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How many ways can conservatives spin an originalist tale to support their deregulatory, small-government vision? The answer is apparently infinite. In a new book, Gary Lawson and Guy Seidman are the latest in a long line of scholars who insist that the real original meaning of the Constitution demands unwinding the regulatory state and substantially limiting the power of the federal government. They argue that the Constitution is a fiduciary instrument, specifically a power of attorney. After summarizing the book, this essay turns to three of its most important failings, each of which serves to make the book a work of politics, not history. In the end, their account is imaginative but their Constitution is imaginary.

This Essay, written for a symposium asking "Is the Rational Basis Test Unconstitutional?,†defends the bifurcated-scrutiny approach of Carolene Products and its famous footnote four. A growing cadre of conservative and libertarian scholars has called for increased scrutiny of legislation affecting economic rights. The Essay marshals four types of arguments to suggest that regulation of market activities should not be subject to the same, heightened, level of scrutiny as legislation affecting personal rights: moral arguments, constitutive arguments, consequentialist arguments, and arguments resting on the likelihood of illicit legislative motives.

It is a pleasure and a privilege to write an introduction to this Symposium celebrating Dean Erwin Chemerinsky's important new book, The Case Against the Supreme Court. Chemerinsky is one of the leading constitutional scholars of our time and a frequent advocate before the U.S. Supreme Court. If he thinks there is a case to be made against the Court, we should all take it very seriously indeed. Chemerinsky's thesis may be stated in a few sentences. The primary role of the Supreme Court, in his view, is to "protect the rights of minorities who cannot rely on the political process and to uphold the Constitution in the face of any repressive desires of political majorities." Canvassing the Court's performance over two centuries, he concludes, first, that it has failed dismally at those tasks. Nevertheless, he reaches two additional conclusions: he believes that we can and should expect the Court to do better, and he outlines reforms that might help it do so. Chemerinsky makes a strong case that the Court has historically failed to live up to its role. His primary historical examples-from Dred Scott v. Sanford and Plessy v. Ferguson to Buck v. Bell and Korematsu v. U.S.-are widely thought of as reprehensible. His contemporary examples are more controversial, as Professor Brian Fitzpatrick's contribution to the Symposium illustrates, but Chemerinsky really doesn't need those examples to support his conclusions.) Where there is room for argument is on his second and third conclusions: Is it reasonable to expect the Court to live up to Chemerinsky's expectations, and how can we help ensure that it does so? In the pages that follow, constitutional scholars address these questions.

This Article argues that the Erie doctrine should be normalized by bringing it into line with ordinary doctrines of federalism. Under ordinary federalism doctrines-such as the dormant commerce clause, implied preemption, federal preclusion law, and certain special "enclaves" of federal common law courts will displace state law to protect federal interests even when neither Congress nor the Constitution clearly articulates those interests. But under the Eric doctrine, the Supreme Court has mandated exactly the opposite approach: state law trumps federal interests unless those interests have been legislatively codified. This striking anomaly has not been noticed, in part because the voluminous literature on Erie has failed to recognize that the Erie doctrine is a response to the same problem addressed by ordinary federalism doctrines: In the absence of an explicit congressional or constitutional directive, how should courts sitting in diversity jurisdiction respond to clashes between state law and unarticulated (that is, uncodified) federal interests? This Article explains that Eric's unconventional answer to the problem of unarticulated federal interests is a fluke of history. Pivotal decisions about the Erie doctrine, unlike pivotal decisions about ordinary federalism doctrines, occurred at a time of heightened concern about judicial overreaching. Those concerns distorted the Court's decision making, and Erie's response to the common federalism question consequently diverged from ordinary federalism. Recognizing and putting aside the distorting influence clears a path to re- envisioning the doctrine and replacing the current Erie analysis with the familiar and established framework of ordinary federalism. Doing so simultaneously brings Eric back into line with ordinary federalism, increases judicial transparency, and resolves tensions within the existing Erie doctrine.

It is a pleasure and a privilege to write an introduction to this Symposium celebrating Dean Erwin Chemerinsky's important new book, The Case Against the Supreme Court. Chemerinsky is one of the leading constitutional scholars of our time and a frequent advocate before the U.S. Supreme Court. If he thinks there is a case to be made against the Court, we should all take it very seriously indeed. Chemerinsky's thesis may be stated in a few sentences. The primary role of the Supreme Court, in his view, is to "protect the rights of minorities who cannot rely on the political process and to uphold the Constitution in the face of any repressive desires of political majorities." Canvassing the Court's performance over two centuries, he concludes, first, that it has failed dismally at those tasks. Nevertheless, he reaches two additional conclusions: he believes that we can and should expect the Court to do better, and he outlines reforms that might help it do so.

