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Articles 1 - 30 of 106
Full-Text Articles in Law
Pembaruan Pemahaman Bahasa Hukum Indonesia Dalam Penafsiran Konstitusi Untuk Jaminan Kepastian Hukum, Normand Edwin Elnizar
Pembaruan Pemahaman Bahasa Hukum Indonesia Dalam Penafsiran Konstitusi Untuk Jaminan Kepastian Hukum, Normand Edwin Elnizar
Jurnal Hukum & Pembangunan
This article attempts to explain legal language aspects need to be improved in implementing laws that uphold justice while at the same time provide legal certainty. The study is limited to the constitution as the highest law in the national legal system. The explanation of the linguistic aspect including foreign legal terminology in the constitutional interpretation and the constitutional interpretation as a discourse analysis. It was conducted by literature research to compare the paradigm of constitutional interpretation theory with linguistic aspects in linguistic theory. Decision Number 84/PUU-XVI/2018 used as example for this research. This qualitative research describes some linguistic aspects …
Towards A Dramaturgical Theory Of Constitutional Interpretation, Jessica Rizzo
Towards A Dramaturgical Theory Of Constitutional Interpretation, Jessica Rizzo
Seattle University Law Review
Like legal texts, dramatic texts have a public function and public responsibilities not shared by texts written to be appreciated in solitude. For this reason, the interpretation of dramatic texts offers a variety of useful templates for the interpretation of legal texts. In this Article, I elaborate on Jack Balkin and Sanford Levinson’s neglected account of law as performance. I begin with Balkin and Levinson’s observation that both legal and dramatic interpreters are charged with persuading audiences that their readings of texts are “authoritative,” analyzing the relationship between legal and theatrical authority and tradition. I then offer my own theory …
No Amendment? No Problem: Judges, “Informal Amendment,” And The Evolution Of Constitutional Meaning In The Federal Democracies Of Australia, Canada, India, And The United States, John V. Orth, John Gava, Arvind P. Bhanu, Paul T. Babie
No Amendment? No Problem: Judges, “Informal Amendment,” And The Evolution Of Constitutional Meaning In The Federal Democracies Of Australia, Canada, India, And The United States, John V. Orth, John Gava, Arvind P. Bhanu, Paul T. Babie
Pepperdine Law Review
This article considers the way in which judges play a significant role in developing the meaning of a constitution through the exercise of interpretive choices that have the effect of “informally amending” the text. We demonstrate this by examining four written federal democratic constitutions: those of the United States, the first written federal democratic constitution; India, the federal constitution of the largest democracy on earth; and the constitutions of Canada and Australia, both federal and democratic, but emerging from the English unwritten tradition. We divide our consideration of these constitutions into two ideal types, identified by Bruce Ackerman: the “revolutionary” …
Protections Against Tyranny: How Article V Should Guide Constitutional Interpretation, Mary Strong
Protections Against Tyranny: How Article V Should Guide Constitutional Interpretation, Mary Strong
Indiana Law Journal
This Note seeks to explain what Article V means for the methods of constitutional change outside of the traditional Article V amendment process. Specifically, I argue that Article V was meant to limit the federal government from usurping power without first attaining the consent of the people. Because the Supreme Court is part of the federal government and is often considered a counter-majoritarian institution, the Court cannot extend the powers of the federal government through constitutional interpretation beyond the bounds allowed in the Constitution. Therefore, the only means to change the power structure of the federal government (the balance of …
Comparing Literary And Biblical Hermeneutics To Constitutional And Statutory Interpretation, Robert J. Pushaw Jr.
Comparing Literary And Biblical Hermeneutics To Constitutional And Statutory Interpretation, Robert J. Pushaw Jr.
Pepperdine Law Review
Interpreters determine the meaning of language. To interpret literary and biblical texts, scholars have developed detailed rules, methods, and theories of human understanding. This branch of knowledge, “hermeneutics,” features three basic approaches. First, “textualists” treat words as directly conveying their ordinary meaning to a competent reader today. Second, “contextualists” maintain that verbal meaning depends on generally shared linguistic conventions in the particular historical and cultural environment of the author—and that therefore translations or commentaries are necessary to make the writing intelligible to a modern reader. Third, “hermeneutic circle” scholars argue that texts have no objective meaning. Rather, a person’s subjective …
The Popular Constitutional Canon, Tom Donnelly
The Popular Constitutional Canon, Tom Donnelly
William & Mary Bill of Rights Journal
Popular constitutionalism scholarship has often left out the American people. Sure, ordinary citizens make cameo appearances—often through the actions of elected officials and elite movement leaders. However, focusing on high politics among elite actors—even if those actors are not judges—simply is not enough. If popular constitutional views do, indeed, matter, then we can expect constitutional partisans to try to manipulate the processes through which these views emerge. Some constitutional scholars have made a start, reflecting on the importance of the constitutional canon. However, these scholars focus mostly on the legal canon and often ignore its popular analog. At the same …
Judicial Review And Constitutional Interpretation In Afghanistan: A Case Of Inconsistency, Shoaib Timory
Judicial Review And Constitutional Interpretation In Afghanistan: A Case Of Inconsistency, Shoaib Timory
Loyola of Los Angeles International and Comparative Law Review
No abstract provided.
