Law Commons^™

If I Implore You And Order You To Set Me Free, Robert Blecker

Articles & Chapters

When Odysseus ordered his men to put wax in their ears, bind him to the mast and keep rowing until they passed the Sirens, no matter what he might later command, and then, in the throes of passion, attempted to countermand his earlier command, there, then, Constitutionalism was born in the West. We are perpetually challenged at rational moments to keep future passions in check, so when the future becomes the present, we can survive it without regret.

This brief essay summarily employs the metaphor to account for constitutional rights, long and fixed senatorial terms, life-time judicial tenure, judicial review, …

The Majoritarian Difficulty: Affirmative Action, Sodomy, And Supreme Court Politics, Darren Lenard Hutchinson

UF Law Faculty Publications

Contemporary debates over recent Court decisions provide a rich context to weigh claims of judicial countermajoritarianism against the work of constitutional theorists, critical legal scholars, and political scientists who view the Court as a majoritarian body. In particular, the Court's decisions in Lawrence v. Texas, Gratz v. Bollinger, and Grutter v. Bollinger have reignited arguments concerning the propriety of judicial review. Prominent judicial commentators have described the decisions as important, and unexpected, civil rights victories from a markedly conservative Court. Liberal and conservative scholars and activists seem to agree with this description: mainline civil rights organizations and liberal scholars view …

The Statutory President, Kevin M. Stack

Vanderbilt Law School Faculty Publications

American public law has no answer to the question of how a court should evaluate the president's assertion of statutory authority. In this Article, I develop an answer by making two arguments. First, the same framework of judicial review should apply to claims of statutory authority made by the president and federal administrative agencies. This argument rejects the position that the president's constitutional powers should shape the question of statutory interpretation presented when the president claims that a statute authorizes his actions. Once statutory review is separated from consideration of the president's constitutional powers, the courts should insist, as they …

"Meet The New Boss": The New Judicial Center, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

A document entitled ‘Guidelines on Constitutional Litigation’ published in 1988 by the Reagan era Department of Justice is the springboard for Professor Tushnet's discussion of the Supreme Court's "new center. " The Guidelines urged Department of Justice litigators to foster a nearly exclusive reliance on original understanding in constitutional interpretation and to resort to legislative history only as a last resort. The Guidelines also advised Department of Justice litigators to seek substantive legal changes including more restrictive standing requirements, an end to the creation of unenumerated individual rights, greater constitutional protection of property rights, and greater limits on congressional power. …

A Constitutionalist Perspective, Elizabeth Dale

UF Law Faculty Publications

Intended as a sustained critique of modern communitarian thought written from a constitutionalist perspective, Beau Breslin'sCommunitarian Constitution is a handy primer on modern communitarian thought and a provoking consideration of the impact of communitarian thinking on contemporary politics.

The foundation for Breslin's fundamental argument--that constitutionalism provides a viable alternative to communitarianism, while liberalism cannot--is not laid as well as one might wish. There are other points where his logic ought to be more rigorously developed, most notably in his assessment of the role and power of the rule of law in a constitutionalist system. He rests his reliance on …

Unconstitutional Courses, Frederic M. Bloom

Publications

By now, we almost expect Congress to fail. Nearly every time the federal courts announce a controversial decision, Congress issues a call to rein in "runaway" federal judges. And nearly every time Congress makes a "jurisdiction-stripping" threat, it comes to nothing.

But if Congress's threats possess little fire, we have still been distracted by their smoke. This Article argues that Congress's noisy calls have obscured another potent threat to the "judicial Power": the Supreme Court itself. On occasion, this Article asserts, the Court reshapes and abuses the "judicial Power"--not through bold pronouncements or obvious doctrinal revisions, but through something more …

Judicial Selection: Ideology Versus Character, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

Part I of Judicial Selection: Ideology versus Character sets the stage for an argument that character and not political ideology should be the primary factor in the selection of judges. Political ideology has played an important role in judicial selection, from John Adams's entrenchment of federalists as judges after the election of 1800 to the Roosevelt's selection of progressives, liberals, and New Dealers, the contemporary era, from the failed nominations of Fortas, Haynsworth, Carswell to the defeat of Robert Bork, the narrow confirmation of Clarence Thomas. But until recently, political ideology has played its role behind the scenes--mostly off the …