Sanford Levinson calls for a new constitutional convention in Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It). This review explains how Levinson overstates the Constitution's defects and understates the risks of submitting it to a constitutional convention for revision. It exposes the hidden biases in Levinson's analysis and defends the counter-majoritarian aspects of the Constitution that Levinson criticizes. Chemerinsky is one of the leading constitutional scholars of our time and a frequent advocate before the U.S. Supreme Court. If he thinks there is a case to be made against the Court, we should all take it very seriously indeed. Chemerinsky's thesis may be stated in a few sentences. The primary role of the Supreme Court, in his view, is to "protect the rights of minorities who cannot rely on the political process and to uphold the Constitution in the face of any repressive desires of political majorities." Canvassing the Court's performance over two centuries, he concludes, first, that it has failed dismally at those tasks. Nevertheless, he reaches two additional conclusions: he believes that we can and should expect the Court to do better, and he outlines reforms that might help it do so. Chemerinsky makes a strong case that the Court has historically failed to live up to its role. His primary historical examples-from Dred Scott v. Sanford and Plessy v. Ferguson to Buck v. Bell and Korematsu v. U.S.-are widely thought of as reprehensible.In the pages that follow, constitutional scholars address these questions.

This Article argues that the Erie doctrine should be normalized by bringing it into line with ordinary doctrines of federalism. Under ordinary federalism doctrines – such as the dormant commerce clause, implied preemption, federal preclusion law, and certain special "enclaves†of federal common law – courts will displace state law to protect federal interests even when neither Congress nor the Constitution clearly articulates those interests. But under the Erie doctrine, the Supreme Court has mandated exactly the opposite approach: State law trumps federal interests unless those interests have been legislatively codified. This striking anomaly has not been noticed, in part because the voluminous literature on Erie has failed to recognize that the Erie doctrine is a response to the same problem addressed by ordinary federalism doctrines: In the absence of an explicit congressional or constitutional directive, how should courts sitting in diversity jurisdiction respond to clashes between state law and unarticulated (that is, uncodified) federal interests? This Article explains that Erie's unconventional answer to the problem of unarticulated federal interests is a fluke of history. Pivotal decisions about the Erie doctrine, unlike pivotal decisions about ordinary federalism doctrines, occurred at a time of heightened concern about judicial overreaching. Those concerns distorted the Court's decision-making, and Erie's response to the common federalism question consequently diverged from ordinary federalism. Recognizing and putting aside the distorting influence clears a path to re-envisioning the doctrine and replacing the current Erie analysis with the familiar and established framework of ordinary federalism. Doing so simultaneously brings Erie back into line with ordinary federalism, increases judicial transparency, and resolves tensions within the existing Erie doctrine.

Richard Epstein's new book, The Classical Liberal Constitution, is the latest entry in what might be called conservative foundationalist constitutional theory. The movement's primary goal is to elevate judicial protection of economic rights to the same level that is currently accorded to non-economic or personal rights, and thus to make it much more difficult for the government to regulate economic activity. Freedom of contract, for these theorists, is on a par with freedom of speech, and property rights are as important as privacy rights. Epstein's version of the theory, although sophisticated and nuanced, is ultimately unpersuasive for reasons I catalogue in Part I of this essay. But the book's real flaw lies in the underlying belief that Epstein shares with other conservative foundationalists: that economic and personal rights are equivalent and should be treated accordingly. Indeed, as I suggest in Part II, even Epstein himself seems to occasionally hesitate to take this premise to its ultimate conclusion. And it turns out that the whole issue of the equivalence of economic and personal rights raises some very interesting questions about American constitutional scholarship of the last seventy-five years. Black-letter law since 1938 has unequivocally separated economic from personal rights, leaving the former largely to the mercy of the legislature while simultaneously zealously protecting the latter. Surprisingly, however, as I discuss in Part III, there has been almost no sustained academic defense of that post-New Deal status quo. The little that exists is no match for the comprehensive arguments of the conservative foundationalists. Epstein and his fellow-travelers are attempting to revolutionize constitutional law, with little or no serious scholarly opposition in the legal academy. That missing opposition, and not the book itself, is the real story.

Too much of a good thing can be bad, and democracy is no exception. In the United States, the antidote to what the drafters of the Constitution called "the excess of democracy†is judicial review. Lately, however, judicial review has come under fire. Many on both sides of the political aisle accuse the Supreme Court of being overly activist and insufficiently deferential to the elected representatives of the people. I argue in this essay that criticizing the Court for its activism is exactly backwards: We need more judicial activism, not less. Courts engaging in judicial review are bound to err on one side or the other from time to time. It is much better for the health of our constitutional democracy if they err on the side of activism, striking down too many laws rather than too few. An examination of both constitutional theory and our own judicial history shows that too little activism produces worse consequences than does too much. If we cannot assure that the judges tread the perfect middle ground (and we cannot), it is better to have an overly aggressive judiciary than an overly restrained one.