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Full-Text Articles in Law
Unitary Judicial Review, Bradford R. Clark
Unitary Judicial Review, Bradford R. Clark
GW Law Faculty Publications & Other Works
Two hundred years have passed since the Supreme Court's decision in Marbury v. Madison, yet debate continues over the origins and legitimacy of judicial review. Although modern commentators generally accept judicial review with little or no reservation, some remain skeptical. One of the strongest and most sustained challenges comes from Larry Kramer, who has recently argued that the Founders did not authorize judicial review of the scope of federal powers under the original Constitution. At the same time, Kramer maintains that the Founders expected judicial review both to prevent states from undermining federal supremacy and to enforce individual rights. Such …
Sources Of Federalism: An Empirical Analysis Of The Court's Quest For Original Meaning, Peter J. Smith
Sources Of Federalism: An Empirical Analysis Of The Court's Quest For Original Meaning, Peter J. Smith
GW Law Faculty Publications & Other Works
Although a debate continues to rage in the academy and on the Court about the propriety of originalism as a methodology of constitutional interpretation, in federalism cases both the majority and the dissent on the current Court appear to have embraced the approach. Yet their agreement ends there; the Court has consistently divided 5-4 in federalism cases. What explains the disagreement among Justices who appear to agree that the original understanding of the Constitution is also its current meaning? This article presents the results of a study of citation patterns in federalism cases since 1970. The study demonstrates that the …