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It Ain’t Over

My friend and faculty colleague Eric Claeys has just published a very fine piece (link no longer available) on the appropriate (conservative) response to NFIB v. Sebelius.

He rejects, as do I, a “the Court has spoken and therefore” theory of the Constitution, in this as in any other case and context. In the terms of the ConLaw trade, we are “departmentalists.” Grrr. We may have funny names but we are not French. The moniker is just shorthand for the contention that constitutional interpretation/construction/development is not a judicial monopoly; other “departments,” also known as branches of government, have a legitimate role.

The danger in insisting on the distinction between the Constitution and a judicial monopoly on its interpretation, especially in the context of modern politics, is that it tends to bring out the rabble. (Don’t think pitchforks. Instead, google “Obama and Citizens United and E.J. Dionne.”) Eric’s judicious piece marks a path for respectful, constructive engagement with the Court and its errors in this case and beyond.

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