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Constitutional Fidelity And The Commerce Clause: A Reply To Professor Ackerman, Elizabeth Price Foley, Elizabeth C. Price
Constitutional Fidelity And The Commerce Clause: A Reply To Professor Ackerman, Elizabeth Price Foley, Elizabeth C. Price
Faculty Publications
Can the Constitution be legitimately, albeit implicitly, amended by the Supreme Court? The possibility of implicit constitutional amendment - most forcefully advocated by Professor Bruce Ackerman as "transformative" Supreme Court decisions - has been articulated to justify, legitimate, and entrench various radical reinterpretations of the Constitution, most notably the New Deal Court's vast expansion of the power to regulate commerce. The article concludes that such implicit constitutional amendments are theoretically illegitimate and provide strong disincentives for "We the People" to become politically active in order to "correct" flaws in the original Constitution or interpretations thereof that are deemed no longer …
A Matter Of Power: Structural Federalism And Separation Doctrine In The Present, Frances Howell Rudko
A Matter Of Power: Structural Federalism And Separation Doctrine In The Present, Frances Howell Rudko
Faculty Publications
Public reaction to the 1823 Supreme Court decision in Green v. Biddle prompted John Marshall’s letter to Henry Clay, who had argued the case as amicus curiae for the defendant. The letter is significant because Marshall, who had been a legislator himself, candidly expresses not only his personal dissatisfaction with the congressional assault on the 1823 decision but also the constitutional basis for his opinion. The significance of Marshall’s extrajudicial opinion becomes more apparent when it is considered in the aftermath of the recent tug-of-war between Congress and the Court which culminated in the decision in City of Boerne v. …
The Constitutionalization Of Law In The United States, William B. Fisch, Richard S. Kay
The Constitutionalization Of Law In The United States, William B. Fisch, Richard S. Kay
Faculty Publications
The constitution is that the federal courts and a majority of state court systems will only entertain a constitutional claim in the context of a concrete dispute involving adversary parties with a specific stake in the outcome, and abstract review in these systems is unknown.
United States Supreme Court: 1998 Term, Paul C. Giannelli
United States Supreme Court: 1998 Term, Paul C. Giannelli
Faculty Publications
No abstract provided.