Dissents in Morrison

Holding: page 164: 

"With these principles underlying our Commerce Clause jurisprudence as reference points, the proper resolution of the present cases is clear. Gender-motivated crimes of violence  are not, in any sense of the phrase, economic activity. While we need not adopt a categorical rule  against aggregating the effects of any noneconomic activity in order to decide these cases, thus  far in our Nation’s history our cases have upheld Commerce Clause  regulation  of  intrastate   activity  only  where  that  activity  is  economic in nature. . . ."

Souter dissent page 168:

"politics, not judicial review, should mediate between state and national   interests   as   the   strength   and   legislative   jurisdiction   of   the   National  Government   inevitably   increased   through   the   expected   growth   of   the   national economy. . . ."

Breyer dissent page 171:

"Since judges cannot change the world, the “defect” means that, within the bounds of the rational, Congress, not the courts, must remain primarily responsible for striking the  appropriate state/federal balance. . . . Moreover, Congress often can better reflect state concerns for autonomy in the details of sophisticated statutory schemes than can the  judiciary, which cannot easily gather the relevant facts and which must apply more general legal rules and categories. . . ."

 

What are your thoughts? If federalism is really about protecting liberty from concentrated power, who is best able to protect us from that power? Congress which is wielding that power? Or courts applying constitutional safeguards?