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Limits Of Interpretivism, Richard A. Primus
Limits Of Interpretivism, Richard A. Primus
Articles
Justice Stephen Markman sits on the Supreme Court of my home state of Michigan. In that capacity, he says, he is involved in a struggle between two kinds of judging. On one side are judges like him. They follow the rules. On the other side are unconstrained judges who decide cases on the basis of what they think the law ought to be. This picture is relatively simple, and Justice Markman apparently approves of its simplicity. But matters may in fact be a good deal more complex.
When Should Original Meanings Matter?, Richard A. Primus
When Should Original Meanings Matter?, Richard A. Primus
Articles
Constitutional theory lacks an account of when each of the familiar sources of authority-text, original meaning, precedent, and so on-should be given weight. The dominant tendency is to regard all sources as potentially applicable in every case. In contrast, this Article proposes that each source of authority is pertinent in some categories of cases but not in others, much as a physical tool is appropriate for some but not all kinds of household tasks. The Article then applies this approach to identify the categories of cases in which original meaning is, or is not, a valid factor in constitutional decisionmaking.
Judicial Power And Mobilizable History, Richard A. Primus
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 …
Free-Standing Due Process And Criminal Procedure: The Supreme Court's Search For Interpretive Guidelines, Jerold H. Israel
Free-Standing Due Process And Criminal Procedure: The Supreme Court's Search For Interpretive Guidelines, Jerold H. Israel
Articles
When I was first introduced to the constitutional regulation of criminal procedure in the mid-1950s, a single issue dominated the field: To what extent did the due process clause of the Fourteenth Amendment impose upon states the same constitutional restraints that the Fourth, Fifth, Sixth and Eighth Amendments imposed upon the federal government? While those Bill of Rights provisions, as even then construed, imposed a broad range of constitutional restraints upon the federal criminal justice system, the federal system was (and still is) minuscule as compared to the combined systems of the fifty states. With the Bill of Rights provisions …
Finding The Constitution: An Economic Analysis Of Tradition's Role In Constitutional Interpretation, Adam C. Pritchard, Todd J. Zywicki
Finding The Constitution: An Economic Analysis Of Tradition's Role In Constitutional Interpretation, Adam C. Pritchard, Todd J. Zywicki
Articles
In this Article, Professor Pritchard and Professor Zywicki examine the role of tradition in constitutional interpretation, a topic that has received significant attention in recent years. After outlining the current debate over the use of tradition, the authors discuss the efficiency purposes of constitutionalism--precommitment and the reduction of agency costs--and demonstrate how the use of tradition in constitutional interpretation can serve these purposes. Rejecting both Justice Scalia's majoritarian model, which focuses on legislative sources of tradition, and Justice Souter's common-law model, which focuses on Supreme Court precedent as a source of tradition, the authors propose an alternative model--the "finding model"-- …
The Eighteenth-Century Background Of John Marshall's Constitutional Jurisprudence, William E. Nelson
The Eighteenth-Century Background Of John Marshall's Constitutional Jurisprudence, William E. Nelson
Michigan Law Review
This analysis of Marshall's constitutional jurisprudence avoids the pitfalls of previous theories. It does not see the Federalist political program as the source of Marshall's constitutional doctrines and thus does not need to explain how Marshall qualified his political principles or how he convinced non-Federalist judges to accept them. Instead, this essay argues that legal, not political, principles underlay Marshall's jurisprudence, but it attempts to understand those principles in a manner consistent with the unavoidable twentieth-century assumption that law is a body of flexible rules responsive to social reality rather than a series of immutable, unambiguous doctrines derived from a …
Wasserstrom: The Judicial Decision- Toward A Theory Of Legal Justification, William B. Harvey
Wasserstrom: The Judicial Decision- Toward A Theory Of Legal Justification, William B. Harvey
Michigan Law Review
A Review of The Judicial Decision- Toward A Theory of Legal Justification By Richard A. Wasserstrom.