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The Constitutional Significance Of Forgotten Presidents , Michael J. Gerhardt

Cleveland State Law Review

My hope is to clarify the forgotten constitutional legacies of a number of American Presidents. This is only a small sliver of constitutional law, but not an insignificant one at that. My aim is to examine how the Presidents we commonly dismiss as constitutionally insignificant actually helped to shape the future of constitutional law. How these Presidents (and their administrations) exercised power, even for as short a time as William Henry Harrison, changed the constitutional landscape. I do not intend to make the case for rating these Presidents higher than historians or others usually do or for overstating what they …

Internal Separation Of Powers: Checking Today's Most Dangerous Branch From Within, Neal K. Katyal

Georgetown Law Faculty Publications and Other Works

The standard conception of separation of powers presumes three branches with equivalent ambitions of maximizing their powers. Today, however, legislative abdication is the reigning modus operandi. Instead of bemoaning this state of affairs, this piece asks how separation of powers can be reflected within the Executive Branch when that branch, not the legislature, is making much law today. The first-best concept of legislature v. executive checks-and-balances has to be updated to contemplate second-best executive v. executive divisions.

A critical mechanism to promote internal separation of powers is bureaucracy. Much maligned by both the political left and right, bureaucracy serves crucial …

Constitutional Academic Freedom After Grutter: Getting Real About The "Four Freedoms" Of A University, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

The Supreme Court's decision in Grutter v. Bollinger represents a high-water mark for the recognition and influence of constitutional academic freedom. The Court there relied, gingerly perhaps, on constitutional academic freedom, understood as some autonomy for university decision making on matters of core academic concern, to provide a compelling interest adequate to uphold flexible racial preferences in university admissions. Now that the dust has settled from direct import of the decision for affirmative action in admissions, it is important to consider what role constitutional academic freedom, as a working constitutional doctrine, should or may play within current disputes about higher …

A Response To Goodwin Liu, Robin West

Georgetown Law Faculty Publications and Other Works

Professor Liu's article convincingly shows that the Fourteenth Amendment can be read, and has been read in the past, to confer a positive right on all citizens to a high-quality public education and to place a correlative duty on the legislative branches of both state and federal government to provide for that education. Specifically, the United States Congress has an obligation under the Fourteenth Amendment's Citizenship Clause, Liu argues, to ensure that the public education provided by states meets minimal standards so that citizens possess the competencies requisite to meaningful participation in civic life. Liu's argument is not simply that …

Are We There Yet?: Measuring Success Of Constitutional Reform, Maria Dakolias

Vanderbilt Journal of Transnational Law

Like many other countries in the world, the United Kingdom has been modernizing its constitutional arrangements. But unlike all other countries, there is no codified, written constitution. Since 1997, that unwritten constitution has undergone a radical overhaul. Taken together, the changes to systems and institutions represent the most sustained program of reform in the United Kingdom for a century. The main question is whether these reforms were successful. What does success mean? As is well known, implementation is the key to success. So evaluating the reforms and discussing successes and challenges are not only important for the U.K. internal dialogue …

State Executive Lawmaking In Crisis, Jim Rossi

Vanderbilt Law School Faculty Publications

Courts and scholars have largely overlooked the constitutional source and scope of a state executive's powers to avert and respond to crises. This Article addresses how actual and perceived legal barriers to executive authority under state constitutions can have major consequences beyond a state's borders during times of crisis. It proposes to empower state executives to address federal and regional goals without any previous authorization from the state legislature-a presumption of state executive lawmaking, subject to state legislative override, which would give a state or local executive expansive lawmaking authority within its system of government to address national and regional …

Parsing The Commander In Chief Power: Three Distinctions, Curtis A. Bradley

Faculty Scholarship

No abstract provided.

Constitution-Making: A Process Filled With Constraint, Donald L. Horowitz

Faculty Scholarship

Constitutions are generally made by people with no previous experience in constitution making. The assistance they receive from outsiders is often less useful than it may appear. The most pertinent foreign experience may reside in distant countries, whose lessons are unknown or inaccessible. Moreover, although constitutions are intended to endure, they are often products of the particular crisis that forced their creation. Drafters are usually heavily affected by a desire to avoid repeating unpleasant historical experiences or to emulate what seem to be successful constitutional models. Theirs is a heavily constrained environment, made even more so by distrust and dissensus …

Popular Constitutionalism And The Rule Of Recognition: Whose Practices Ground U.S. Law?, Matthew D. Adler

Faculty Scholarship

No abstract provided.

