Law Commons^™

Macro-Judging And Article Iii Exceptionalism, Merritt E. Mcalister

UF Law Faculty Publications

Over the last half-century, the federal courts have faced down two competing crises: an increase in small, low-value litigation thought unworthy of Article III attention and an increase in the numbers and complexity of “big” cases thought worthy of those resources. The choice was what to prioritize and how, and the answer the courts gave was consistent across all levels of the federal judiciary. Using what this Article calls “macro-judging,” Article III judges entrenched their own power and autonomy to focus on the work they deemed most “worthy” of their attention, while outsourcing less “important” work to an array of …

Taking Care With Text: "The Laws" Of The Take Care Clause Do Not Include The Constitution, And There Is No Autonomous Presidential Power Of Constitutional Interpretation, George Mader

Faculty Scholarship

“Departmentalism” posits that each branch of the federal government has an independent power of constitutional interpretation—all branches share the power and need not defer to one another in the exercise of their interpretive powers. As regards the Executive Branch, the textual basis for this interpretive autonomy is that the Take Care Clause requires the President to “take Care that the Laws be faithfully executed” and the Supremacy Clause includes the Constitution in “the supreme Law of the Land.” Therefore, the President is to execute the Constitution as a law. Or so the common argument goes. The presidential oath to “execute …

Macro-Judging And Article Iii Exceptionalism, Merritt E. Mcalister

UF Law Faculty Publications

Over the last half-century, the federal courts have faced down two competing crises: an increase in small, low-value litigation thought unworthy of Article III attention and an increase in the numbers and complexity of “big” cases thought worthy of those resources. The choice was what to prioritize and how, and the answer the courts gave was consistent across all levels of the federal judiciary. Using what this Article calls “macro-judging,” Article III judges entrenched their own power and autonomy to focus on the work they deemed most “worthy” of their attention, while outsourcing less “important” work to an array of …

The Failure To Grapple With Racial Capitalism In European Constitutionalism, Jeffrey Miller

Articles in Law Reviews & Other Academic Journals

Since the 1980s prominent scholars of European legal integration have used the example of U.S. constitutionalism to promote a federal vision for the European Community. These scholars, drawing lessons from developments across the Atlantic, concluded that the U.S. Supreme Court had played a key role in fostering national integration and market liberalization. They foresaw the possibility for the European Court of Justice (ECJ) to be a catalyst for a similar federal and constitutional outcome in Europe. The present contribution argues that the scholars who constructed today’s dominant European constitutional paradigm underemphasized key aspects of the U.S. constitutional experience, including judgments …

Soft Supremacy, Corinna Barrett Lain

Law Faculty Publications

The debate over judicial supremacy has raged for more than a decade now, yet the conception of what it is we are arguing about remains grossly oversimplified and formalistic. My aim in this symposium contribution is to push the conversation in a more realistic direction; I want those who claim that judicial supremacy is antidemocratic to take on the concept as it actually exists. The stark truth is that judicial supremacy has remarkably little of the strength and hard edges that dominate the discourse in judicial supremacy debates. It is porous, contingent- soft. And the upshot of soft supremacy is …

From Parliamentary To Judicial Supremacy: Reflections In Honour Of The Constitutionalism Of Justice Moseneke, Peter G. Danchin

Faculty Scholarship

No abstract provided.

Germany's German Constitution, Russell A. Miller

Scholarly Articles

Comparative lawyers, working with blunt taxonomies such as “legal families,” have been satisfied with characterizing Germany as representative or a member of the “Germanic-Roman” law tradition. The life of the Federal Republic’s post-war legal culture, however, reveals a richly more complicated story. The civil law tradition, with its emphasis on abstract conceptualism and codification, remains dominant. But it has had to accommodate a new, vigorous constitutionalism that bears many of the traits of the common law tradition, including judicial supremacy and a form of case law. This is the encounter of discrete legal traditions within a particular legal system that …