A Civic-Republican Vision Of "Domestic Dependent Nations" In The Twenty-First Century: Tribal Sovereignty Re-Envisioned, Reinvigorated, And Re-Empowered, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

As a cure for what ails democracy in a pluralistic modem society, such as ours, Michael Sandel recommends "dispersing" sovereignty to a "multiplicity of [civic republican] communities--some more, some less extensive than nations." He intimates that doing this "may entail according greater cultural and political autonomy to subnational communities," which, in turn might "ease the strife that arises when state sovereignty is an all-or-nothing affair, absolute and indivisible, the only meaningful form of self-determination." He sees in federalism not just a "theory of intergovernmental relations," but a "political vision" that "self-government works best when sovereignty is dispersed and citizenship formed …

Trumping Precedent With Original Meaning: Not As Radical As It Sounds, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Originalism was thought to be buried in the 1980s with critiques such as those by Paul Brest and Jeff Powell. Brest charged that originalism was unworkable, while Powell maintained that originalism was inconsistent with the original intentions of the Founders. Others raised the moral challenge of why we should be ruled by the "dead hand" of the past. Yet an originalist approach to interpretation has-like a phoenix from the ashes or Dracula from his grave, depending on your point of view-survived into the Twenty-first Century as an intellectual contender. Indeed, it has thrived like no other approach to interpretation.

Constitutive Commitments And Roosevelt's Second Bill Of Rights: A Dialogue, Randy E. Barnett, Cass R. Sunstein

Georgetown Law Faculty Publications and Other Works

What made the Second Bill of Rights possible? Part of the answer lies in a simple idea, one pervasive in the American legal culture during Roosevelt's time: No one really opposes government intervention. Markets and wealth depend on government. Without government creating and protecting property rights, property itself cannot exist. Even the people who most loudly denounce government interference depend on it every day. Their own rights do not come from minimizing government but are a product of government. Political scientist Lester Ward vividly captured the point: "[T]hose who denounce state intervention are the ones who most frequently and successfully …

Grading Justice Kennedy: A Reply To Professor Carpenter, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

I want to thank the editors of the Minnesota Law Review for soliciting this Reply to Professor Dale Carpenter's provocative analysis of my assessment of Justice Kennedy's opinion in Lawrence v. Texas. As it turns out, though we do disagree about Lawrence, Professor Carpenter and I have fewer disagreements than he thinks. To begin to see why, let us imagine that, like many other professors, he had used the facts and lower opinion in Lawrence as the basis for his final examination in his course on Constitutional Law. On the exam, he asked his students to write an opinion for …

Limiting Raich, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

On Monday, November 29th, 2004, at 10:30 a.m., I rose to argue the case of Gonzales v. Raich in the Supreme Court on behalf of Angel Raich and Diane Monson. On Monday, June 6th, 2005, at 10:00 a.m., the Court announced its decision. Even today it is painful to read the opinions in the case. I am saddened for my clients, and the thousands like them, whose suffering is alleviated by the use of cannabis for medical purposes, as recommended by their physicians and permitted by the laws of their states, but who are nevertheless considered criminals by the federal …

Foreword: What's So Wicked About Lochner?, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In this brief Foreword to a forthcoming symposium on Lochner v. New York, Professor Randy Barnett asks the question, What's So Wicked About Lochner? Modern Progressives cannot complain about its protection of so-called substantive due process, since they favor just that. Nor can they claim that Lochner violates the original meaning of the Fourteenth Amendment, since these legal analysts by and large reject originalism altogether. This leaves only today's judicial conservatives to adhere to a purified Roosevelt New Deal jurisprudence of disdain for Lochner.