William H. Rehnquist: A Life Lived Greatly, And Well, Richard W. Garnett

Journal Articles

Chief Justice Rehnquist leaves behind a formidable and important legacy in constitutional law. His work on the Court was animated and guided by the view that We the People, through our Constitution, have authorized our federal courts, legislators, and administrators to do many things - but not everything. Because the Nation's powers are few and defined, Congress may not pursue every good idea or smart policy, nor should courts invalidate every foolish or immoral one. However, for those of us who knew, worked with, learned from, and cared about William Rehnquist, it is his unassuming manner, the care he took …

Reining In The Supreme Court: Are Term Limits The Answer?, Arthur D. Hellman

Book Chapters

Once again, life tenure for Supreme Court Justices is under attack. The most prominent proposal for reform is to adopt a system of staggered non-renewable terms of 18 years, designed so that each President would have the opportunity to fill two vacancies during a four-year term. This book chapter, based on a presentation at a conference at Duke Law School, addresses the criticisms of life tenure and analyzes the likely consequences of moving to a system of 18-year staggered terms for Supreme Court Justices.

One of the main arguments for term limits is, in essence, that the Supreme Court should …

Religion, Division, And The First Amendment, Richard W. Garnett

Journal Articles

Nearly thirty-five years ago, in Lemon v. Kurtzman, Chief Justice Warren Burger declared that state programs or policies could excessive(ly) - and, therefore, unconstitutionally - entangle government and religion, not only by requiring or allowing intrusive public monitoring of religious institutions and activities, but also through what he called their divisive political potential. Chief Justice Burger asserted also, and more fundamentally, that political division along religious lines was one of the principal evils against which the First Amendment was intended to protect. And from this Hobbesian premise about the inten(t) animating the First Amendment, he proceeded on the assumption that …

The Rise, Development And Future Directions Of Critical Race Theory And Related Scholarship, Athena D. Mutua

Journal Articles

This essay tells the story of the rise, development and future directions of critical race theory and related scholarship. In telling the story, I suggest that critical race theory (CRT) rises, in part, as a challenge to the emergence of colorblind ideology in law, a major theme of the scholarship. I also contend that conflict, as a process of intellectual and institutional growth, marks the development of critical race theory and provides concrete and experiential examples of some of its key insights and themes. These conflicts are waged in various institutional settings over the structural and discursive meanings of race …

Restoring The Lost Constitution, Not The Constitution In Exile, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

The Constitution we have now is redacted. Any practicing lawyer will tell you that you cannot go into court and argue the Ninth Amendment. You cannot go into court and argue the Privileges or Immunities Clause. Until United States v. Lopez you could not argue the Commerce Clause; after Gonzales v. Raich, it is not clear you can argue the Commerce Clause anymore. You cannot argue the Necessary and Proper Clause. You cannot argue the Republican Guarantee Clause. You cannot argue the Second Amendment outside the Fifth Circuit. Whole sections of the Constitution are now gone. This is the …

Disrobed: The Constitution Of Modesty, Anita L. Allen

Villanova Law Review

No abstract provided.

In Search Of A Conservative Vision Of Constitutional Privacy: Two Case Studies From The Rehnquist Court, Mark C. Rahdert

Villanova Law Review

No abstract provided.

Constitutional Tipping Points: Civil Rights, Social Change, And Fact-Based Adjudication, Suzanne B. Goldberg

Faculty Scholarship

This Article offers an account of how courts respond to social change, with a specific focus on the process by which courts "tip" from one understanding of a social group and its constitutional claims to another. Adjudication of equal protection and due process claims, in particular, requires courts to make normative judgments regarding the effect of traits such as race, sex, sexual orientation, or mental retardation on group members' status and capacity. Yet, Professor Goldberg argues, courts commonly approach decisionmaking by focusing only on the 'facts" about a social group, an approach that she terms 'fact-based adjudication." Professor Goldberg critiques …

Sovereignty And The American Courts At The Cocktail Party Of International Law: The Dangers Of Domestic Invocations Of Foreign And International Law, Donald J. Kochan

Donald J. Kochan

With increasing frequency and heightened debate, United States courts have been citing foreign and “international” law as authority for domestic decisions. This trend is inappropriate, undemocratic, and dangerous. The trend touches on fundamental concepts of sovereignty, democracy, the judicial role, and overall issues of effective governance. There are multiple problems with the judiciary’s reliance on extraterritorial and extra-constitutional foreign or international sources to guide their decisions. Perhaps the most fundamental flaw is its interference with rule of law values. To borrow from Judge Harold Levanthal, the use of international sources in judicial decision-making might be described as “the equivalent of …