Judicial Departmentalism: An Introduction, Kevin C. Walsh

Law Faculty Publications

This Article introduces the idea of judicial departmentalism and argues for its superiority to judicial supremacy. Judicial supremacy is the idea that the Constitution means for everybody what the Supreme Court says it means in deciding a case. Judicial departmentalism, by contrast, is the idea that the Constitution means in the judicial department what the Supreme Court says it means in deciding a case. Within the judicial department, the law of judgments, the law of remedies, and the law of precedent combine to enable resolutions by the judicial department to achieve certain kinds of settlements. Judicial departmentalism holds that these …

Maximinimalism, Jamal Greene

Faculty Scholarship

When John Roberts became Chief Justice of the United States more than a decade ago, commenters frequently described him as a minimalist. Although Chief Justice Roberts himself resisted this label, he fairly inspired it by advocating for more consensus among his colleagues and by famously recounting to a Georgetown Law Commencement audience his view that “[i]f it is not necessary to decide more to dispose of a case ... it is necessary not to decide more.” The suggestion that the Court decide significant issues one case at a time recalls the work of Cass Sunstein, the American academy’s most articulate …

Same-Sex Marriage, Federalism, And Judicial Supremacy, Robert F. Nagel

Publications

Justice Kennedy's opinion in United States v. Windsor is characterized by a number of strained and wavering constitutional claims. Prominent among these is the argument that the principle of federalism calls into question the congressional decision to adopt the traditional definition of marriage, which the state of New York rejected. An examination of earlier federalism cases demonstrates that Kennedy's appreciation for federalism is in fact severely limited and suggests and that his lax use of legal authority is directly if perversely related to this limited appreciation.

Federalism cases prior to Windsor show that Justice Kennedy supports state authority only when …

Building A Government Of Laws: Adams And Jefferson 1776–1779, James Maxeiner

All Faculty Scholarship

America’s rule of law is not working well because many American lawyers confound their rule of law with common law and with common law methods. They overlook the contribution of good legislation to good government. They fixate on judges, judge-made law and procedure. America’s founders, in particular, John Adams and Thomas Jefferson, did not. They were not entranced by common law and by common law methods. This chapter shows how in the first few years of American independence, Adams popularized the term “government of laws” and how Jefferson drafted statutes for a government of laws. Neither of them assigned common …

Collaborative Departmentalism, Matthew Steilen

Journal Articles

This article examines the effect of departmentalism on presidential compliance with constitutional law. Most commentators agree that departmentalism weakens the influence of courts in the determination of constitutional meaning and the control of non-judicial actors. The article takes a different view. It defines “moderate departmentalism” as the authority of the President to refuse to adopt a constitutional interpretation announced by the Supreme Court. Drawing on ideas developed in the literature on “new governance” and administrative law, it then argues that moderate departmentalism increases the capacity of the federal courts to control presidential conduct.

Linking The Questions: Judicial Supremacy As A Matter Of Constitutional Interpretation, Tabatha Abu El-Haj

Tabatha Abu El-Haj

This Article explains that what has been missing from the debate between advocates of popular constitutionalism and defenders of judicial supremacy is any account of the practice of constitutional interpretation. Without a clear sense of what constitutional interpretation involves, we cannot assess the prevailing assumption that the Supreme Court is uniquely positioned to interpret the Constitution or explore an expertise-based justification for its claim to finality. The Article, therefore, revisits the debate about judicial supremacy by starting, not with history or politics, but with constitutional interpretation itself.

Having explored the practice of constitutional interpretation, it concludes that the Supreme Court …

Departmentalism, Constitutional Resistance, And The Separation Of Powers, Luis M. Dickson

Luis M. Dickson

This article has two distinct aims. The first is to offer a new and comprehensive analytic account of departmentalism. I suggest that recognizable forms of ‘departmentalism’ can be seen from adopting any of four distinct theses of constitutional practice. These theses are, in increasing order of controversy, internal legal review, coordinate legal review, independent constitutional judgment, and constitutional resistance. I hope to show that these theses are logically independent, and moreover, that three of them – all except constitutional resistance – have significant doctrinal and theoretical support. I conclude by examining the legal-theoretic assumptions of constitutional resistance, and why constitutional …

Cooper's Quiet Demise (A Short Response To Professor Strauss), Frederic M. Bloom

Publications

No abstract provided.

