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| What makes an issue constitutional rather than one merely of policy choice? According to Professor Richard Primus, “its substantively important place in American government.” Even though this definition plays no significant role on the surface of Professor Primus’s analysis of the Senate debate on the constitutionality of seating Senator Hiram Revels, I do not think it is a throwaway line. Beneath the surface, the importance of the definitional issues implicated in the debate plays quite a large role. That can be seen by unpacking the indifference the Senate majority had for what Professor Primus describes as the merely legalistic defenses of seating Senator Revels. As I interpret Professor Primus’s arguments, and the Senate majority’s, the legalistic arguments were fundamentally misplaced because they showed only that the Senate could have seated Senator Revels had it chosen to do so. For the Senate majority, though, seating Senator Revels was not optional at all; it was constitutionally mandatory. And the mandate arose from the constitutional transformation memorialized by, but not fully inscribed in, the Fourteenth Amendment. It was that transformation that defined the substantive importance of the issues raised by the debate, and therefore their constitutional dimension, and therefore the irrelevance of legalistic arguments predicated on the Constitution’s language.
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Suggested citation: Mark Tushnet, Response to The Riddle of Hiram Revels, 120 Harv. L. Rev. F. 36 (2007), http://www.harvardlawreview.org/forum/issues/119/april06/tushnet.pdf
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