Balkinization  

Wednesday, June 26, 2013

Avoiding the Civil War

Stephen Griffin

I will chime in to say that I agree strongly with Mark Graber's post on "The Missing Amendments."  The only point I disagree with is that this is new.  The Civil War and the Reconstruction Amendments are conspicuously absent from almost all of the Rehnquist and Roberts Courts jurisprudence on federalism.  You can read pages of discourse in the US Reports on state sovereignty without ever encountering a discussion of how the amendments made a difference to the federal system.  The only time the Court comes to grips with the Civil War is when it is unavoidable, as in the Court's section 5 jurisprudence.  But you may have noticed that many scholars do not find that doctrine persuasive and one of the background reasons is that the Court has never taken the Civil War seriously.  I hope to write about this in the near future.

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