Giving The Constitution To The Courts, Jamal Greene

Faculty Scholarship

Judicial supremacy is the new judicial review. From the time Alexander Bickel introduced the term "countermajoritarian difficulty" in 1962 until very recently, justifying judicial authority to strike down legislation in a nation committed to democratic self-government was the central problem of constitutional theory. But many who had satisfied themselves as to the legitimacy of judicial review have since taken up the related but distinct question of whether, though legitimate, constitutional interpretation should be the exclusive province of the judiciary. That is, is it ever appropriate to locate constitutional interpretive authority outside of constitutional courts, whether within the coordinate branches of …

What's Wrong With Judicial Supremacy? What's Right About Judicial Review?, Robert Lipkin

Robert Justin Lipkin

Skepticism concerning the legitimacy of judicial review typically occurs without distinguishing between judicial review and judicial supremacy. The former gives the Court a say in evaluating the constitutionality of legislation and other government conduct. The latter gives the Court the final say over these matters. This Article defends the Court's role in judicial review but rejects the practice of judicial supremacy. The Article first critically examines some of the more important attempts to justify judicial supremacy and finds them wanting. It then explains why judicial review, as the practice of applying American political philosophical concepts such as federalism, the separation …

Give "The People" What They Want?, Keith E. Whittington

Chicago-Kent Law Review

Larry Kramer's The People Themselves argues that "popular constitutionalism" has been the dominant tradition over the course of American history, being eclipsed by "judicial supremacy" only in the last decades of the twentieth century. He posits that political parties have, since the age of Andrew Jackson, been the vehicle for pushing back the forces of judicial supremacy. This article argues that political parties are instead deeply implicated in the political dynamic that gives rise to judicial supremacy in the United States. The article identifies the features of the early party system that allowed it serve the popular constitutionalist function that …

A Historiography Of The People Themselves And Popular Constitutionalism, Morton J. Horwitz

Chicago-Kent Law Review

The People Themselves intervenes in a growing contemporary debate about the role of the Supreme Court in our constitutional system that began to emerge after the end of the Warren Court and reached a crescendo with Bush v. Gore. For the second time since Lochner v. New York was decided, some liberals have begun once again to switch sides on the virtues of judicial review. Many recent liberal books and articles inevitably bring to mind the flood of Progressive attacks on the democratic legitimacy of judicial review written between 1905 and 1937. Yet the book can be approached independently …

Popular Constitutionalism, Judicial Supremacy, And The Complete Lincoln-Douglas Debates, Mark A. Graber

Chicago-Kent Law Review

The complete history of the Lincoln-Douglas debates provides additional support for the main thesis of Larry Kramer's The People Themselves: Popular Constitutionalism and Judicial Review, while casting doubt on a subtheme. The Lincoln-Douglas debates of 1840 are yet another instance when judicial power was contested in American history. Professor Kramer, however, treats American constitutional history as an ongoing struggle between aristocrats who support judicial supremacy and "democrats" committed to a more popular constitutionalism. The complete Lincoln-Douglas debates suggest that political struggles to control constitutional meaning have been more protean. Douglas was one of many ambitious politicians who rose to …

Constitutional Education For The People Themselves, Sheldon Nahmod

Chicago-Kent Law Review

Professor Nahmod, like Dean Kramer, remains profoundly disturbed by the Supreme Court's triumphalist decision in Bush v. Gore. However, he does not go so far as Dean Kramer in arguing normatively for a return to "popular constitutionalism." Rather, his more modest position is that the Supreme Court, Congress, and the President, together with the bar and the media, have a normative obligation to educate "the people themselves" in constitutional matters. This often-overlooked and vitally important "constitutional education" of the people is based on the self-government rationale of both our constitutional structure and the First Amendment. Professor Nahmod suggests how …

Response, Larry Kramer

Chicago-Kent Law Review

No abstract provided.

