom he literally succeeded: the high priest of statutory textualism, Justice Antonin Scalia. Leaving others to speculate about judicial motives, I propose that Bostock is an extension of a theory commonly called “living originalism.” During the last decade, this approach to constitutional interpretation has been gaining steam in the legal academy. Bostock has now effectively extended that approach beyond the academy, beyond the field of constitutional interpretation, and even beyond the limits recognized by its academic adherents. Bostock is a demonstrably outlandish judicial performance. Outlandish though it is, Bostock might be used by the Court to correct one of its most egregiously mistaken lines of case law. Although Title VII unambiguously forbids employers to discriminate on the basis of race or sex, the Court has upheld quotas and preferences explicitly based on the race or sex of people in favored groups. In 1991, Congress amended Title VII by adding a new provision whose text unambiguously overruled the decisions that upheld these preferences. Even without using the peculiar new form of textualism deployed in Bostock, the Supreme Court should have recognized that the 1991 amendment deprived these precedents of any binding force they may once have had. The Court has not done so, but Bostock now imperatively requires the Court to declare that Title VII forbids, and has always forbidden, these illegal employment practices.

Reva B. Siegel and Joseph Blocher have focused attention on an underappreciated dimension of the debate about the constitutional right to keep and bear arms. They reject a narrow concept of “public safety” that evaluates regulations solely in terms of physical safety, without adequately recognizing the public’s interest in securing a “a foundation for community and for the exercise of many of our most cherished constitutional liberties.” At this level of generality, I agree. But I do not agree that an appropriately broad conception should widen the discretion of legislatures to impose restrictions on firearms. The issue that Siegel and Blocher raise is especially important during this time of politically inspired riots and flaccid government responses to mob violence. The most practically important Second Amendment issue that is ripe for Supreme Court resolution concerns the scope of the constitutional right to bear arms in public. The Constitution’s text and history offer little direct guidance, and the Justices will inevitably have to decide how to resolve the conflicts of interest that occur when governments seek to promote public safety by depriving individuals of the means to protect themselves. The single most foundational principle on which our liberal regime rests is the inherent right of self-defense against violent assaults, whether from common criminals or political activists or tyrannical governments. The Second Amendment’s core purpose is to insulate that right from improper government interference. But protecting the right to keep and bear arms also serves a broader civic purpose. An armed citizenry displays the spirit of courage and self-reliance on which genuine self-government depends. That spirit should be honored and defended more than ever in times of civil unrest, and especially when governments have responded passively or with perverse encouragement to mob violence.

Bush v. Gore was a straightforward and legally correct decision. For more than a quarter century, the Supreme Court has treated the stuffing of ballot boxes as a paradigmatic violation of the Equal Protection Clause. Much more subtle and indirect forms of vote dilution have also been outlawed. Like some of those practices, the selective and partial recount ordered by the Florida Supreme Court may have been an inadvertent form of vote dilution. But that recount had effects that were virtually indistinguishable from those in the paradigmatic case. There is no meaningful difference between adding illegal votes to the count and selectively adding legal votes, which is what the Florida court was doing. The Supreme Court rightly concluded that the vote dilution in this case violated well-established equal protection principles. Nor did the Supreme Court err in its response to this constitutional violation. Although the Court acted with unprecedented dispatch after the Florida court's December 8, 2000 decision, it was highly improbable that a legally proper recount could be conducted by the December 18 deadline set by federal law. And it was quite impossible for such a recount to meet the December 12 deadline that the Florida court itself had found in Florida law. Contrary to a widespread misconception, the U.S. Supreme Court properly accepted the Florida court's interpretation of state law and provided that court with an opportunity to reconsider its own interpretation of state law. When the clock ran out, it was entirely due to mistakes and delays attributable to the Florida court. The Supreme Court's majority opinion has been subjected to a barrage of political criticisms of a kind that might more fittingly be directed against a Senate Majority Leader or a Secretary of State. Ironically, it is precisely because the Justices correctly applied the law that they have been accused of having partisan motives.

