Constitutional Fidelity & the Commerce Clause: A Reply to Professor Ackerman

88 Pages Posted: 16 Nov 2009 Last revised: 7 Jun 2010

See all articles by Elizabeth Price Foley

Elizabeth Price Foley

Florida International University (FIU) - College of Law

Date Written: November 9, 2009

Abstract

Can the Constitution be legitimately, albeit implicitly, amended by the Supreme Court? The possibility of implicit constitutional amendment - most forcefully advocated by Professor Bruce Ackerman as "transformative" Supreme Court decisions - has been articulated to justify, legitimate, and entrench various radical reinterpretations of the Constitution, most notably the New Deal Court's vast expansion of the power to regulate commerce. The article concludes that such implicit constitutional amendments are theoretically illegitimate and provide strong disincentives for "We the People" to become politically active in order to "correct" flaws in the original Constitution or interpretations thereof that are deemed no longer normatively desirable. They bypass the process of amendment provided for in Article V and encourage popular political lethargy and judicial paternalism.

Keywords: commerce, ackerman, new deal, constitution, constitutional, fidelity, interpretation, amendment, article V, police power

Suggested Citation

Foley, Elizabeth Price, Constitutional Fidelity & the Commerce Clause: A Reply to Professor Ackerman (November 9, 2009). Syracuse Law Review, Vol. 48, pp. 139-226, 1998. Available at SSRN: https://ssrn.com/abstract=1503165 or http://dx.doi.org/10.2139/ssrn.1503165

Elizabeth Price Foley (Contact Author)

Florida International University (FIU) - College of Law ( email )

11200 SW 8th St.
RDB Hall 1097
Miami, FL 33199
United States

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