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Constitutionalizing Fetal Rights: A Salutary Tale From Ireland, Fiona De Londras
Constitutionalizing Fetal Rights: A Salutary Tale From Ireland, Fiona De Londras
Michigan Journal of Gender & Law
In 1983, Ireland became the first country in the world to constitutionalize fetal rights. The 8th Amendment to the Constitution, passed by a referendum of the People, resulted in constitutional protection for “the right to life of the unborn,” which was deemed “equal” to the right to life of the “mother.” Since then, enshrining fetal rights in constitutions and in legislation has emerged as a key part of anti-abortion campaigning. This Article traces the constitutionalization of fetal rights in Ireland and its implications for law, politics, and women. In so doing, it provides a salutary tale of such an approach. …
Taking Care Of Federal Law, Leah Litman
Taking Care Of Federal Law, Leah Litman
Articles
Article II of the Constitution vests the “executive power” in the President and directs the President to “take Care that the Laws be faithfully executed.” But do these provisions mean that only the President may execute federal law? Two lines of Supreme Court precedent suggest conflicting answers to that question. In several prominent separation-of-powers cases, the Court has suggested that only the President may execute federal law: “The Constitution requires that a President chosen by the entire Nation oversee the execution of the laws.” Therefore, the Court has reasoned, Congress may not create private rights of action that allow nonexecutive …
The Sweeping Domestic War Powers Of Congress, Saikrishna Bangalore Prakash
The Sweeping Domestic War Powers Of Congress, Saikrishna Bangalore Prakash
Michigan Law Review
With the Habeas Clause standing as a curious exception, the Constitution seems mysteriously mute regarding federal authority during invasions and rebellions. In truth, the Constitution speaks volumes about these domestic wars. The inability to perceive the contours of the domestic wartime Constitution stems, in part, from unfamiliarity with the multifarious emergency legislation enacted during the Revolutionary War. During that war, state and national legislatures authorized the seizure of property, military trial of civilians, and temporary dictatorships. Ratified against the backdrop of these fairly recent wartime measures, the Constitution, via the Necessary and Proper Clause and other provisions, rather clearly augmented …
Reflections On Comity In The Law Of American Federalism, Gil Seinfeld
Reflections On Comity In The Law Of American Federalism, Gil Seinfeld
Articles
Comity is a nebulous concept familiar to us from the law of international relations. Roughly speaking, it describes a set of reciprocal norms among nations that call for one state to recognize, and sometimes defer to, the laws, judgments, or interests of another. Comity also features prominently in the law of American federalism, but in that context, it operates within limits that have received almost no attention from scholarly commentators. Specifically, although courts routinely describe duties that run from one state to another, or from the federal government to the states, as exercises in comity, they almost never rely on …
Countersupermajoritarianism, Frederic Bloom, Nelson Tebbe
Countersupermajoritarianism, Frederic Bloom, Nelson Tebbe
Michigan Law Review
Our Constitution can change. We can amend it, update it, improve it. And so we have—twenty-seven times by one count, many more by another. Everyone recognizes this. But fewer people appreciate that the mechanics of constitutional change can change as well. A method of alteration unaddressed at the founding can grow into established practice. A procedure built into constitutional text can slip into disuse. As much as citizens can change the substance of the Constitution, they can also change the ways they change it. In Originalism and the Good Constitution, John McGinnis and Michael Rappaport make an elegant and provocative …
Six Overrulings, Andrew Koppelman
Six Overrulings, Andrew Koppelman
Michigan Law Review
John Paul Stevens, who retired in 2010 at the age of ninety after more than thirty-four years on the Supreme Court, has capped his astoundingly distinguished career by becoming an important public intellectual. He reviews books, gives high-profile interviews, wrote a memoir of the chief justices he has known, and has now written a second book. Six Amendments revisits half a dozen old, lost battles. Stevens appeals over the heads of his colleagues to a higher authority: the public. Now that he is off the Court, Stevens explains why six decisions in which he dissented should be overruled by constitutional …
Saving Originalism, Robert J. Delahunty, John Yoo
Saving Originalism, Robert J. Delahunty, John Yoo
Michigan Law Review
It is sometimes said that biographers cannot help but come to admire, even love, their subjects. And that adage seems to ring true of Professor Amar, the foremost “biographer” of the Constitution. He loves it not just as a governing structure, or a political system, but as a document. He loves the Constitution in the same way that a fan of English literature might treasure Milton’s Paradise Lost or Shakespeare’s Macbeth. He loves the Constitution not just for the good: the separation of powers, federalism, and the Bill of Rights. He also loves it for its nooks and crannies, idiosyncrasies, …
A Moment For Pragmatism, Jane S. Schacter
A Moment For Pragmatism, Jane S. Schacter
Michigan Law Review
One of the least controversial things to say about the U.S. Constitution is that it has proven very difficult to amend. The numbers are familiar. Only 27 amendments have been made since the Constitution was ratified, and 10 of those were adopted at the same time, only a few years after the original ratification. These numbers are all the more remarkable given that there have been over 11,500 attempts to amend the Constitution since it was first enacted. The paucity of amendments is also striking as a comparative matter. The national constitution that India approved in 1949 has been amended …