Document Type

Article

Publication Date

2010

Abstract

Whatever its status in the statutory interpretation "wars," originalismdriven textualism has assumed an increasingly prominent role in constitutional interpretation, at least within the academy. The focus of this Article is on one such form, namely, "Supremacy Clause textualism",- that is, recent textualist claims about the implications of the Supremacy Clause of Article VI. This Article addresses two such claims.

First, in important articles, Professor Bradford Clark argues that the clause is "at the epicenter of [our] constitutional structure" and it "recognizes only the 'Constitution,' 'Laws,' and 'Treaties' of the United States as 'the supreme Law of the Land."' Displacement of otherwise governing state law can occur only through one of those enumerated modes and "Laws" refers only to Acts of Congress. The consequence is that federal common law-as that concept is now currently understood-and administrative lawmaking are illegitimate, at least when measured by the original understanding.

Second, this Article addresses the claims of true Supremacy Clause textualists. Pointing to "This Constitution" as the "supreme Law," several prominent academics, including Professors Amar, Lawson, and Paulsen, advocate rejection of almost all judicial precedent inconsistent with an original understanding-driven textualism.

This Article examines at length the contestable historical claims of Supremacy Clause textualists, particularly assigning to the Clause a substantial state-protective role while discounting its nationalist foundations. It then turns to Supremacy Clause textualism's internal problems, such as its inability to account for the administrative lawmaking and federal common law that now characterize our constitutional order. It next describes the intellectual world of the founding generation and its understanding of the nature of law, a world that has now disappeared. Finally, this Article challenges those Supremacy Clause textualists-true fundamentalists-who would deny the authoritative nature of precedent in our constitutional system. In the process, this Article doubts that any form of originalism/textualism, either theoretically or in practice, can remotely provide an adequate account of our practice of constitutional adjudication.

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