The author answers that Lochner is objectionable precisely because its reliance on the Due …

Terrorist Speech And The Future Of Free Expression, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

The crucial point is this: Both liberal, democratic states, and non-state terrorist organizations need free speech. Prominent scholars have written elegantly and at length on the role of this liberty for the former. While their arguments surface at times in the text, the author does not dwell on them. Instead, she wrestles with the question: Under what circumstances are the interests of the state secured and the opportunism of terrorist organizations avoided? Here, the experiences of the United States and United Kingdom prove instructive. On both sides of the Atlantic, where the state acts as sovereign, efforts to restrict persuasive …

The Very Idea Of A First Amendment Right Against Compelled Subsidization, Gregory Klass

Georgetown Law Faculty Publications and Other Works

At present, it is difficult to discern what rules govern compelled subsidization and where the constitutional limits lie. The root cause of the current confusion is the Supreme Court's failure to provide a coherent account of the First Amendment harm of compelled subsidization. Part I of this Article describes the present state of the doctrine. It identifies a number of practical problems, especially the imprecisions in and conflicts between the Court's holdings that leave it unclear how lower courts should decide novel cases. Part II is a critical discussion of the two most common arguments for a First Amendment right …

Human Nature, The Laws Of Nature, And The Nature Of Environmental Law, Richard J. Lazarus

Georgetown Law Faculty Publications and Other Works

The essay is divided into three parts. Part I considers the ways in which the need for environmental law derives from the tendency of human nature to cause adverse environmental consequences and the ways in which the laws of nature make it more difficult to prevent those consequences absent the imposition of external legal rules. Part II describes how our nation's lawmaking institutions are similarly challenged by the laws of nature. This includes a discussion of how the kinds of laws necessary to bridge the gap between human nature and the laws of nature are systematically difficult for our lawmaking …

The Politics Of The Geneva Conventions: Avoiding Formalist Traps, Rosa Brooks

Georgetown Law Faculty Publications and Other Works

The Geneva Conventions were drafted in 1949, in another world. The world of the Geneva Conventions' "framers" is still familiar to all of us, though increasingly it is familiar from movies and books rather from the evening news or, still less, our own lived experience. The world in which the Conventions were drafted was a world of states: powerful states, weak states, predatory states, law-abiding states, but states all the same. Soldiers wore uniforms designed by their states, carried weapons issued by their states, obeyed orders given by their commanders, and fought against the armies of other states.

Well--most of …

Judicial Review Before Marbury, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

While scholars have long probed the original understanding of judicial review and the early judicial review case law, this article presents a study of the judicial review case law in the United States before Marbury v. Madison that is dramatically more complete than prior work and that challenges previous scholarship on the original understanding of judicial review on the two most critical dimensions: how well judicial review was established at the time of the Founding and when it was exercised. Where prior work argues that judicial review was rarely exercised before Marbury (or that it was created in Marbury), …

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, …

Controlling Executive Power In The War On Terrorism, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

How does - or should - the U.S. Constitution regulate the exercise of power in response to threats to national security, to ensure that power is used wisely? s Broadly speaking, two mechanisms of control are available: a separation-of-powers mechanism and a judicial-review mechanism. Both mechanisms aim to ensure that the national government exercises its power responsibly - with sufficient vigor to meet the nation's challenges, but without intruding on protected liberties. Under the separation-of-powers mechanism, nearly all of the work of regulating power is done by the principle that the President can do only what Congress authorizes. Its primary …

Terror And Race, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

The United States is now engaged in an internationally prominent war on terror. That war, however, is being waged in a way that threatens to cause the same types of harm to the democratic values of the United States that the Nation's terrorist enemies are hoping to inflict. Foreign terrorists are attempting to undermine the fundamental liberties that United States culture claims to hold dear. But those are the same liberties that our own government has asked us to forego in its effort to win the war on terror. The paradoxical irony entailed in the United States government's demand that …

The Unfulfilled Promise Of The Constitution In Executive Hands, Cornelia T. Pillard

Georgetown Law Faculty Publications and Other Works

Many leading constitutional scholars now argue for greater reliance on the political branches to supplement or even supplant judicial enforcement of the Constitution. Responding to our national preoccupation with the judiciary as the mechanism of constitutional enforcement, these scholars stress that the executive and legislature, too, bear responsibility to think about the Constitution for themselves and to take steps to fulfill the Constitution's promise. Joining a debate that goes back at least as far as Marbury v. Madison, current scholars seek to reawaken the political branches to their constitutional potential, and urge the Supreme Court to leave the other branches …

