Understanding Federalism's Text
![handle is hein.journals/gwlr66 and id is 1226 raw text is: Understanding Federalism's Text
Lawrence Lessig*
I am grateful for the careful and serious attention that Professors Clark,
Maggs, and Merritt have given to my article Translating Federalism: United
States v Lopez (Translating Federalism).' There is much in their criticisms
that I agree with and much, in the end, that I will acknowledge. But I want to
begin with a point that they all let pass too quickly-a point that is central to
the argument that I am making, though a point that I obviously have not
made central enough. This is the idea of utterability-of what can be said,
by whom and when. A theory of interpretive fidelity, I argue, must leave
room for utterability; textualism, I claim, does not.
I sketch the idea of utterability in the first part of this short essay; in the
second, I link it to the comments from this Symposium.
I. Utterability
Consider the following text: Governments are instituted among Men,
deriving their just Powers from the Consent of the Governed, that whenever
any Form of Government becomes destructive of these Ends, it is the Right
of the People to alter or to abolish it.''2
Most will recognize these to be the words of Thomas Jefferson. Most
will recognize them from the Declaration of Independence. They are for us
sacred-part of a sacred text, the stuff of the utterly utterable, still uttered
today. They are the foundation of the Yale School of American sovereignty,3
and the ordinary stuff of a constitutional law class anywhere. They are words
that define who we are.
But consider the story of a young graduate of the University of Chicago
Law School, George Anastaplo. In the early 1950s, seeking admission to the
Illinois bar, Anastaplo was interviewed by the Illinois Supreme Court's Com-
mittee on Character and Fitness. He was asked to state the principles under-
lying the Constitution of the United States. Anastaplo listed separation of
powers, and the fundamental principle that government is constituted so as
to secure certain inalienable rights.'4 He was asked to state more, and so he
went on to say, [a]nd, of course, whenever the particular government in
power becomes destructive of these ends, it is the right of the people to alter
or to abolish it and thereupon to establish a new government.''5
* Jack N. and Lillian R. Berkman Professor for Entrepreneurial Legal Studies, Harvard
Law School. Thanks to Nerlyn Gonzales for extraordinary research and editorial assistance
1 Lawrence Lessig, Translating Federalism: United States v Lopez, 1995 Sup. CT. REv.
125.
2 THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776).
3 See, e.g., Akhil Reed Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425 (1987).
4 In re Anastaplo, 366 U.S. 82, 99 (1961) (Black, J., dissenting).
5 Id.
June/August 1998 Vol. 66 No. 5/6
1218](ViewImageLocal?handle=hein.journals/gwlr66&div=61&collection=&method=preview&ext=.png&size=3)
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Understanding Federalism's Text
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