Law Commons^™

The Market Participant Doctrine And The Clear Statement Rule, David S. Bogen

Seattle University Law Review

When the state acts as a market regulator, the dormant Commerce Clause invalidates discriminatory regulation without the need for an order against the state. The courts simply refuse to enforce the state law on the ground that it is unconstitutional. When the state acts as a market participant, however, the court would have to direct its order against the state or its officials to negate the discrimination. This produces a direct confrontation with the state, the same kind of confrontation the clear statement rule was designed to avoid. Part II of this article examines the theory of the dormant Commerce …

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

Journal Articles

Thirty-five years ago, in his landmark Lemon v. Kurtzman opinion, Chief Justice Warren Burger declared that state actions could "excessive[ly]"—and, therefore, unconstitutionally—"entangle" government and religion, not only by requiring or allowing intrusive monitoring by officials of religious institutions and activities, but also through their "divisive political potential." He worried that government actions burdened with this "potential" pose a "threat to the normal political process and "divert attention from the myriad issues and problems that confront every level of government." And, he insisted that "political division along religious lines was one of the principal evils against which the First Amendment was …

Irrational War And Constitutional Design: A Reply To Professors Nzelibe And Yoo, Paul F. Diehl, Tom Ginsburg

Michigan Journal of International Law

This Reply proceeds as follows. Part I outlines the argument of the Nzelibe and Yoo paper. Part II considers their principal-agent analysis in the context of the American political system. Part III elaborates on the "democratic peace" literature, demonstrating that it does not support the conclusions that they draw. Part IV addresses the argument that we are in a new strategic situation, such that old rules ought not apply. Part V concludes.

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 out of pious …

Democracy's Handmaid, Robert L. Tsai

Articles in Law Reviews & Other Academic Journals

Democratic theory presupposes open channels of dialogue, but focuses almost exclusively on matters of institutional design writ large. The philosophy of language explicates linguistic infrastructure, but often avoids exploring the political significance of its findings. In this Article, Tsai draws from the two disciplines to reach new insights about the democracy enhancing qualities of popular constitutional language. Employing examples from the founding era, the struggle for black civil rights, the religious awakening of the last two decades, and the search for gay equality, he presents a model of constitutional dialogue that emphasizes common modalities and mobilized vernacular. According to this …

Popular Constitutionalism In The Civil War: A Trial Run, Daniel W. Hamilton

Scholarly Works

No abstract provided.

A Symposium On The People Themselves: Popular Constitutionalism And Judicial Review; Introduction, Daniel W. Hamilton

Scholarly Works

No abstract provided.

Judicial Power And Mobilizable History, Richard A. Primus

Articles

One contribution that law professors can make to constitutional discourse, I suggest, is the nurturing of new mobilizable histories. A "mobilizable history," as I will use the term, is a narrative, image, or other historical source that is sufficiently well-known to the community of constitutional decisionmakers so as to be able to support a credible argument in the discourse of constitutional law. It draws upon materials that are within the collective memory of constitutional interpreters; indeed, a necessary step in nurturing a new mobilizable history is to introduce new information into that collective memory or to raise the prominence of …

The Equality Paradise: Paradoxes Of The Law's Power To Advance Equality, Marcia L. Mccormick

All Faculty Scholarship

This paper, written for Texas Wesleyan Law School's Gloucester Conference, ¿Too Pure an Air: Law and the Quest for Freedom, Justice, and Equality,¿ is a brief exploration of a broader project. Every civil rights movement must struggle with how to allocate scarce resources to accomplish the broadest change possible. This paper compares the legal and political strategies of the Black rights movement and the women's rights movement in the United States, comparing both the strategy choices and the results. These two movement followed essentially the same strategies. Where they have attained success and where each has failed demonstrates the limits …

Unenumerated Duties, Robin West

Georgetown Law Faculty Publications and Other Works

The article aims to make problematic the relative absence of questions about the affirmative duties of legislators to pass laws to achieve various welfarist ends in liberal constitutional theory. The duty to legislate for the public good is a bedrock of both classical and modern liberal theory, yet there is almost nothing in liberal constitutional theory about the possible constitutional grounding of the moral duties, whether enumerated or unenumerated, of legislators. The full explanation for this absence rests on a set of jurisprudential assumptions that lead moral questions about governance to be understood solely as adjudicative questions of law. Yet …

Critical Constitutionalism Now, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

The starting point for this essay is the claim that if the texts that critical scholars studied are unstable over time, then this must also be true of the studies themselves. There is no reason to suppose that the critical perspective, uniquely among all possible perspectives, reflects timeless and contextless truth. The question I want to ask, then, is what meaning the critical perspective has for us now in our new and dramatically transformed environment. I proceed in four parts. First, I address the meaning that critical scholars attributed to constitutional law in the late twentieth century. Second, I describe …

The Supreme Court In Bondage: Constitutional Stare Decisis, Legal Formalism, And The Future Of Unenumerated Rights, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

This essay advances a formalist conception of constitutional stare decisis. The author argues that instrumentalist accounts of precedent are inherently unsatisfying and that the Supreme Court should abandon adherence to the doctrine that it is free to overrule its own prior decisions. These moves are embedded in a larger theoretical framework--a revival of formalist ideas in legal theory that he calls "neoformalism" to distinguish his view from the so-called "formalism" caricatured by the legal realists (and from some other views that are called "formalist").

In Part II, The Critique of Unenumerated Constitutional Rights, the author sets the stage by …

Grados De Libertad: Democracia Y Antidemocracia En Cuby Y Luisiana, 1898-1900, Rebecca J. Scott

Articles

This comparative study between the quest for political racial inclusivity in 1890s Louisiana and the fight against state-sanctioned racialized violence in Cuba in the early 1900s exposes similarities, tensions, and differences between the two systems. The article traces the evolving contests for citizenship and suffrage in each climate at the end of the 19th century and into the beginning of the twentieth, juxtaposing the expression of race, suffrage, and citizenship in the constitution and political climate of each locale. In 1898, the new Louisiana state constitution disenfranchised African-Americans, while in 1900 Cuba was positioning itself for a grant of universal …

Constitutional Texting, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

"Constitutional Texting" introduces an account of constitutional meaning that draws on Paul Grice's distinction between "speaker's meaning" and "sentence meaning." The constitutional equivalent of speaker's meaning is "framer's meaning," the meaning that the author of the constitutional text intended to convey in light of the author's beliefs about the reader's beliefs about the author's intentions. The constitutional equivalent of sentence meaning is "clause meaning," the meaning that an ordinary reader would attribute to the text at the time of utterance without any beliefs about particular intentions on the part of the author. Clause meaning is possible because the words and …

Women And Law: A Comparative Analysis Of The United States And Indian Supreme Courts’ Equality Jurisprudence, Eileen Kaufman

Scholarly Works

No abstract provided.