Law Commons^™

What Lies Beneath: Interpretive Methodology, Constitutional Authority, And The Case Of Originalism, Christopher J. Peters

All Faculty Scholarship

It is a remarkable fact of American constitutional practice that we cannot agree on a methodology of constitutional interpretation. What can explain our disagreement? Is it the product of a deeper, principled dispute about the meaning of constitutional law? Or is it just a veneer – a velvet curtain obscuring what is really a back-room brawl over political outcomes?

This Article suggests that these, in essence, are the only viable possibilities. Either we disagree about interpretation because we disagree (or are confused) about constitutional authority – about why the Constitution binds us in the first place; or we disagree because …

The Anti-Leveraging Principle And The Spending Clause After Nfib, Samuel R. Bagenstos

Articles

This Article offers an initial assessment of the Supreme Court’s Spending Clause holding in National Federation of Independent Business v. Sebelius (NFIB), which addressed the constitutional challenge to the Affordable Care Act. As Justice Ginsburg pointed out, NFIB marks “the first time ever” that the Court has held that a spending condition unconstitutionally coerced the states. The implications of that holding are potentially massive, and some of the language in the decision, if read broadly, would seriously threaten the constitutionality of a broad swath of federal spending legislation. Notwithstanding some of the Court’s language, this Article contends that the case …