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Full-Text Articles in Law
Guns, Originalism, And Cultural Cognition, Jamal Greene
Guns, Originalism, And Cultural Cognition, Jamal Greene
Faculty Scholarship
In a legal regime whose canonical text is Marbury v. Madison, it should be unremarkable that the Supreme Court's actions are bounded rather severely by public opinion. What makes the proposition remarkable – enough to be well worth Barry Friedman's time – is also what makes Marbury remarkable: namely, that judges so often go out of their way to deny it. Though not unheard of, it is rare for a judge to advertise that the content of a constitutional rule she is announcing is motivated by public opinion. Such an admission would be self-defeating, since it invites the charge …
Selling Originalism, Jamal Greene
Selling Originalism, Jamal Greene
Faculty Scholarship
Justice Scalia has described an originalist approach to interpretation as a prerequisite to faithful application of a written Constitution. If, says he, constitutional judicial review is implicit in the notion that the Constitution is paramount law, as has been settled in this country at least since Marbury v. Madison, then that review must be guided by the ordinary tools of legislative interpretation. In a democracy, serious legislative interpretation requires that judges keep faith with the meaning of the text as understood at the time of enactment, not as desired by those judges or by anyone else who does not, …
The Court's Role In Congressional Federalism: A Play With (At Least) Three Acts, Philip C. Bobbitt
The Court's Role In Congressional Federalism: A Play With (At Least) Three Acts, Philip C. Bobbitt
Faculty Scholarship
The constitutional drama that climaxed in the Garcia case can be usefully understood, by a theatrical metaphor, as a play in three acts. In the first act, the principal characters are introduced and the problematic nature of their relationship established; the way the characters understand their problems creates their problems. In the second act an attempt made to overcome the conflict of the first act serves only to intensify the struggle and even threatens values widely shared by the players. In the third act, a futile effort is made to resolve the tensions that now appear almost inevitable among such …