Cite as: 514 U. S. 549 (1995)
Kennedy, J., concurring
v. Zant, 499 U. S. 467 (1991); Teague v. Lane, 489 U. S. 288 (1989); Rose v. Lundy, 455 U. S. 509 (1982); Wainwright v. Sykes, 433 U. S. 72 (1977).
Our ability to preserve this principle under the Commerce Clause has presented a much greater challenge. See supra, at 568-574. "This clause has throughout the Court's history been the chief source of its adjudications regarding federalism," and "no other body of opinions affords a fairer or more revealing test of judicial qualities." Frankfurter 66-67. But as the branch whose distinctive duty it is to declare "what the law is," Marbury v. Madison, 1 Cranch, at 177, we are often called upon to resolve questions of constitutional law not susceptible to the mechanical application of bright and clear lines. The substantial element of political judgment in Commerce Clause matters leaves our institutional capacity to intervene more in doubt than when we decide cases, for instance, under the Bill of Rights even though clear and bright lines are often absent in the latter class of disputes. See County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573, 630 (1989) (O'Connor, J., concurring in part and concurring in judgment) ("We cannot avoid the obligation to draw lines, often close and difficult lines" in adjudicating constitutional rights). But our cases do not teach that we have no role at all in determining the meaning of the Commerce Clause.
Our position in enforcing the dormant Commerce Clause is instructive. The Court's doctrinal approach in that area has likewise "taken some turns." Oklahoma Tax Comm'n v. Jefferson Lines, Inc., ante, at 180. Yet in contrast to the prevailing skepticism that surrounds our ability to give meaning to the explicit text of the Commerce Clause, there is widespread acceptance of our authority to enforce the dormant Commerce Clause, which we have but inferred from the constitutional structure as a limitation on the power of the States. One element of our dormant Commerce Clause jurisprudence has been the principle that the States may not
579
Page: Index Previous 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 NextLast modified: October 4, 2007