Jurisprudence Commons^™

Artis V. District Of Columbia—What Did The Court Actually Say?, Doron M. Kalir

Law Faculty Articles and Essays

On January 22, 2018, the Supreme Court issued Artis v. District of Columbia. A true "clash of the titans," this 5-4 decision featured colorful comments on both sides, claims of "absurdities," uncited use of Alice in Wonderland vocabulary ("curiouser," anyone?), and an especially harsh accusation by the dissent that "we’ve wandered so far from the idea of a federal government of limited and enumerated powers that we’ve begun to lose sight of what it looked like in the first place."

One might assume that the issue in question was a complex constitutional provision, or a dense, technical federal code …

Demosprudence In Comparative Perspective, Brian E. Ray

Law Faculty Articles and Essays

This article critically examines the debate over demosprudence. It adopts a comparative - specifically South African - perspective to consider what it means for a court to act demosprudentially and why the practice may have particular value in developing democracies like South Africa. Guinier connects demosprudence to the broader concept of democratic constitutionalism developed by Reva Siegel and Robert Post. Democratic constitutionalism in turn is part of what Jack Balkin describes as "a renaissance of liberal constitutional thought that has emerged in the last five years." This renaissance is characterized by three major themes: constitutional fidelity, democratic constitutionalism, and redemptive …

A Sign Of Contradiction, David F. Forte

Law Faculty Articles and Essays

Hadley Arkes offers a brilliant manifesto for natural law. In it, he suggests that judges do not pay enough attention to reason, that their realm of reason is too circumscribed—and he levels the criticism at both modern liberal and conservative judges. He urges them to reach out specifically to the principles of the natural law. Yet the judges resist the invitation. They seem always to have resisted the invitation. Why is that so? Why are natural law reasons resisted?, Arkes asks. Why do judges not seek a proper grounding of their judgment in natural law?

Lincoln, Marshall And The Judicial Role, David F. Forte

Law Faculty Articles and Essays

Abraham Lincoln understood judicial activism. For Lincoln, the paradigm of the unrestrained Supreme Court was the decision in Dred Scott v. Sandford. Lincoln saw the "illegitimacy" of Dred Scott not in that the Supreme Court had overturned an act of Congress. It was, rather, that the Supreme Court, in the guise of making a legal decision, instead made a political decision. Even worse, it was a political decision that sought to redefine the polity in fundamental, constitutional terms. Lincoln's position echoed the most eloquent articulation of judicial review ever made by the Court: in Marbury vs. Madison, Chief Justice Marshall …

The Illiberal Court, David F. Forte

Law Faculty Articles and Essays

Justice Scalia casts up a dire warning that not only has the Supreme Court in many ways removed the Constitution from the Framers, it is also removing the democratic process from the people and their representatives.

Natural Law And The Limits To Judicial Review, David F. Forte

Law Faculty Articles and Essays

The very premise of judicial review in America is rooted in the structure of natural law. Judges have no authority to make any kind of law. They can only enforce and apply authoritatively passed positive law. But if the positive law has not been enacted, either in form or substance, without proper authority, then if the judge should enforce such a law, he would in fact be making new positive law, and would be acting outside of his authority.

John Marshall And The Moral Basis For Judicial Review, David F. Forte

Law Faculty Articles and Essays

During the last two decades, many observers have been disappointed in some of the appointments to the federal bench and in the judicial philosophies some judges have brought with them. But if we turn to the source of our constitutional order, we would find in the example of John Marshall the moral basis for the judicial craft.

Conservatism And The Rehnquist Court, David F. Forte

Law Faculty Articles and Essays

Now that the Supreme Court has been overwhelmingly staffed by appointees of Republican Presidents, we can ask: To what extent have they been faithful to the original version of the Constitution as articulated during its early years? How have they revivified the structural protections? How have they communicated an ethical sense of their own role in the structure? The answer, unfortunately, is that the record remains disappointing.

"The Right To Bear Arms": Two Views, Lee Fisher, David C. Tryon

Law Faculty Articles and Essays

The authors provide varying opinions on the Second Amendment.

Constraints Of Power: The Constitutional Opinions Of Judges Scalia, Bork, Posner, Easterbrook, And Winter, James G. Wilson

Law Faculty Articles and Essays

This article completes a two-part series studying the constitutional jurisprudence of Judges Antonin Scalia, Richard Posner, Robert Bork, Frank Easterbrook, and Ralph Winter Jr., five conservative academics appointed by President Reagan to the United States Court of Appeals. Judge Scalia has recently been appointed to the Supreme Court of the United States. In a previous article, published in the last issue of the University of Miami Law Review, I evaluated these five jurists' constitutional scholarship by contrasting their views with those of Edmund Burke, the originator of political conservative theory. That article tested Burke's wariness of political abstractions and his …

The Most Sacred Text: The Supreme Court's Use Of The Federalist Papers, James G. Wilson

Law Faculty Articles and Essays

In interpreting the Constitution the Supreme Court has increasingly referred to The Federalist papers, a series of essays written by Alexander Hamilton, James Madison, and John Jay during the struggle to ratify the Constitution. This article describes in narrative form how the Court has incorporated The Federalist into its opinions, and summarizes how constitutional historians and political scientists have evaluated The Federalist and the Constitution. This format highlights the limited nature of the Court's historical inquiry by demonstrating that the Court and constitutional scholars have been traveling in parallel universes. Either the Court has ignored or been unaware of the …

Ideology And History, David F. Forte

Law Faculty Articles and Essays

I do not dispute the philosophical validity of the theory of natural rights. Indeed, I support much, if not most, of the principles embodied in that theory. What I wish to discuss is that to which Dr. Vieira claims to have limited his discussion, viz., the belief that history, specifically American constitutional history, provides a sufficient base to support a natural rights theory. His attempt to find historical support is an instructive example of how ideology can distort the data of history and cause it to be portrayed in a strange and unreal light. Beyond that, Vieira's historical method also …