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Constitutional Law

Fidelity on the Right

The idea standing behind the structure of this book is that the effort of the Court to preserve a founding value is subject to a constraint. That in many contexts, we can understand the court to be attempting to preserve a foundational value, subject to the constraints of its institutional role. The effort at preservation is part of fidelity to meaning; the constraint is fidelity to role. 

In this section, we review to examples of this dynamic — first, with federalism, and second, with economic due process. In both contexts, we can understand the Court's eventual activism as an effort to translate founding values; in both contexts, the Court finds itself constrained by social and political reality. That constraint forces the Court to "retreat." With the federalism cases, we see the dynamic of charge and retreat repeating itself. -LL