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The Democracy Principle In State Constitutions, Jessica Bulman-Pozen, Miriam Seifter

Michigan Law Review

In recent years, antidemocratic behavior has rippled across the nation. Lame-duck state legislatures have stripped popularly elected governors of their powers; extreme partisan gerrymanders have warped representative institutions; state officials have nullified popularly adopted initiatives. The federal Constitution offers few resources to address these problems, and ballot-box solutions cannot work when antidemocratic actions undermine elections themselves. Commentators increasingly decry the rule of the many by the few.

This Article argues that a vital response has been neglected. State constitutions embody a deep commitment to democracy. Unlike the federal Constitution, they were drafted—and have been repeatedly rewritten and amended— to empower …

The People Against The Constitution, Aziz Z. Huq

Michigan Law Review

A review of Jan-Werner Müller, What Is Populism?.

Criminal Justice, Local Democracy, And Constitutional Rights, Stephen J. Schulhofer

Michigan Law Review

Universally admired, and viewed with great affection, even love, by all who knew him, Harvard law professor Bill Stuntz died in March 2011 at the age of fifty-two, after a long, courageous battle with debilitating back pain and then insurmountable cancer. In a career that deserved to be much longer, Stuntz produced dozens of major articles on criminal law and procedure. He was a leader in carrying forward the work of scholars who had analyzed criminal justice through the lens of economic analysis, and he added his own distinctive dimension by insisting on the importance of political incentives, with their …

The D'Oh! Of Popular Constitutionalism, Neal Devins

Michigan Law Review

This Review will be divided into three parts. Part I will both summarize The Most Democratic Branch and highlight some of the difficulties that the Supreme Court would face in implementing Rosen's decision-making model. In particular, by allowing the Court to invalidate laws for a host of "antidemocratic" reasons, Rosen's matrix does not constrain the Court in a predictable way. Part II will examine some of the empirical evidence about public attitudes toward the Supreme Court, including public awareness of Supreme Court decisions. I will contend that the Court cannot look to the people to sort out the Constitution's meaning …

Disease And Cure?, L. A. Powe Jr.

Michigan Law Review

Sunstein uses Franklin's remark to make two related points. First, citizens bear the burden of maintaining the American republic as a healthy, vibrant place; being a citizen is decidedly different from being a consumer. The former has duties, the latter wants (pp. 113-23). Second, and this is the gist of the slender book, the republic is jeopardized by the possibilities of the Internet. Sunstein assumes the correctness of MIT technology specialist Nicholas Negroponte's conclusion that in the not-too-distant future we will be able to create a "Daily Me" on the Internet that will provide the personalized information (including news) that …

Policy Distortion And Democratic Debilitation: Comparative Illumination Of The Countermajoritarian Difficulty, Mark Tushnet

Michigan Law Review

James Bradley Thayer set the terms of the past century's discussion of judicial review in The Origin and Scope of the American Doctrine of Constitutional Law. Thayer was concerned with what Alexander Bickel labeled the "countermajoritarian difficulty" with judicial review, that judicial review displaces decisions made by near-contemporaneous political majorities and therefore is open to the charge that it is undemocratic. Thayer attempted to minimize the displacement- of political majorities through his "clear error" rule, according to which courts should not overturn legislation unless "those who have the right to make laws have not merely made a mistake, but have …

Dialogue And Judicial Review, Barry Friedman

Michigan Law Review

This article argues that most normative legal scholarship regarding the role of judicial review rests upon a descriptively inaccurate foundation. The goal of this article is to redescribe the landscape of American constitutionalism in a manner vastly different than most normative scholarship. At times this article slips across the line into prescription, but by and large the task is descriptive. The idea is to clear the way so that later normative work can proceed against the backdrop of a far more accurate understanding of the system of American constitutionalism.

This article proceeds in three separate parts. Parts I and II …

Justifiably Punishing The Justified, Heidi M. Hurd

Michigan Law Review

Contemporary moral philosophy, political theory, and jurisprudence have converged to create a quite baffling dilemma. This dilemma is generated by the apparent incompatibility of three principles, each of which grounds features of our system of law and government, and each of which carries substantial normative weight. The first I shall call the punishment principle - a moral principle, doctrinally entrenched in American criminal and civil law, which holds that individuals who are morally justified in their actions ought not to be blamed or punished for those actions. The second is the principle of the rule of law - a complex …

Foreign Affairs Law And Democracy, Phillip R. Trimble

Michigan Law Review

A Review of Constitutionalism, Democracy, and Foreign Affairs by Louis Henkin

Hyperspace, Girardeau A. Spann

Michigan Law Review

A Review of The Supreme Court and Constitutional Democracy by John Agresto

A Critique Of John Hart Ely's Quest For The Ultimate Constitutional Interpretivism Of Representative Democracy, James E. Fleming

Michigan Law Review

A Review of Democracy and Distrust: A Theory of Judicial Review by John Hart Ely

The Straight And Narrow Path, Gerald T. Dunne

Michigan Law Review

A Review of Democracy and Distrust: A Theory of Judicial Review by John Hart Ely

Dietze: America's Political Dilemma, Paul G. Kauper

Michigan Law Review

A Review of America's Political Dilemma by Gottfried Dietze

Patterson: Presidential Government In The United States. The Unwritten Constitution, Michigan Law Review

Michigan Law Review

A Review of PRESIDENTIAL GOVERNMENT IN THE UNITED STATES. THE UNWRITTEN CONSTITUTION. By C. Perry Patterson

Governmental Powers, State And National, Under Our Constitutional System, Orie Leon Phillips

Michigan Law Review

We are living in a day when democracy is receding and the totalitarian state is advancing on many fronts. Three great nations have accepted as their governmental system authoritarian collectivism. Under the totalitarian systems, the right of the individual to think freely, to engage in free enterprise, to enjoy personal liberty, and to work out his own destiny is taken away. Instead, there is a regimentation of human beings, where everyone's thought, everyone's time, everyone's labor, and at last everyone's life, are at the disposal of a supreme authority. Of course, such a system means the vesting of tremendous powers …