Law Commons^™

Translating Federalism: A Textualist Reaction, Gregory E. Maggs

GW Law Faculty Publications & Other Works

In his rich and important article, Translating Federalism: United States v Lopez, Professor Lawrence Lessig advances two ambitious and provocative claims. Lessig first asserts that the Supreme Court has sought to control the expansion of federal power by "translating" the Commerce Clause instead of following the Clause's textual meaning. Second, Lessig proclaims that, as a normative matter, the Supreme Court should engage actively in this type of translation. In his view, the Court shows greater fidelity to the Constitution by reading it in ways that preserve the document's original function than the Court exhibits by strictly following the document's text. …