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Four Mistakes On The Debate On "Outsourcing Authority", Roger P. Alford Jan 2006

Four Mistakes On The Debate On "Outsourcing Authority", Roger P. Alford

Journal Articles

The purpose of this Article is to discuss common mistakes in the current debate on outsourcing authority. The first mistake in the debate on outsourcing authority is about the protagonists. To focus solely on the fact that some justices espouse this approach, while others do not, distorts the true picture of the rich debate that is ongoing at the bar, the bench, the academy, and beyond. Mistaking the voices in the debate will distort what is at issue in the discussion. The reality is much more complex. There is a groundswell of opposition to this trend from various corners and ...


Religion, Division, And The First Amendment, Richard W. Garnett Jan 2006

Religion, Division, And The First Amendment, Richard W. Garnett

Journal Articles

Nearly thirty-five years ago, in Lemon v. Kurtzman, Chief Justice Warren Burger declared that state programs or policies could excessive(ly) - and, therefore, unconstitutionally - entangle government and religion, not only by requiring or allowing intrusive public monitoring of religious institutions and activities, but also through what he called their divisive political potential. Chief Justice Burger asserted also, and more fundamentally, that political division along religious lines was one of the principal evils against which the First Amendment was intended to protect. And from this Hobbesian premise about the inten(t) animating the First Amendment, he proceeded on the assumption that ...


Chief Justice Rehnquist's Enduring Democratic Constitution, Richard W. Garnett Jan 2006

Chief Justice Rehnquist's Enduring Democratic Constitution, Richard W. Garnett

Journal Articles

William H. Rehnquist's essay, The Notion of a Living Constitution, was delivered as the Will E. Orgain Lecture and then published thirty years ago, back when Rehnquist was still a relatively junior Associate Justice. The piece provides a clear and coherent statement of Rehnquist's judicial philosophy, and the Harvard Journal of Law and Public Policy and the Texas Law Review deserve thanks for their initiative and generosity in reproducing it, in memory of his life and work.

This introduction to Rehnquist's essay highlights his view that the Notion of a Living Constitution was to be resisted, not ...


Foreign Relations As A Matter Of Interpretation: The Use And Abuse Of Charming Betsy, Roger P. Alford Jan 2006

Foreign Relations As A Matter Of Interpretation: The Use And Abuse Of Charming Betsy, Roger P. Alford

Journal Articles

Charming Betsy is a canon of construction that construes legislative enactments consistent with the law of nations. This canon promotes the passive virtue of avoiding constitutional problems by eschewing potential international law violations through statutory interpretation, thereby enhancing the United States' performance in foreign affairs. As a rule of separation of powers, Charming Betsy helps explain how foreign relations concerns clarify the scope of legislative, executive, and judicial authority. But when advocates contend that the Constitution likewise should be read through the lens of Charming Betsy, they abuse the doctrine by ignoring its purpose. While structural guarantees that relate to ...


The Federal Constitutional Court: Guardian Of German Democracy, Donald P. Kommers Jan 2006

The Federal Constitutional Court: Guardian Of German Democracy, Donald P. Kommers

Journal Articles

Germany’s Federal Constitutional Court rivals the Supreme Court of the United States in protecting political democracy. Its jurisprudence of democracy has shaped the course and character of German politics while upholding the rule of law and defending the constitutionally prescribed “free democratic basic order.” In furtherance of these objectives, the Constitutional Court has invalidated regulations limiting the rights of minor parties and constitutionalizing measures designed to stabilize Germany’s system of parliamentary government. These purposes have been served by constitutional decisions on voting rights, public funding of election campaigns, dissolution of Parliament, and proportional representation, including the limiting 5 ...


Introduction: Religion, Division, And The Constitution, Richard W. Garnett Jan 2006

Introduction: Religion, Division, And The Constitution, Richard W. Garnett

Journal Articles

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