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Full-Text Articles in Law
Popular Constitutionalism And Relaxing The Dead Hand: Can The People Be Trusted?, Todd E. Pettys
Popular Constitutionalism And Relaxing The Dead Hand: Can The People Be Trusted?, Todd E. Pettys
Todd E. Pettys
A growing number of constitutional scholars are urging the nation to rethink its commitment to judicial supremacy. Popular constitutionalists argue that the American people, not the courts, hold the ultimate authority to interpret the Constitution’s many open-ended provisions whose meanings are reasonably contestable. This Article defends popular constitutionalism on two important fronts. First, using originalism as a paradigmatic example of the ways in which courts frequently draw constitutional meaning from sources rooted deep in the past, the Article contends that defenders of judicial supremacy still have not persuasively responded to the familiar dead-hand query: Why should constitutional meanings that prevailed …
Against Interpretive Supremacy, Saikrishna Prakash, John Yoo
Against Interpretive Supremacy, Saikrishna Prakash, John Yoo
Michigan Law Review
Many constitutional scholars are obsessed with judicial review and the many questions surrounding it. One perennial favorite is whether the Constitution even authorizes judicial review. Another is whether the other branches of the federal government must obey the Supreme Court's interpretation of the Constitution and what, if anything, the other branches must do to execute the judiciary's judgments. Marbury v. Madison has been a full-employment program for many constitutional law scholars, including ourselves. Larry Kramer, the new Dean of Stanford Law School, shares this passion. He has devoted roughly the last decade of his career, with two lengthy law review …