Marci Hamilton Hamilton02 at AOL.COM
Thu Feb 22 17:55:39 PST 2001

I couldn't agree more with Lynn Baker that unfunded mandates are
unconstitutional and that Dole should be overruled (very likely in the RLUIPA
litigation to come).
It is the unfunded mandate aspect of the ADA that I find most troubling as a
matter of challenging dual sovereignty; the ADA administrators that must be
employed in each state to oversee the statute (enlarged by the DOJ's
unreasonable regulations) is extremely expensive, with not a dime paid by the
federal government.

Sandy's position (and I'm paraphrasing, so correct me, Sandy, if I'm wrong)
that the conservative Justices' views are nothing more than political and
therefore indefensible as a constitutional matter simply proves my earlier
point about colliding world views.  While it is not the shared history of the
vast majority of law professors who do con law (which is of course no
accident), the Court's views are more than plausibly defensible based on the
Framers' views on power, the history of the 14th Amendment, and the text of
the Constitution. There is no perfect reading of history, or is Sandy arguing
that there is only "one" reading of history.  Labeling a position that is
based on the historical record, the constitutional text, the existing Court,
and, frankly, common sense, as "political" gets us nowhere.

The Court has never explicitly embraced Carolene Products' fn. 4 as its
primary approach, a point John Hart Ely has made in print, so to the extent
that it is now "departing" from it, that is no indication of inconsistency
with earlier precedents.

Marci Hamilton
Visiting Professor of Law
New York University School of Law
-------------- next part --------------
An HTML attachment was scrubbed...

More information about the Conlawprof mailing list