Victims of government-sponsored lawlessness have come to dread the word "federalism." Whether emblazoned on the simple banner of "Our Federalism"' or invoked in some grander phrase, 2 the word is now regularly deployed to thwart full remedies for violations of constitutional rights. Consider, for example, the Burger Court. Rallying under flags of federalism, the Justices pushed back remedies for segregation in public schools, 3 denied relief to citizens threatened by racially discriminatory police brutality, 4 cut back federal habeas corpus for state prisoners convicted
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights.... That... Governments... deriv[e] their just powers from the consent of the governed. That whenever any Form of Government becomes destructive of [its] ends, it is the right of the People to alter or abolish it, and to institute new Government, laying its foundations on such principles and organizing its Powers in such form, as to them shall seem most likely to effect their Safety and Happiness. 1 Ringing words-but words that ring hollow today. Mark Twain once defined a literary "classic" as a work "which people praise and don't read." 2 Jefferson's majestic proclamation of self-evident truths has reached an even more exalted status: words which people praise and do read, but don't understand. For if understood, these words, and their evolving meaning between 1776 and 1789, call for a fundamental rethinking of conventional understandings of the U.S. Constitution. Concretely, the U.S. Constitution is a far more majoritarian and populist document than we have generally thought; and We the People of the United States have a legal right to alter our Government-to change our Constitution-via a majoritarian and populist mechanism akin to a national referendum, even though that mechanism is not explicitly specified in Article V. Or so I have argued elsewhere. I first presented my musings on the topic in the shadow ofJefferson's beloved Monticello, at the University of Virginia that he founded. My conclusion troubled me-I suspected my audience might well wonder if someone had been messing with the drinking water in New Haven-so I invited my audience to show me where I had gone wrong. Many posed thoughtful questions, but none that went to the heart of the thing. When I sketched my preliminary
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