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. Lessig's article makes a substantial contribution to the ongoing debate about how courts should react to changed circumstances when deciding constitutional cases. Ultimately, however, I disagree with both of Lessig's claims. The Supreme Court, in my view, did not translate the Commerce Clause in Lopez, but instead decided the case in a textualist manner. In addition, for reasons that I will explain, the Court generally should read the Clause according to the text's original meaning and should not attempt to translate it.
GW Paper Series
GWU Law School Public Law Research Paper No. 383; GWU Legal Studies Research Paper No. 383
Gregory E. Maggs, Translating Federalism: A Textualist Reaction, 66 Geo. Wash. L. Rev. 1198 (1998).