Law Commons^™

Inseparable: Perspective Of Senator Daniel Webster, Ernest M. Oleksy

The Downtown Review

Considering the hypersensitivity that their nation has towards race relations, it is often ineffable to contemporary Americans as to how anyone could have argued against abolition in the 19th century. However, by taking the perspective of Senator Daniel Webster speaking to an audience of disunionist-abolitionists, proslaveryites, and various shades of moderates, numerous points of contention will be brought to light as to why chattel slavery persisted so long in the U.S. Focal points of dialogue will include the Narrative of Frederick Douglass, the "positive good" claims of Senator John C. Calhoun, the disunionism of William Lloyd Garrison, and the defense …

The Highest Court: A Dialogue Between Justice Louis Brandeis And Justice Antonin Scalia On Stare Decisis, P. Thomas Distanislao Iii

University of Richmond Law Review

No abstract provided.

Anchors Aweigh: Analyzing Birthright Citizenship As Declared (Not Established) By The Fourteenth Amendment, Elizabeth Farrington

University of Richmond Law Review

No abstract provided.

Judicial Departmentalism: An Introduction, Kevin C. Walsh

William & Mary Law Review

This Article introduces the idea of judicial departmentalism and argues for its superiority to judicial supremacy. Judicial supremacy is the idea that the Constitution means for everybody what the Supreme Court says it means in deciding a case. Judicial departmentalism, by contrast, is the idea that the Constitution means in the judicial department what the Supreme Court says it means in deciding a case. Within the judicial department, the law of judgments, the law of remedies, and the law of precedent combine to enable resolutions by the judicial department to achieve certain kinds of settlements. Judicial departmentalism holds that these …

In Defense Of Judicial Supremacy, Erwin Chemerinsky

William & Mary Law Review

“Judicial supremacy” is the idea that the Supreme Court should be viewed as the authoritative interpreter of the Constitution and that we should deem its decisions as binding on the other branches and levels of government, until and unless constitutional amendment or subsequent decision overrules them. This is desirable because we want to have an authoritative interpreter of the Constitution and the Court is best suited to play this role. Under this view, doctrines which keep federal courts from enforcing constitutional provisions—such as denying standing for generalized grievances, the political question doctrine, and the state secrets doctrine—are misguided and should …

Judicial Supremacy And Taking Conflicting Rights Seriously, Rebecca L. Brown

William & Mary Law Review

The best arguments in favor of judicial supremacy rely on its essential role of protecting rights in a democracy. The doctrinal technique of strict scrutiny, developed to do the work of judicial supremacy, has been an important tool in our constitutional jurisprudence in the service of rights protection. When the Supreme Court reviews laws that themselves seek to enhance or preserve constitutional rights, however, strict scrutiny does not provide the right approach. Rather, the Court should consider very carefully the rights claims in favor of the statute as well as those launched by a challenger. In such cases of conflicting …

The Annoying Constitution: Implications For The Allocation Of Interpretive Authority, Frederick Schauer

William & Mary Law Review

Constitutional constraints often restrict unwise or immoral official policies and actions, but also often invalidate laws and other official acts that are sound as a matter of both morality and policy. These second-order side constraints—or trumps—on even official acts that are sound as a matter of first-order policy reflect deeper or longerterm values, and they are central to understanding the very idea of constitutionalism. Moreover, once we see the Constitution as restricting not only the unsound and the unwise but also the sound and the wise, we can understand why expecting those whose sound ideas and policies are nevertheless unconstitutional …

Much Ado About Nothing: Signing Statements, Vetoes, And Presidential Constitutional Interpretation, Keith E. Whittington

William & Mary Law Review

During the Bush presidency, presidential signing statements became briefly controversial. The controversy has faded, but the White House continues to issue statements when signing legislation. Those statements frequently point out constitutional difficulties in new statutes and sometimes warn that the executive branch will administer the statutes so as to avoid those constitutional difficulties. This Article argues that the criticisms of signing statements were mostly misguided. Signing statements as such present few problems and offer some benefits to the workings of the American political system. While there might be reason to object to the substantive constitutional positions adopted in any given …

Why Congress Does Not Challenge Judicial Supremacy, Neal Devins

William & Mary Law Review

Members of Congress largely acquiesce to judicial supremacy both on constitutional and statutory interpretation questions. Lawmakers, however, do not formally embrace judicial supremacy; they rarely think about the courts when enacting legislation. This Article explains why this is so, focusing on why lawmakers have both strong incentive to acquiesce to judicial power and little incentive to advance a coherent view of congressional power. In particular, lawmakers are interested in advancing favored policies, winning reelection, and gaining personal power within Congress. Abstract questions of institutional power do not interest lawmakers and judicial defeats are seen as opportunities to find some other …

Judicial Supremacy Revisited: Independent Constitutional Authority In American Constitutional Law And Practice, Mark A. Graber

William & Mary Law Review

The Supreme Court exercises far less constitutional authority in American law and practice than one would gather from reading judicial opinions, presidential speeches, or the standard tomes for and against judicial supremacy. Lower federal court judges, state court justices, federal and state elected officials, persons charged with administering the law, and ordinary citizens often have the final say on particular constitutional controversies or exercise temporary constitutional authority in ways that have more influence on the parties to that controversy than the eventual Supreme Court decision. In many instances, Supreme Court doctrine sanctions or facilitates the exercise of independent constitutional authority …

Soft Supremacy, Corinna Barrett Lain

William & Mary Law Review

The debate over judicial supremacy has raged for more than a decade now, yet the conception of what it is we are arguing about remains grossly oversimplified and formalistic. My aim in this symposium contribution is to push the conversation in a more realistic direction; I want those who claim that judicial supremacy is antidemocratic to take on the concept as it actually exists. The stark truth is that judicial supremacy has remarkably little of the strength and hard edges that dominate the discourse in judicial supremacy debates. It is porous, contingent—soft. And the upshot of soft supremacy is this: …

Preemption As A Consistency Doctrine, Jesse Merriam

William & Mary Bill of Rights Journal

No abstract provided.

Preventing An Air Panopticon: A Proposal For Reasonable Legal Restrictions On Aerial Surveillance, Jake Laperruque

University of Richmond Law Review

No abstract provided.

A Taxonomy Of Independent Electoral Reapportionment Systems, James Ruley

Indiana Journal of Constitutional Design

This paper addresses a means of checking legislative gerrymandering, which I have called the Independent Electoral Reapportionment Commission (IERC). Its purpose is to prevent self-interested politicians from drawing biased constituency lines. While scholars have researched gerrymandering, few scholars have researched commissions designed to limit such gerrymandering, and no comprehensive work details the global means of accomplishing this goal.

Thus, the purpose of this paper is not to normatively prescribe the best practices for composing and empowering an IERC, but rather to descriptively show how different countries conduct this process. While Part II makes some determinations about which commissions may conceptually …