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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 …