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The "Constitution Restoration Act" And Judicial Independence: Some Observations, Mark V. Tushnet
The "Constitution Restoration Act" And Judicial Independence: Some Observations, Mark V. Tushnet
Georgetown Law Faculty Publications and Other Works
This Essay uses the proposed Constitution Restoration Act of 2005 as the vehicle for exploring some aspects of contemporary concerns about judicial independence and the mechanisms available to control what might be perceived as abuses of judicial authority . . . I doubt that the Act has a serious chance of enactment, but its introduction provides an opportunity to examine some difficulties associated with congressional control of judicial decision-making. I begin by treating the Constitution Restoration Act as a real statute, asking what its substantive terms mean. I argue that there is substantial tension between what the Act says and …
Weak-Form Judicial Review And "Core" Civil Liberties, Mark V. Tushnet
Weak-Form Judicial Review And "Core" Civil Liberties, Mark V. Tushnet
Georgetown Law Faculty Publications and Other Works
In this Essay, I want to unearth some subordinated strands in the Rehnquist Court's free speech jurisprudence. For example, the Rehnquist Court allowed Congress to regulate campaign finance in ways subject to credible First Amendment objections, and to impose obligations on cable television systems that would almost certainly be unconstitutional were they imposed on newspapers. These decisions, I suggest, do not rest simply on the kind of deference to legislative judgment that fits comfortably into a system of strong-form review. Rather, they represent what I call a managerial model of the First Amendment, which accords legislatures a large role in …