As I recall, Professor Clark had more sense than to be my student at Columbia, but I heard a lot about him from admiring colleagues. Clearly he has fulfilled the promise they saw, and this remarkable Symposium is only one indicator of that. The article to which our attention is properly drawn, more than two and a quarter centuries into our nation's history, has an originalist base, tightly and persuasively focused on original understandings of the Supremacy Clause. Professor Clark lays out a cogent account of the Clause's politics and the centrality of its language to the most fundamental of constitutional compromises, that between the large states and the smaller states fearing domination in a world of simple democracy. It was not only, he argues, that the smaller states won Senate representation by state, not population, that could never be changed by amendment; it was also, and perhaps more importantly, that their own capacity to govern their populations, their obligations to place federal law above their own, could be affected only by measures in which the Senate participated – constitutional amendments, statutes, and treaties. Their equality in the Senate, then, had real bite. If the Senate did not participate in the measure, the Supremacy Clause would impose no obligation.
The main point of the analysis presented here is captured by my tile: "The Perils of Theory." We'll start with the text. The words of the Constitution command us all, as the supreme legal document of our polity. But in my judgment, we cannot afford to have contemporary constitutional understandings of that text governed by the particular theoretical understandings that may have animated the choice of those words. So, after addressing the text, we will turn to other matters.
Constitutional Law | Law | Public Law and Legal Theory
Peter L. Strauss,
The Perils of Theory,
Notre Dame L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/853