States, Courts, and Founders: Remarks on Killenbeck

Abstract

Among the matters that have occupied scholars of the Constitution of the United States, four related themes have frequently recurred. One concerns the character of the founding. The second concerns the ongoing implications of the founding, both for governing values and for institutional relations, especially relations between the nation and states. The third concerns the proper role of the national judiciary-most visibly, the Supreme Court. Lurking behind all these concerns is a fourth: the location and character of sovereignty. Mark Killenbeck's ambitious and insightful article2 takes on all of these themes... Consistent with my limited charge in this reply, I shall confine myself to two modest purposes. I shall first recapitulate what I take to be Professor Killenbeck's basic claims.3 Then I shall offer some critical observations, a task made more difficult by the fact that there is much in the article with which I fundamentally agree.