McConnell comment on Boerne -Reply

[Hamilton02]

I suppose we will never prove Jack Balkin's claim that the Court is
majoritarian, but I don't buy it.  A majority of the Court  now is not
following public trends but rather has a powerful shared vision of the
structural properties of the Constitution.  They are following through on that
vision in case after case (Lopez,Printz, Coeur d'Alene, Boerne, etc.).
Admittedly, this is not the vision shared by many in the legal academy or by
immediately preceding courts, but I do not think it is far removed from the
Federalist Framers shared vision.  In the midst of all of the Court-bashing, I
probably shouldn't say it, but I think that the Court is on exactly the right
track.  The likelihood that Congress would willingly give power back to the
states without the Court's prodding strikes me as fundamentally wrong.
Congress never gives up power willingly, and in fact labors to increase its
power.   RFRA is the best example of this.  RFRA is a very sly statute that
would have increased Congress's power ten-fold had it been upheld and then
used in other arenas, such as equal protection.

Marci Hamilton
Center of Theological Inquiry
Benjamin N. Cardozo School of Law