Like everything else in the Bill of Rights, the Second Amendment originally restrained only the new federal government. This left the states free to regulate weapons as they saw fit, just as they were free to regulate such matters as speech and religion. The Supreme Court did not invalidate a federal statute under the Second Amendment until 2008, and it was only in 2010 that a regulation adopted pursuant to state law was struck down. These two decisions — District of Columbia v. Heller and McDonald v. City of Chicago — prompted a stream of litigation that may eventually put significant constraints on legislative efforts to regulate the possession and use of weapons. As this is written in July 2017, however, it seems more likely that the Court’s decisions will prove to have very limited practical effects. It is worth recalling the Rehnquist Court’s Commerce Clause decision in United States v. Lopez, which set off celebrations and lamentations about a federalism revolution that has yet to come about. Similarly, the Roberts Court has so far shown only that the Second Amendment does not leave governments with absolutely limitless regulatory power. This contribution to American Federalism and Public Policy (edited by Christopher P. Banks) begins with a brief sketch of the legal and historical background that set the stage for Heller and McDonald. After a description of those cases, the chapter surveys the application of the decisions by the lower courts. The chapter concludes with an analysis of the Supreme Court’s response to the case law developed by the lower courts.

Until very recently, same-sex marriage would have been regarded as a contradiction in terms. Today, questioning the merits of this novel institution is treated as rank bigotry, and the extraordinary rapidity of the change has been widely noted. Another recent development, perhaps not unrelated, has been the marriage of originalism and living constitutionalism. As an academic theory, originalism arose to counter what was seen as lawless adventurism in the Warren and Burger Courts, displayed especially in opinions that invoked the Fourteenth Amendment without a meaningful effort to interpret its text or to show that the decisions had anything to do with the original purpose of the Amendment. As an academic theory, living constitutionalism, or noninterpretivism, arose in defense of these decisions, which were seen as worthy innovations. Advocates on both sides thought the two theories were irreconcilable. Originalists maintained that judges should respect the original meaning of the written Constitution, namely its text, read when necessary in light of its enactors’ purposes. Noninterpretivists insisted that the original meaning is often impossible to identify and frequently should not be controlling in any event. Professor Jack M. Balkin’s “living originalism” seeks to eliminate the opposition between these theories, and he is open about his agenda: “The notion that in order for liberals to believe in a living Constitution they have to reject originalism in all of its forms is the biggest canard ever foisted on them.” To adapt President Jefferson’s famous statement in his First Inaugural Address, Balkin exhorts us to agree that we are all originalists, we are all living constitutionalists. Perhaps he hopes to hasten the day when originalists meet the same fate as the Federalist Party. If so, he has already made substantial progress. This essay begins with a brief summary of the core features of Balkin’s theory. It then shows that one of his most prominent converts has abandoned originalism, mistakenly believing that Balkin has shown what originalism truly is.

Professor Andrew Jay McClurg maintains that the Second Amendment has been used to create a right to store firearms negligently. It is conceivable that some such thing could happen, just as the Supreme Court has used the First Amendment to require plaintiffs who are public figures to prove more than negligence in defamation actions. But Professor McClurg presents no evidence to support his claim. To accept his claim that the Second Amendment has caused courts to distort the application of standard tort principles, we would have to believe that they secretly relied on the Second Amendment and that they undertook this insidious project before they believed there was a legal basis for what they were doing. This is completely implausible. Professor McClurg, however, makes two additional claims that require a more extended response.First, he maintains that courts have misapplied well-established tort principles in refusing to hold the victims of gun thefts liable for injuries subsequently inflicted with the stolen weapons. This is wrong. Courts are simply applying traditional tort doctrines — including proximate cause and limits on duties to protect strangers from wrongdoing by others — when they refuse to impose liability on a gun owner whose unsecured gun is stolen and subsequently used to commit a crime. Second, Professor McClurg contends that legislatures have irresponsibly failed to impose objectively reasonable safe-storage duties on gun owners. Unfortunately, he has conflated his personal policy preferences with what is objectively reasonable. He advocates a rule requiring gun owners to store their guns in a sturdy, non-portable gun safe whenever they are not within the owner’s immediate control. This rule simply assumes away the costs of safe-storage practices, which include the expense of gun safes and the risk of being unable to quickly access the gun in an emergency. Furthermore, the imposition of such a duty — whether by courts or legislatures — would raise serious Second Amendment questions.

Rousseau’s Discourse on Inequality describes the primitive condition that he thinks was most durable and most conducive to human happiness. Elizabeth Marshall Thomas studied an indigenous African population that is probably descended from people who never left the area in which modern humans evolved, and had until recently undergone less cultural evolution than any other living people. Thomas’ study of these people supports Rousseau’s conjectures about the nature of early social life and enriches his account with a detailed analysis of the social practices that have made this way of life especially durable. The new evidence she supplies is consistent with Rousseau’s claim that human happiness does not require political government or what we call civilized life.