The Constitution And The Language Of The Law, John O. Mcginnis, Michael B. Rappaport
The Constitution And The Language Of The Law, John O. Mcginnis, Michael B. Rappaport
William & Mary Law Review
A long-standing debate exists over whether the Constitution is written in ordinary or legal language. Yet no article has offered a framework for determining the nature of the Constitution’s language, let alone systematically canvassed the evidence.
This Article fills the gap. First, it shows that a distinctive legal language exists. This language in the Constitution includes terms, like “Letters of Marque and Reprisal,” that are unambiguously technical, and terms, like “good behavior,” that are ambiguous in that they have both an ordinary and legal meaning but are better interpreted according to the latter. It also includes legal interpretive rules such …
Striding Out Of Babel: Originalism, Its Critics, And The Promise Of Our American Constitution, André Leduc
Striding Out Of Babel: Originalism, Its Critics, And The Promise Of Our American Constitution, André Leduc
William & Mary Bill of Rights Journal
This Article pursues a therapeutic approach to end the debate over constitutional originalism. For almost fifty years that debate has wrestled with the question whether constitutional interpretations and decisions should look to the original intentions, expectations, and understandings with respect to the constitutional text, and if not, what. Building on a series of prior articles exploring the jurisprudential foundations of the debate, this Article characterizes the debate over originalism as pathological. The Article begins by describing what a constitutional therapy is.
The debate about originalism has been and remains sterile and unproductive, and the lack of progress argues powerfully for …
Substitute And Complement Theories Of Judicial Review, David E. Landau
Substitute And Complement Theories Of Judicial Review, David E. Landau
Indiana Law Journal
Constitutional theory has hypothesized two distinct and contradictory ways in which judicial review may interact with external political and social support. One line of scholarship has argued that judicial review and external support are substitutes. Thus, “political safeguard” theorists of American federalism and the separation of powers argue that these constitutional values are enforced through the political branches, making judicial review unnecessary. However, a separate line of work, mostly composed of social scientists examining rights issues, argues that the relationship between courts and outside support is complementary—judges are unlikely to succeed in their projects unless they have sufficient assistance from …
Semantic Vagueness And Extrajudicial Constitutional Decisionmaking, Anthony O'Rourke
Semantic Vagueness And Extrajudicial Constitutional Decisionmaking, Anthony O'Rourke
William & Mary Bill of Rights Journal
This Article integrates two scholarly conversations to shed light on the divergent ways in which courts and legislatures implement constitutional texts. First, there is a vast literature examining the different ways in which courts and extrajudicial institutions, including legislatures, implement the Constitution’s textually vague expressions. Second, in recent years legal philosophers have begun to use philosophy of language to elucidate the relationship between vague legal texts and the content of laws. There is little scholarship, however, that uses philosophy of language to analyze the divergent ways in which legislatures and courts implement vague constitutional provisions. This Article argues that many …
Judicial Departmentalism: An Introduction, Kevin C. Walsh
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
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 …
Soft Supremacy, Corinna Barrett Lain
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: …
Judicial Supremacy And Taking Conflicting Rights Seriously, Rebecca L. Brown
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 …
Why Congress Does Not Challenge Judicial Supremacy, Neal Devins
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 …
The Annoying Constitution: Implications For The Allocation Of Interpretive Authority, Frederick Schauer
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
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 …
Judicial Supremacy Revisited: Independent Constitutional Authority In American Constitutional Law And Practice, Mark A. Graber
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 …
Justice Scalia’S Bottom-Up Approach To Shaping The Law, Meghan J. Ryan
Justice Scalia’S Bottom-Up Approach To Shaping The Law, Meghan J. Ryan
William & Mary Bill of Rights Journal
Justice Antonin Scalia is among the most famous Supreme Court Justices in history. He is known for his originalism and conservative positions, as well as his witty and acerbic legal opinions. One of the reasons Justice Scalia’s opinions are so memorable is his effective use of rhetorical devices, which convey colorful images and understandable ideas. One might expect that such powerful opinions would be effective in shaping the law, but Justice Scalia’s judicial philosophy was often too conservative to persuade a majority of his fellow Justices on the Supreme Court. Further, his regular criticisms of his Supreme Court colleagues were …
What Did They Mean?: How Principles Of Group Communication Can Inform Original Meaning Jurisprudence And Address The Problem Of Collective Intent, W. Matt Morgan
William & Mary Bill of Rights Journal
No abstract provided.
