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Full-Text Articles in Law
Defending Congress, Seth P. Waxman
Defending Congress, Seth P. Waxman
Georgetown Law Faculty Publications and Other Works
Every year the Solicitor General must decide, one case at a time, what the interests of the United States are with respect to several thousand different cases in the federal and state courts. Should the United States appeal, or seek rehearing, or petition for certiorari, or file a brief amicus curiae, or intervene? What issues should the United States raise, and what arguments should it make? How should the law be interpreted or the doctrine applied? The goal is for the United States to speak with one voice - a voice that reflects the interests of all three branches of …
The Original Meaning Of The Commerce Clause, Randy E. Barnett
The Original Meaning Of The Commerce Clause, Randy E. Barnett
Georgetown Law Faculty Publications and Other Works
The U& Supreme Court, in recent cases; has attempted to define limits on the Congress's power to regulate commerce among the several states. While Justice Thomas has maintained that the original meaning of "commerce" was limited to the "trade and exchange" of goods and transportation for this purpose, some have argued that he is mistaken and that "commerce" originally included any "gainful activity." Having examined every appearance of the word "commerce"in the records of the Constitutional Convention, the ratification debates and the Federalist Papers, Professor Barnett finds no surviving example of this term being used in this broader sense. In …
Constitution-Talk And Justice-Talk, Mark V. Tushnet
Constitution-Talk And Justice-Talk, Mark V. Tushnet
Georgetown Law Faculty Publications and Other Works
Inside the courts, one might distinguish between constitution-talk and justice-talk on the ground that the former, but not the latter, results in enforceable legal judgments. So, inside the courts, we might interpret the Constitution with justice in mind, but what we do is produce legally enforceable judgments. Outside the courts, however, it might seem that all we do is interpret and talk. It is not immediately obvious that cloaking justice-talk as constitution-talk outside the courts has much rhetorical force. As I will argue, the fact that invoking the Constitution outside the courts, in the course of discussing justice, does have …
Subconstitutional Constitutional Law: Supplement, Sham, Or Substitute?, Mark V. Tushnet
Subconstitutional Constitutional Law: Supplement, Sham, Or Substitute?, Mark V. Tushnet
Georgetown Law Faculty Publications and Other Works
In this brief Comment I make two points. First, the subconstitutional doctrines appear to have the advantage of allowing elected lawmakers to pursue whatever course they wish, as long as they satisfy the requirements of these subconstitutional doctrines. In practice, however, what appears to be a provisional invalidation based on subconstitutional law turns out to be - and, indeed, might be expected at the moment of decision to be - a final, unrevisable decision. Further, courts might strategically deploy these sub constitutional doctrines to avoid the sting of the charge that they are foreclosing legislative choice while effectively doing so. …
"Shut Up He Explained", Mark V. Tushnet
"Shut Up He Explained", Mark V. Tushnet
Georgetown Law Faculty Publications and Other Works
Part I of this Commentary examines the conversational model of politics. I argue that the virtues Bennett finds in the conversational model exist only when, and to the extent that, participants in civil and political society can engage in undominated conversation. The requirement that conversation be undominated generates a substantial set of social prerequisites, mostly dealing with equality. And yet, determining what social arrangements actually satisfy those prerequisites is itself a matter of constitutional controversy. Resolving such controversies through politics is no solution, because the political arena is where we seek to ensure that nondomination prevails in civil society, and, …
The Marbury Mystery: Why Did William Marbury Sue In The Supreme Court?, Susan Low Bloch
The Marbury Mystery: Why Did William Marbury Sue In The Supreme Court?, Susan Low Bloch
Georgetown Law Faculty Publications and Other Works
In 1801, when William Marbury petitioned the Supreme Court to issue a writ of mandamus ordering Secretary of State James Madison to deliver his commission as justice of the peace, he initiated one of the most important cases in the Court's history. But why did Marbury choose the Supreme Court? Was there a lower federal court that could have granted the writ at the time? The short answer is "yes." Rather than making an unsuccessful attempt to invoke the original jurisdiction of the United States Supreme Court, I have learned that he could have brought his suit in the then …