Law Commons^™

The Constitution Outside The Courts, James E. Fleming

Faculty Scholarship

In this Book Review, Professor Fleming examines Professor Tushnet's arguments against judicial supremacy and in support of making constitutional interpretation less court-centered to pursue a populist constitutional law. The review concedes that Professor Tushnet's arguments that the “thick Constitution”--in particular, its commitments to federalism, states' rights, and separation of powers--is self-enforcing through the political processes are compelling. But it contends that he fails to make the case that the “thin Constitution”--for example, its fundamental guarantees of equality, freedom of expression, and liberty-- should be treated as similarly self-enforcing. Furthermore, Professor Fleming charges that Professor Tushnet does not adequately elaborate how …

The Canon And The Constitution Outside The Courts, Sotirios Barber, James E. Fleming

Faculty Scholarship

What would it mean for "the canon of constitutional law" if we were to take seriously "the Constitution outside the courts"? What would happen to the canon if we were to distinguish (as Cass Sunstein and Larry Sager do) between the partial, judicially enforceable Constitution and the Constitution that imposes higher obligations upon legislatures, executives, and citizens generally to Fursue constitutional ends or to secure constitutional rights? How would the canon be affected by "taking the Constitution away from the courts," as Mark Tushnet proposes,2 or by adopting what Sandy Levinson has called a "Protestant" rather than a court-centered "Catholic" …

Are Mental States Relevant For Statutory And Constitutional Interpretation, Kent Greenawalt

Faculty Scholarship

Judges in the United States must interpret statutes and constitutions. Largely because these texts are framed in the English language, a language shared by legislators, judges, and other citizens, judges employ sufficiently common techniques to sustain a coherent practice. Lawyers can often say with some confidence how judges will construe particular legal provisions, and, when they have serious doubts, they can sketch the likely alternatives. But we are now in an era of sharp theoretical disagreement over what judges do when they interpret authoritative texts.

In difficult cases of statutory interpretation, are judges mainly trying to give language its ordinary …