Having previously addressed the nature of man by looking at his primitive origins, Rousseau’s most ambitious book reopens the question of human nature through a fictional education of an ordinary child in a modern society. Taking Locke and Plato as foils, Rousseau imagines that a wise teacher could follow nature by very artfully arranging for a boy’s moral or social passions to emerge in a different order than they do in actual societies. The greatest challenge, which requires the most art, is to guide the boy into marriage. Deeper and more disturbing than the Letter to d’Alembert, this fiction illuminates the complexity and fragility of the happiness that can be found in traditional family life.

Rousseau did not believe that we could or should return to the primitive condition that he thought most conducive to human happiness. This chapter examines the highly original way in which he used insights drawn from Plato’s Laws to defend institutions adopted in the Republic of Geneva against threats posed by Enlightenment philosophy. His Letter to d’Alembert analyzes the subversive effects on human happiness of decadent art and the accompanying distortions of relations between the sexes. Traditional family life, the indispensable and fragile basis for the kind of liberal society promoted by Enlightenment thinkers, is threatened by the cosmopolitan principles those thinkers advocate.

Rousseau offers a complex response to the Western philosophic tradition that finds the best and most natural way of life within civilization. Rousseau agrees with that tradition in regarding speech as the defining human characteristic, and in seeking to take nature as a guide for human life. He offers a novel theory of the origin and evolution of human languages, which enabled our ancestors to become human and then to develop the social and individual pathologies that plague us today. This chapter compares Rousseau’s conjectures with the findings in several fields of modern science that bear on human evolution. Those findings are consistent with all of the major themes in Rousseau’s account.

This chapter complements the treatment of natural science in the first two chapters. The American Constitution is the most successful application of the Enlightenment’s new political science, and Rousseau was deeply skeptical about its promises. Nevertheless, his Social Contract and Considerations on the Government of Poland offer considerable support for important features of America’s constitutional arrangements. At the same time, Rousseau’s analysis points to the merits of certain dissident or subdominant strains in American political thought. American students of politics should reconsider the widely held view that Rousseau is a useless or dangerous guide for us. The chapter uses an important decision of the U.S. Supreme Court to show how Rousseau’s analysis of political legitimacy can throw new light on contemporary political issues.

Until recently, the federal courts agreed that the Second Amendment protects the interest of states in maintaining their own militias. In United States v. Emerson, the U.S. Court of Appeals for the Fifth Circuit rejected this consensus, and held that the Constitution protects a right of private individuals to keep and bear arms. The fifth circuit's position is more plausible than the consensus view, and the arguments for treating the Second Amendment as a kind of federalism device are weak. A different set of federalism issues is raised by the prospect that the Supreme Court might adopt the fifth circuit's position, and then take the next step of applying the Second Amendment to the states through the Fourteenth Amendment. Finally, Emerson shows how certain technical legal doctrines that protect the dignity of he states can operate to strengthen the federal government's ability to undermine protections afforded by the Second Amendment. Copyright 2003, Oxford University Press.

Rousseau’s New Heloise, the most popular novel of the eighteenth century, transformed the author from a celebrated philosopher into the object of a cult. It also transformed the history of literature through its influence on giants like Goethe, Flaubert, Stendhal, and Tolstoy. Today, however, the New Heloise is seldom read and even less often enjoyed. This paper aims to recover Rousseau’s novel for our time.

In his first public statement as a political philosopher, Rousseau offered an intriguing aside:"Men will always be what is pleasing to women: if then you want them to become great and virtuous, teach women what greatness of soul and virtue is. The reflections this subject provokes, and which Plato made in bygone times, greatly deserve to be better developed by a pen worthy of following such a master and of defending a cause so great."The reflections to which Rousseau refers are found primarily in Plato’s Laws, and were eventually developed by Rousseau himself in his Letter to D’Alembert on the Theater. This article takes a new look at the education of women in the Laws, and then shows how Rousseau made use of the dialogue in addressing a specific issue of political reform during his own time. The apparent inconsistency between some of Rousseau’s most important recommendations and those found in the Laws actually reflects a deeper agreement about the principles on which such reforms should be based. Those principles have largely been forgotten or implicitly rejected in our political and legal culture. They have not been proved wrong.