Hamdi Meets Youngstown: Justice Jackson's Wartime Security Jurisprudence And The Detention Of Enemy Combatants, Sarah H. Cleveland

Faculty Scholarship

More than any Justice who has sat on the United States Supreme Court, Associate Justice Robert H. Jackson explained how our Eighteenth Century Constitution – that "Eighteenth-Century sketch of a government hoped for" – struggles both to preserve fundamental liberties and to protect the nation against fundamental threats. Drawing upon his collective experience as a solo practitioner with only one year of formal legal education at Albany Law School; government tax and antitrust lawyer, Solicitor General, and Attorney General in the Roosevelt Administration; Associate Justice to the Supreme Court; and Representative and Chief of Counsel for the United States at …

Rethinking Retroactivity, Robert J. Jackson Jr.

Faculty Scholarship

Under the stringent test set forth in Teague v. Lane,' defendants convicted of criminal offenses are generally unable to collaterally attack their convictions by invoking constitutional rules of criminal procedure announced after their convictions become final.2 The purported exception to this general principle is said to require that a new constitutional rule be "implicit in the concept of ordered liberty'3 for it to be applied to criminal cases decided before its pronouncement. Once a rule of criminal procedure is characterized as "new,"4 Teague prohibits the rule's invocation in habeas proceedings unless the rule both "assure[s] that no man has been …

Originalism, Stare Decisis And The Promotion Of Judicial Restraint, Thomas W. Merrill

Faculty Scholarship

If we consider constitutional law as a practice, it is clear that both originalism and precedent play an important role. Neither one is going to vanquish the other, at least not any time soon. We can engage in academic debate about originalism versus stare decisis, as if they were rival modes of interpretation that could operate to the exclusion of the other. But the question of practical importance is one of degree and emphasis: in cases where these two sources of authority arguably point in different directions, which one should have a greater claim to our allegiance?

Originalism – interpreting …

Interpreting Conflicting Provisions Of The Nevada State Constitution, William D. Popkin

Articles by Maurer Faculty

No abstract provided.

European Governance: Executive And Administrative Powers Under The New Constitutional Settlement, Paul Craig

Articles by Maurer Faculty

No abstract provided.

Retaliation, Deborah Brake

Articles

This Article takes a comprehensive look at retaliation and its place in discrimination law. The Article begins by examining current social science literature to understand how retaliation operates as a social practice to silence challenges to discrimination and preserve inequality. Then, using the recent controversy over whether to imply a private right of action for retaliation from a general ban on discrimination as a launching point, the Article theorizes the connections between retaliation and discrimination as legal constructs, and contends that retaliation should be viewed as a species of intentional discrimination. The Article argues that situating retaliation as a practice …

Dimensions Of Equality In Regulating Assisted Reproductive Technologies, Mary Crossley

Articles

Although concerns about individual liberty and the nature and extent of reproductive freedom have tended to dominate discussions regarding the proliferation of and access to reproductive technologies, questions about the implications of assisted reproductive technologies (ARTs) for equality have also arisen. Despite the high number of invocations of equality in the literature regarding ARTs, to date little effort has been made to comprehensively examine the implications of ARTs for equality. This short Article seeks to highlight the variety of equality issues that ARTs present and to develop a framework for classifying different types of equality issues. Specifically, I suggest that …

Discrimination Against The Unhealthy In Health Insurance, Mary Crossley

Articles

As employers seek to contain their health care costs and politicians create coverage mechanisms to promote individual empowerment, people with health problems increasingly are forced to shoulder the load of their own medical costs. The trend towards consumerism in health coverage shifts not simply costs, but also insurance risk, to individual insureds, and the results may be particularly dire for people in poor health. This Article describes a growing body of research showing that unhealthy people can be expected disproportionately to pay the price for consumerism, not only in dollars, but in preventable disease and disability as well. In short, …