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Restoring The Lost Constitution, Not The Constitution In Exile, Randy E. Barnett
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 …
Popular Constitutionalism As Political Law, Mark V. Tushnet
Popular Constitutionalism As Political Law, Mark V. Tushnet
Georgetown Law Faculty Publications and Other Works
This Article addresses some of the critical reviews of ‘The People Themselves’, focusing on how they respond to the proposition, which I believe to be correct and made in ‘The People Themselves’, that constitutional law is a distinctive or special kind of law. I call that kind of law political law. Both parts of the formulation are equally important. Constitutional law is law, what is sometimes described as "hard" law. As law, it sometimes induces decision-makers to make decisions that are inconsistent with their "pure" preferences, that is, those they would hold in the absence of law. My aim is …
Why You Should Read My Book Anyhow: A Reply To Trevor Morrison, Randy E. Barnett
Why You Should Read My Book Anyhow: A Reply To Trevor Morrison, Randy E. Barnett
Georgetown Law Faculty Publications and Other Works
Authors rarely have the opportunity to respond to their reviewers in the same issue in which the review is published, so I am grateful to the Cornell Law Review for inviting me to do so and to Trevor Morrison for graciously agreeing. I am also appreciative of the respectful tone that Professor Morrison employs in his comments on a book with which he so obviously disagrees. Coming from a critic, the positive qualities he attributes to Restoring the Lost Constitution: The Presumption of Liberty are especially significant. Yet he does disagree with me, which means that I disagree with him, …
Constitutional Hardball, Mark V. Tushnet
Constitutional Hardball, Mark V. Tushnet
Georgetown Law Faculty Publications and Other Works
For the past several years I have been noticing a phenomenon that seems to me new in my lifetime as a scholar of constitutional law. I call the phenomenon constitutional hardball. This Essay develops the idea that there is such a practice, that there is a sense in which it is new, and that its emergence (or re-emergence) is interesting because it signals that political actors understand that they are in a position to put in place a new set of deep institutional arrangements of a sort I call a constitutional order. A shorthand sketch of constitutional hardball is this: …
The Original Meaning Of The Necessary And Proper Clause, Randy E. Barnett
The Original Meaning Of The Necessary And Proper Clause, Randy E. Barnett
Georgetown Law Faculty Publications and Other Works
In this Article, I present the evidence of the original public meaning of the Necessary and Proper Clause." These findings will, of course, be of interest to originalists. But, they should also be of interest to the many constitutional scholars who consider original meaning to be one among several legitimate modes of constitutional analysis, or who consider original meaning the starting point of a process by which this meaning is translated into contemporary terms. By either account, it is important to find the correct original meaning, even if it is not dispositive of today's cases and controversies. I will show …
Constitutional Legitimacy, Randy E. Barnett
Constitutional Legitimacy, Randy E. Barnett
Georgetown Law Faculty Publications and Other Works
The problem of constitutional legitimacy is to establish why anyone should obey the command of a constitutionally-valid law. A lawmaking system is legitimate if there is a prima facie duty to obey the laws it makes. Neither "consent of the governed" nor "benefits received" justifies obedience. Rather, a prima facie duty of obedience exists either (a) if there is actual unanimous consent to the jurisdiction of the lawmaker or, in the absence of consent, (b) f laws are made by procedures which assure that they are not unjust. In the absence of unanimous consent, a written constitution should be assessed …
Self-Historicism, Mark V. Tushnet
Self-Historicism, Mark V. Tushnet
Georgetown Law Faculty Publications and Other Works
Among the contributors to this symposium, I may be the person with the longest acquaintance with Sandy Levinson. I want to begin, therefore, with a recollection of the period of my earliest contacts with Sandy - a recollection that, as I hope to show, has some bearing on some of the aspects of Sandy's work that most interest me . . . I use these examples to introduce an argument connected to Sandy's longstanding interest in historical memory. The casebook of which he is a co-author is organized historically-relentlessly so, I would put it, to the point where I personally …
Federalism, Law Enforcement, And The Supremacy Clause: The Strange Case Of Ruby Ridge, Seth P. Waxman
Federalism, Law Enforcement, And The Supremacy Clause: The Strange Case Of Ruby Ridge, Seth P. Waxman
Georgetown Law Faculty Publications and Other Works
There is no "federalism clause" in the Constitution, and the case law ranges over a number of different provisions - the Commerce and General Welfare Clauses, and the Eleventh and Fourteenth Amendments, for example. But the two provisions that most directly implicate the doctrine are the Supremacy Clause and the Tenth Amendment. The former states that "[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the Land ....”, The latter provides that "[t]he powers not delegated to the United States by the Constitution, nor prohibited by …
Legislative Constitutional Interpretation, Neal K. Katyal
Legislative Constitutional Interpretation, Neal K. Katyal
Georgetown Law Faculty Publications and Other Works
This is an Essay about "the how" of constitutional interpretation. Much attention has been devoted to the question of how the Constitution is interpreted in courts. Rather little attention has been devoted to the question of how the Constitution is interpreted elsewhere in the government. The Constitution tells us that Congress, the President, and state legislators and courts must adhere to its terms, but it does not tell us how much interpretive power each actor should have, nor does it prescribe rules for each actor to use when interpreting the text. I argue that constitutional interpretation by Congress is, and …
Thinking About The Constitution At The Cusp, Mark V. Tushnet
Thinking About The Constitution At The Cusp, Mark V. Tushnet
Georgetown Law Faculty Publications and Other Works
What do I mean in saying that we need to think about the Constitution "at the cusp?" I have in mind an image in which we have one way of thinking about the Constitution on one side of a line, and another way of thinking about the Constitution on the other. My sense is that we may have crossed such a line quite recently. I believe that we may be in a new constitutional order, different from the New Deal-Great Society constitutional order that existed from 1937 to sometime in the 1980s. If so, those of us who have been …