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Federalism and Life


Jonathan, I can’t even agree on the propositions you hope will make for common ground between us. Whether a bill’s assertion of federal power is constitutionally justified is a question independent of whether the justification its text attempts to make is sound; so while I would change those parts of the bill, I don’t worry about its constitutionality on that score. Also, as you know, I believe that to regard the congressional role in “enforcing” equal protection as being subordinate to the federal courts–with the courts defining what equal protection entails and the Congress implementing its definition–reflects a judical-supremacist understanding of the Fourteenth Amendment at odds with its original meaning. So there should in principle be no need for Congress to “show” its warrant for action to Justice O’Connor’s satisfaction. . . . Speaking of federalism, I’ll be interested to hear your thoughts on my piece online today on medical-malpractice reform (although I probably won’t be able to get back online until Sunday night).


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