This essay, which is aimed primarily but not exclusively at audiences in the field of philosophy, originated in a lecture prepared for a series on "Natural Moral Law and Contemporary Society" at the School of Philosophy of the Catholic University of America. Using the Supreme Court's sodomy and abortion decisions as introductory examples, the essay briefly discusses the roots of judicial hubris in American constitutional law. The essay then looks more deeply into an institutional transformation rooted in Montesquieu's insight that it is both necessary and impossible to de-politicize the judicial function. The politically moderating role performed by judges in Montesquieu's English constitution does not translate easily into the American system of written constitutions with judicial review. The essay argues that the U.S. Supreme Court is not qualified to correct written human law through appeals to higher laws, including the natural moral law, and that this conclusion is consistent with the understanding of law both in our Constitution and in St. Thomas Aquinas' Summa Theologica.

This contribution to a symposium on direct democracy is devoted primarily to exploring Rousseau's modification of the natural rights liberalism initiated by Hobbes and Locke. Although Rousseau may not have had a large direct influence on American political institutions, he has a kinship with certain important dissident or subdominant strains in American political thought, such as the Anti-Federalists and our contemporary communitarians. To the extent that these elements of our political culture are worth taking seriously, Rousseau's greater depth of thought may help us to understand them better, and perhaps better than they have understood themselves. After examining the theoretical critique offered in Rousseau's most openly philosophic work, the Discourse on Inequality, the paper argues that the Social Contract is not so much an effort to establish the true basis of political legitimacy as it is an effort to show why and how legitimacy is an inadequate criterion for evaluating political institutions. The theoretical issue involving the legitimacy of representative legislatures illustrates Rousseau's approach. A careful examination of the Social Contract's presentation of the general will, and of its apparently unqualified condemnation of all representative legislatures, suggests that this condemnation is deliberately overstated. That conclusion is confirmed by Considerations on the Government of Poland, which accepts the necessity of representative legislatures in large states and suggests techniques for reconciling that necessity with the genuine principles of the Social Contract, which do indeed imply a certain kind of superiority of direct democracy over representative legislatures. The paper then turns to the Term Limits decision of the U.S. Supreme Court. The Court's decision, in addition to being legally wrong, appears to have been a particularly dangerous decision when viewed in light of Rousseau's political science. The paper concludes with a brief discussion of Rousseau's analysis of institutions like our Supreme Court. Rousseau's analysis suggests that we should consider significant changes, such as abolishing life tenure and putting a stop to the use of stare decisis in constitutional cases.

A lengthy Harvard Law Review essay by Laurence H. Tribe - eroG v. hsuB and its Disguises: Freeing Bush v. Gore from its Hall of Mirrors - reaches the following conclusion about the Court's holding in that case: EQUAL PROTECTION, MY ASS! Notwithstanding Professor Tribe's vulgar expression of contempt for the Court, his essay is extremely sophisticated, and it deserves to be read carefully. Much of Professor Tribe's essay is taken up with peripheral discussions, the daunting volume and dazzling intricacy of which serve primarily to distract the reader's eye from the absence of any solid arguments that can support his two principal conclusions about the decision in Bush v. Gore. Those two conclusions can be stated very simply: the Court's equal protection ruling was untenable as a matter of law, and the case in any event was technically nonjusticiable. On the basis of these conclusions, Professor Tribe renders this further verdict: the five Justices in the Bush v. Gore majority have little but disdain for Congress as a serious partner in the constitutional enterprise, and not much patience with 'We the People' as the ultimate source of sovereignty in this republic. It is Professor Tribe's accusations that are genuinely untenable, and he is forced to rely entirely on sleights of hand in order to make them look like the results of a detached and sober analysis. This article explains why a large majority of the Supreme Court (7 out of 9) and a near majority of the Florida court (3 out of 7) have no reason at all to be embarrassed by their conclusion that equal protection was violated by the Florida court, and why Professor Tribe's arguments about justiciability are spectacularly indefensible.

