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Articles 61 - 67 of 67
Full-Text Articles in Constitutional Law
The Warren Court, Legalism And Democracy: Sketch For A Critique In A Style Learned From Morton Horwitz, William H. Simon
The Warren Court, Legalism And Democracy: Sketch For A Critique In A Style Learned From Morton Horwitz, William H. Simon
Faculty Scholarship
Morton Horwitz's Transformation books developed a critical approach that elaborates the underlying premises of legal doctrine and compares them to suppressed or ignored alternative perspectives. However, Horwitz's Warren Court book is largely an appreciation of the Court's doctrine that accepts at face value its underlying premises and the judges' claim to vindicate democratic values. In this essay, I speculate on what a Transformation-style critique of the Warren Court might look like and suggest that the Court is vulnerable to criticisms analogous to those the Transformation books make of earlier doctrine. I suggest that book ignores an alternative perspective on social …
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, …
Facial And As-Applied Challenges Under The Roberts Court, Gillian E. Metzger
Facial And As-Applied Challenges Under The Roberts Court, Gillian E. Metzger
Faculty Scholarship
One recurring theme of the Roberts Court's jurisprudence to date is its resistance to facial constitutional challenges and preference for as-applied litigation. On a number of occasions the Court has rejected facial constitutional challenges while reserving the possibility that narrower as-applied claims might succeed. According to the Court, such as-applied claims are "the basic building blocks of constitutional adjudication." This preference for as-applied over facial challenges has surfaced with some frequency, across terms and in contexts involving different constitutional rights, at times garnering support from all the Justices. Moreover, the Roberts Court has advocated the as-applied approach in contexts in …
Davis V. Fec: The Roberts Court's Continuing Attack On Campaign Finance Reform, Richard Briffault
Davis V. Fec: The Roberts Court's Continuing Attack On Campaign Finance Reform, Richard Briffault
Faculty Scholarship
In Davis v. FEC, decided on the last day of the October 2007 Term, a closely divided Supreme Court invalidated the so-called Millionaires' Amendment, which was a provision added to the Federal Election Campaign Act ("FECA") as part of the Bipartisan Campaign Reform Act ("BCRA") of 2002 to make it easier for Senate and House candidates to raise private contributions when they run against an opponent who uses a substantial amount of personal wealth to pay for his or her campaign. From the reform perspective, the loss of the Millionaires' Amendment was not of great moment. The Amendment was …
The Interdependent Relationship Between Internal And External Separation Of Powers, Gillian E. Metzger
The Interdependent Relationship Between Internal And External Separation Of Powers, Gillian E. Metzger
Faculty Scholarship
It has been the best of times and the worst of times for internal separation of powers. Over the past few years, internal checks on executive power have been a central topic of legal academic debate – rarely have details of public administrative structure received so much attention. To some extent, this sudden popularity reflects growing interest in questions of institutional design. Unfortunately, however, another reason for this attention is the prominent erosion and impotence of such internal constraints under the recent administration of President George W. Bush.
Our Twenty-First Century Constitution, Peter L. Strauss
Our Twenty-First Century Constitution, Peter L. Strauss
Faculty Scholarship
Accommodating our Eighteenth Century Constitution to the government that Congress has shaped in the intervening two and a quarter centuries, Professor Strauss argues, requires accepting the difference between the President’s role as “Commander in Chief” of the Nation’s military, and his right to seek written opinions from those Congress has empowered to administer domestic laws under his oversight. Thus, the question for today is not whether the PCAOB offends Eighteenth Century ideas about government structure, but the question asked by Professors Bruff, Lawson, and Pildes – whether the relationships between PCAOB and SEC, SEC and President meet the constitutional necessity …
Administrative Detention Of Terrorists: Why Detain, And Detain Whom?, Matthew C. Waxman
Administrative Detention Of Terrorists: Why Detain, And Detain Whom?, Matthew C. Waxman
Faculty Scholarship
This article aims to reframe the administrative detention debate, not to resolve it. In doing so, however, it aspires to advance the discussion by highlighting the critical substantive choices embedded in calls for legal procedural reform and by pointing the way toward appropriately tailored legislative options. It argues that the current debate’s focus on procedural and institutional questions of how to detain suspected terrorists has been allowed to overshadow the questions of why administratively detain, and whom to detain. Not only are the answers to these questions at least as important as the procedural rules in safeguarding and balancing liberty …