University of Pennsylvania Carey Law School Penn Law: Legal Scholarship Repository Faculty Scholarship at Penn Law 2015 Bait and Switch: Why United States v. Morrison is Wrong about Section Five Kermit Roosevelt III University of Pennsylvania Carey Law School Follow this and additional works at: https://scholarship.law.upenn.edu/faculty_scholarship Part of the Civil Rights and Discrimination Commons, Constitutional Law Commons, Courts Commons, Fourteenth Amendment Commons, Jurisprudence Commons, and the Public Law and Legal Theory Commons Repository Citation Roosevelt, Kermit III, "Bait and Switch: Why United States v. Morrison is Wrong about Section Five" (2015). Faculty Scholarship at Penn Law. 748. https://scholarship.law.upenn.edu/faculty_scholarship/748 This Article is brought to you for free and open access by Penn Law: Legal Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship at Penn Law by an authorized administrator of Penn Law: Legal Scholarship Repository. For more information, please contact
[email protected]. \\jciprod01\productn\C\CRN\100-3\CRN302.txt unknown Seq: 1 18-MAR-15 8:28 BAIT AND SWITCH: WHY UNITED STATES V. MORRISON IS WRONG ABOUT SECTION 5 Kermit Roosevelt III† In United States v. Morrison, the Supreme Court announced the rule that the Section 5 power cannot be used to regulate private individuals. This is one of the most meaningful and, thus far, durable constraints that the Court has placed on federal power. It is the more surprising, then, that it turns out to be based on essentially nothing at all. The Morrison Court asserted that its rule was derived by—indeed, “controlled by”—precedent, but a closer reading of the Reconstruction-era decisions it cites shows that this is simply not the case.