INTRODUCTION 1556 I. A BRIEF HISTORY OF SUBSTANTIVE DUE PROCESS 1557 A. The Impertinent Origins of Substantive Due Process...... 1558 B. Substantive Due Process Returns to Respectability 1561 C. Prom etheus Bound? 1565 D Prometheus Unbound 1568 E. Prometheus Rebound? 1571 II. THE LAWRENCE OPINION 1573 A. The Court's Ascent into More Transcendent Dimensions 1575 B. Transcending Prior Doctrine 1578 C. Transcending America 1580 D Exploring More Transcendent Dimensions 1582 III. CAN LAWRENCE BE DEFENDED? 1586 A. Lawrence as Sophisticated Law 1586 B. Lawrence as Textual Interpretation 1590 IV. THE COSTS AND BENEFITS OF LAWRENCE 1597 V. GLUCKSBERG REDUX AND THE ELIMINATION OF THE GRISWOLD-ROE-LAWRENCE LINE 1607

For many, the exemplars of the unethical government lawyer are Attorney General John Mitchell and Counsel to the President John Dean, both of whom were sent to prison as a result of their excessively loyal service to President Nixon. Every attorney should easily acknowledge both that a lawyer has a high ethical duty of loyalty to his client and that this duty does not excuse, let alone require, the commission of crimes. Extreme examples like Mitchell and Dean can tempt us with the diametrically extreme view articulated by Attorney General Edward Bates: "[T]he office I hold is not properly political, but strictly legal; and it is my duty, above all other ministers of state, to uphold the law and to resist all encroachment, from whatever quarter, of mere will and power."' Such vacuous pieties did not prevent Bates from adopting an exceedingly generous view of President Lincoln's legal authority when political circumstances so demanded,2 and it may well be doubted whether any government lawyer holding a political appointment has ever truly treated his office as completely apolitical.

Infanticide, like most other species of homicide, is probably coeval with the human race itself. In modern Western civilization, what were formerly the most powerful incentives to infanticide have virtually disappeared. As with other social problems that affluence has seemed to solve, however, infanticide has reappeared in a new form that seems to have been made possible by affluence itself. This "new infanticide" occurs in a place whose very existence is the result of a tremendously wealthy society's devotion to its most vulnerable and least “useful” members. The modern neonatal intensive care unit, which treats, and often saves, extremely ill newborn children, who during most of history would surely have died, has proven to be a setting where many of the age-old incentives for infanticide have begun to operate again. The “new infanticide” consists of withholding food or needed medical treatment from selected infants who suffer from one or more serious, though treatable, medical problems. The national government has now enacted legislation designed to curtail the practice of infanticide by the medical profession. This paper traces the genesis of that legislation, explores the problem to which it is addressed, and evaluates its prospects for success.

The Supreme Court’s immigration jurisprudence is fundamentally misguided, in the sense that it has little basis in the original meaning of the Constitution. In this essay, I will explain why I think so, and what the Court might do to ameliorate the effects of its past mistakes without overruling a raft of settled precedents. Part I analyzes the text of the Constitution, which offers a reasonably clear allocation of authority over immigration between the state and federal governments. The Foreign Commerce Clause empowers Congress to limit the entry of aliens onto American soil, and the Naturalization Clause authorizes Congress to set uniform criteria for admission to American citizenship. Nothing on the face of the Constitution permits Congress to displace the states’ residual authority over aliens, which includes the power to exclude or expel unsuitable persons from their own territory. Part II reviews early debates in Congress about the scope and nature of federal power over immigration. There were important disagreements, some of which resemble today’s policy debates, but Congress generally refrained from going much beyond what the text of the Constitution pretty clearly authorizes. Part III traces the evolution of Supreme Court doctrine. The Court began by rooting federal immigration authority primarily in the Foreign Commerce Clause, where it belongs, but then misinterpreted that Clause. In the late nineteenth century, the Justices made a dramatic and largely unexplained shift to a non-textual theory under which broad federal authority over immigration and aliens is treated as an inherent aspect of American sovereignty. Part IV shows that this doctrinal shift may not have had much practical significance. In non-immigration contexts, the Court eventually interpreted the Commerce Clause itself in a way that gave Congress practically the same far-reaching authority that the inherent power theory bestows in the immigration field. Thus, even if the Court had stuck with the Foreign Commerce Clause as the primary source of federal authority over immigration, the result would likely have been much the same as what the Court has mistakenly put in its place. Part V assumes that the Court is very unlikely to reconsider the well-established inherent power theory. In recent decades, however, the Justices have been experimenting with doctrinal devices designed to put some limits on the almost unlimited Commerce Clause authority that previous cases had mistakenly conferred on Congress. The paper concludes with two examples showing how these limiting doctrines can and should be used to resolve recent controversies in which some states have desired to pursue policy objectives to which federal officials object.