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83 Notre Dame L. Rev. 1421 (2007-2008)
Constitutional Compromise and the Supremacy Clause

handle is hein.journals/tndl83 and id is 1431 raw text is: CONSTITUTIONAL COMPROMISE AND THE
Bradford R Clark*
All laws are the product of compromise. In some cases, compro-
mise leads to ambiguity and imprecision. On these occasions, courts
may be unable to ascertain and enforce the underlying compromise
with precision.1 In other cases, compromise produces relatively clear
and precise provisions that establish specific powers, procedures, or
restrictions.2 On these occasions, courts pursuing interpretive fidelity
should strive to uphold the specific compromises incorporated into
enacted legal texts, especially the Constitution. By design, the proce-
dures governing the adoption and amendment of the Constitution
give political minorities extraordinary power to block constitutional
change and exact compromise as the price of assent.3 At the Constitu-
tional Convention, the smaller states convinced the larger states to
©   2008 Bradford R. Clark. Individuals and nonprofit institutions may reproduce
and distribute copies of this Article in any format, at or below cost, for educational
purposes, so long as each copy identifies the author, provides a citation to the Notre
Dame Law Review, and includes this provision and copyright notice.
* William Cranch Research Professor of Law, George Washington University
Law School; Visiting Professor of Law, Harvard Law School. I thank A.J. Bellia, Bill
Eskridge, Beth Garrett, John Manning, Justice Antonin Scalia, Peter Strauss, Carlos
Vdzquez, and Ernie Young for their insightful comments and contributions; Jonathan
Bond for excellent research assistance; and Brian Morrissey, David Raimer, and the
members of the Notre Dame Law Review for proposing this Symposium and for their
dedication in preparing it for publication.
1 The open-ended provisions of the Fourteenth Amendment arguably provide
an example. See U.S. CONST. amend. XIV.
2 The detailed provisions of Article I1, Section 1 governing the election of the
President and specifying precise eligibility requirements illustrate the point. See U.S.
CONST. art. II, § 1.
3  SeeJohn F. Manning, The Eleventh Amendment and the Reading of Precise Constitu-
tional Texts, 113 YALE L.J. 1663, 1713-22 (2004) (examining the procedures for adopt-
ing and amending the Constitution and their implications for the interpretation of
precise constitutional texts); Henry Paul Monaghan, We the People[s], Original Under-
standing, and Constitutional Amendment, 96 COLUM. L. REV. 121, 125 (1996) (Article V

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