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53 Willamette L. Rev. 295 (2016-2017)
Our Implied Constitution

handle is hein.journals/willr53 and id is 315 raw text is: OUR IMPLIED CONSTITUTION RICHARD A. EPSTEIN TABLE OF CONTENTS 1. INTRODUCTION ...................................... ...... 295 A. Constitutions, statutes and contracts ..... ......... 295 B. Three Little Words: oiginal public meanig................. 300 II. THE IMPLIED CONSTITUTION ........................ .........307 A. The Police Power: Preventing Harm to Others .............. 310 B. Unconstitutional Conditions: Distribution ofPublic Benefits. The General Approach .................... 319 C Diversity jurisdiction ................... ...... 321 D. Federal Regulation oflnterstate Commerce...................324 E Intergo vernm ental 1mn unities .................. 327 F Other areas for iplication ................ ..... 329 III.CONCLUSION .............................................. 333 I. INTRODUCTION A. Constitutions, statutes and contracts I should first like to thank Ken and Claudia Peterson, who have endowed this lecture, and the faculty of Willamette University College of Law, who over the last two days have proved to be attentive and gracious hosts. The topic tonight is our implied Constitution. To many this title seems to be a nonstarter, for the notion of an implied Constitution appears to be in manifest tension with the common textualist claims advanced by many judges and * Laurence A. Tisch Professor of Law, The New York University School of Law; the Peter and Kirsten Bedford Senior Fellow, The Hoover Institutions; the James Parker Hall Distinguished Service Professor, Emeritus, and Senior Lecturer, The University of Chicago. My thanks to Momo Liu, New York University School of Law, Class of 2017, and Jonathan Povilonis, New York University School of Law, Class of 2018, for their valuable research assistance on an earlier draft of this article, which is a much-expanded version of the Peterson lecture delivered at Willamette University College of Law on January 24, 2017. 295

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