Popular Sovereignty, Judicial Supremacy, And The American Revolution: Why The Judiciary Cannot Be The Final Arbiter Of Constitutions, William J. Watkins

ExpressO

Key to understanding the connection between popular sovereignty and judicial review is the historical development of the theory of sovereignty in England and America. Section One of this article traces the defeat of divine right theory in England and the emergence of parliamentary sovereignty. Section Two considers the American colonists’ rejection of parliamentary sovereignty during the Revolution and their establishment of popular sovereignty as the cardinal principle of American constitutionalism. Section Three studies English precedent often cited as providing the basis for the American doctrine of judicial review and shows that these English cases were simply exercises in statutory construction …

Philosopher King Courts: Is The Exercise Of Higher Law Authority Without A Higher Law Foundation Legitimate?, John C. Eastman

John C. Eastman

When our nation's Founders designed our constitutional system of government as the means to secure the inalienable rights described in the Declaration of Independence, they placed great stock in the structural provisions of the Constitution, even greater than in a judicially-enforceable bill of rights. Although they certainly envisioned judicial review, it is hard to fathom that they would have sanctioned a judiciary that decides every major (and a good number of the minor) political issue of the day. Even less clear is the ground of authority on which the modern-day court rests. This article considers several possible claims of legitimacy …

Against Interpretive Supremacy, Saikrishna Prakash, John Yoo

Michigan Law Review

Many constitutional scholars are obsessed with judicial review and the many questions surrounding it. One perennial favorite is whether the Constitution even authorizes judicial review. Another is whether the other branches of the federal government must obey the Supreme Court's interpretation of the Constitution and what, if anything, the other branches must do to execute the judiciary's judgments. Marbury v. Madison has been a full-employment program for many constitutional law scholars, including ourselves. Larry Kramer, the new Dean of Stanford Law School, shares this passion. He has devoted roughly the last decade of his career, with two lengthy law review …

On Law And Democratic Development: Popular Constitutionalism And Judicial Supremacy, Daan Braveman

Syracuse Journal of International Law and Commerce

I was asked to comment on the topic of the conference as it relates to the United States. It is not simply my law background that persuaded me to focus on the issue of judicial supremacy. Examination of law and democracy in the United States at some point must tum its attention to the role of the courts, particularly the Supreme Court, in furthering democratic principles. A fundamental aspect of our democratic experience has been the institution of judicial review, the proposition that unelected, life-tenured judges have the power to declare that our elected representatives have acted unconstitutionally. This is …

Protecting The Constitution From The People: Juricentric Restrictions On Section Five Power, Robert C. Post, Reva B. Siegel

Indiana Law Journal

Symposium: Congressional Power in the Shadow of the Rehnquist Court: Strategies for the Future held at Indiana University Law School, February 1-2, 2002.

Marbury V. Madison And Modern Judicial Review, Robert F. Nagel

Publications

This Article compares the realist critique of Marbury with several revisionist defenses of that decision. Realists claim to see Marbury as essentially political and thus as the fountainhead of modern judicial review. Revisionists claim to see the decision as legalistically justified and thus inconsistent with current practices. Close examination, however, indicates that, despite sharp rhetorical differences, these two accounts are largely complementary rather than inconsistent. Each envisions Marbury as embodying elements of both political realism and legal formalism. Once the false argument about whether Marbury was either political or legal is put aside, it is possible to trace the influence …

Judicial Supremacy And Its Discontents, Dale Carpenter

Faculty Journal Articles and Book Chapters

This essay examines judicial supremacy and some of its discontents, old and new. Part I surveys the curiously quiet posture of the public and their representatives today on the issue of judicial supremacy. Part II contrasts this quiet with other eras when neither the people nor their representatives willingly accepted judicial supremacy. Part III considers the views of two important contemporary critics of judicial supremacy who write from very different constitutional and political perspectives.

Michael Paulsen argues that the President, as head of the coordinate and equal executive branch of the national government, has the power to interpret the Constitution …

Marbury And Judicial Deference: The Shadow Of Whittington V. Polk And The Maryland Judiciary Battle, Jed Handelsman Shugerman

Faculty Scholarship

On the 200th anniversary of Whittington and approaching the 200th anniversary of Marbury, this article revisits these two decisions and challenges legal scholars' assumptions that they were such strong precedents for judicial review.⁵ When one takes into account the broader contexts, both decisions were in fact judicial capitulations to aggressive legislatures and executives. The Maryland General Court asserted its judicial supremacy only in dicta, and the court failed to enforce judicial supremacy when it was legally justified. This article picks apart the court's reasoning step by step, using Whittington to illuminate Marbury and Marbury to illuminate Whittington. …