Magic Words, Kiel Brennan-Marquez
Magic Words, Kiel Brennan-Marquez
William & Mary Bill of Rights Journal
Broadly speaking, this Article has two goals. The first is to demonstrate the prominence of functionalism in the interpretive practices of the Supreme Court. Reading a case like NFIB, it would be easy to conclude that the tension between labels and function reflects a deep rift in our legal order. On reflection, though, the rift turns out to be something of a mirage. While judicial opinions do occasionally employ the rhetoric of label-formalism, we are all functionalists at heart.
The Article’s second goal is to explore two exceptions to this norm. One is a faux exception—an exception to functionalism that …
Thick Constitutional Readings: When Classic Distinctions Are Irrelevant, David Robertson
Thick Constitutional Readings: When Classic Distinctions Are Irrelevant, David Robertson
Georgia Journal of International & Comparative Law
No abstract provided.
The Affordable Care Act, The Constitutional Meaning Of Statutes, And The Emerging Doctrine Of Positive Constitutional Rights, Edward Rubin
The Affordable Care Act, The Constitutional Meaning Of Statutes, And The Emerging Doctrine Of Positive Constitutional Rights, Edward Rubin
William & Mary Law Review
No abstract provided.
Interpretive Contestation And Legal Correctness, Matthew D. Adler
Interpretive Contestation And Legal Correctness, Matthew D. Adler
William & Mary Law Review
No abstract provided.
Sacrifice And Sacred Honor: Why The Constitution Is A "Suicide Pact", Peter Brandon Bayer
Sacrifice And Sacred Honor: Why The Constitution Is A "Suicide Pact", Peter Brandon Bayer
William & Mary Bill of Rights Journal
Most legal scholars and elected officials embrace the popular cliché that “the Constitution is not a suicide pact.” Typically, those commentators extol the “Constitution of necessity,” the supposition that Government, essentially the Executive, may take any action—may abridge or deny any fundamental right—to alleviate a sufficiently serious national security threat. The “Constitution of necessity” is wrong. This Article explains that strict devotion to the “fundamental fairness” principles of the Constitution’s Due Process Clauses is America’s utmost legal and moral duty, surpassing all other considerations, even safety, security and survival.
The analysis begins with the most basic premises: the definition of …
Ugly American Hermeneutics, Francis J. Mootz Iii
Ugly American Hermeneutics, Francis J. Mootz Iii
Nevada Law Journal
This article will appear in a Symposium on comparative legal hermeneutics that includes four articles by American scholars and four articles by Brazilian scholars. I argue that the "ugly American" hermeneutics exemplified in Justice Scalia's opinion in District of Columbia v. Heller is unfortunate, even if we supplement Justice Scalia's hermeneutical fantasy with the much more careful and balanced philosophical work by Larry Solum, Keith Whittington and other scholars. Nevertheless, the pragmatic work of interpretation by lawyers and judges in the day-to-day world of legal practice shows a plain-faced integrity of which we Americans can be proud.
Appeal To Heaven: On The Religious Origins Of The Constitutional Right Of Revolution, John M. Kang
Appeal To Heaven: On The Religious Origins Of The Constitutional Right Of Revolution, John M. Kang
William & Mary Bill of Rights Journal
No abstract provided.
Contingent Constitutionalism: State And Local Criminal Laws And The Applicability Of Federal Constitutional Rights, Wayne A. Logan
Contingent Constitutionalism: State And Local Criminal Laws And The Applicability Of Federal Constitutional Rights, Wayne A. Logan
William & Mary Law Review
Americans have long been bound by a shared sense of constitutional commonality, and the Supreme Court has repeatedly condemned the notion that federal constitutional rights should be allowed to depend on distinct state and local legal norms. In reality, however, federal rights do indeed vary, and they do so as a result of their contingent relationship to the diversity of state and local laws on which they rely. Focusing on criminal procedure rights in particular, this Article examines the benefits and detriments of constitutional contingency, and casts in new light many enduring understandings of American constitutionalism, including the effects of …
Citizen As Lawyer, Lawyer As Citizen, Mark Tushnet
Citizen As Lawyer, Lawyer As Citizen, Mark Tushnet
William & Mary Law Review
No abstract provided.