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Monday, February 28, 2005


We heard today from Professor Primus on problems with originalism. Primus is very smart and I thought the discussion was very interesting.

His argument was different than most attacks on originalism, was not against originalist constitutional interpretation, but against enumerated powers and federalism. His attack was on Lopez, Morrison, and the Section 5 cases rather than on Roe and Lawrence.

The point was that the constitution did not work, evident by the Civil War. Congress has the ability, and has been working to fix the problems, but that the court continues to move back to the structures of the original constitution and limits congress in its efforts. Thus, Lopez, Morrison, Kimel, and Boerne (I don't know if he cares about RFRA) all overturned good progressive legislation where the only fault was its failure to conform to structures of the constitution as originally enacted.

I like the argument because he is claiming not that the countermajoritarian judiciary should be the body making the big decisions, but that the constitution is too difficult to amend, that congress should be able to enact progressive legislation freely.

But we would, of course, be doing away with federalism. We didn't discuss the merits, only whether, regardless of the merits, we should feel bound by the original structure merely because it's the "constitution." A valid point--qualified, however, by the value in stability for stability's stake. But I agree that we should not uphold the constitution merely because that's the way the forefathers built it. The constitution is not necessarily "perfect" (Henry Monaghan, 56 NYUL REV. 353).

But I like federalism.

I like the spreading of risk. I don't know why the federal government will necessarily make correct decisions. Surely federal legislators don't "glow in the dark."

I like different bundles of rights state-by-state. Surely there is not one optimal bundle for the entire country.

So, discussion #2 would be that, even granting Primus' point, he still needs to offer a better plan. I'm still not convinced that federalism is bad, the frictions during civil rights movement notwithstanding. Moreover, to the extent that this is the concern, it seems that Goodridge is proof that states are currently in a better position to be including the out-groups.


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