Constitutional Law Commons^™

Methodological Challenges In Comparative Constitutional Law, Vicki C. Jackson

Georgetown Law Faculty Publications and Other Works

My talk today, Methodological Challenges in Comparative Constitutional Law, has two parts. The first part focuses on the relationship between the purposes of comparison and the methodological challenges of comparison. The second part asks whether there are particular methodological challenges in comparative constitutional law as compared with other comparative legal studies.

Introduction: The Adequacy Of The Presidential Succession System In The 21st Century: Filling The Gaps And Clarifying The Ambiguities In Constitutional And Extraconstitutional Arrangements, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

Inevitably, the events of the day dominate the political agenda. The issues of presidential succession have been attended to in our national history only sporadically because, at most times, the question of who succeeds the President in cases of death, resignation, or incapacity does not have immediate relevance: the President is in good health, the presumption is he will serve out the term of his office for which he was elected, and political leaders ignore succession issues as if they were of only theoretical interest. And yet, again and again, succession questions have become of the most immediate consequence in …

A Marriage Is A Marriage Is A Marriage: The Limits Of Perry V. Brown, Robin West

Georgetown Law Faculty Publications and Other Works

The Ninth Circuit’s decision in Perry v. Brown, authored by Judge Reinhardt, has been widely lauded by marriage equality proponents for its creative minimalism. In keeping with commentators’ expectations, the court found a way to determine that California’s Proposition 8 violated the U.S. Constitution’s Equal Protection Clause, namely that the provision took away an entitlement that had previously been enjoyed by same-sex couples—the right to the appellation of one’s partnership as a “marriage”—for no rational reason. The people of California’s categorization and differential treatment of same-sex couples as compared with opposite-sex couples, the court held, failed the test of …

Pluralism In Marbury And Van Gend, Daniel Halberstam

Book Chapters

‘Great cases, like hard cases, make bad law’, Oliver Wendell Holmes, Jr, famously remarked in his first Supreme Court dissent. For Holmes, ‘great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment’. On this account neither Marbury v Madison70 nor Van Gend en Loos would qualify. Van Gend was a case of great principle without greatly interesting facts. And Marbury was a great political battle that nevertheless produced a case of great principle.

Of Visible Race-Consciousness And Institutional Role: Equal Protection And Disparate Impact After Ricci And Inclusive Communities, Richard A. Primus

Book Chapters

Six years ago, Ricci v. DeStefano foregrounded the possibility that statutory disparate-impact standards like the one in Title VIl might be on a collision course with the Fourteenth Amendment's Equal Protection Clause. For many observers, it was a radically new possibility. Until that point, disparate-impact doctrine had usually been understood as an ally of equal protection rather than as a potentially conflicting aspect of the law. But between the 1970s and the beginning of the present century, equal protection doctrine became more individualistic and less tolerant of race-conscious actions intended to redress inherited racial hierarchies. Those developments put equal protection …

Is Ashcroft V. Iqbal The Death (Finally) Of The “Historical Test” For Interpreting The Seventh Amendment?, Kenneth S. Klein

Faculty Scholarship

There is the possibility that the recent Supreme Court decision of Ashcroft v. Iqbal finally will be the necessary impetus to revisit one of the more bizarre but enduring canards of American jurisprudence -- the way we interpret the Seventh Amendment's preservation of a right to a jury trial in federal civil litigation. The Seventh Amendment provides that "[i]n suits at common law ... the right of trial by jury shall be preserved." To this day, the way we apply the Seventh Amendment-in other words, what we interpret to be the constitutional intent and mandate of our Founders-is to postulate …

Clashing Visions Of A "Living" Constitution: Of Opportunists And Obligationists, William W. Van Alstyne

Faculty Publications

No abstract provided.

The Supreme Court, Social Psychology, And Group Formation, Neal Devins, William Federspiel

Faculty Publications

No abstract provided.

The Politics Of Nature: Climate Change, Environmental Law, And Democracy, Jedediah S. Purdy

Faculty Scholarship

Legal scholars’ discussions of climate change assume that the issue is one mainly of engineering incentives, and that “environmental values” are too weak, vague, or both to spur political action to address the emerging crisis. This Article gives reason to believe otherwise. The major natural resource and environmental statutes, from the acts creating national forests and parks to the Clean Air and Clean Water Acts, have emerged from precisely the activity that discussions of climate change neglect: democratic argument over the value of the natural world and its role in competing ideas of citizenship, national purpose, and the role and …

A Structural Vision Of Habeas Corpus, Eve Brensike Primus

Articles

As scholars have recognized elsewhere in public law, there is no hermetic separation between individual rights and structural or systemic processes of governance. To be sure, it is often helpful to focus on a question as primarily implicating one or the other of those categories. But a full appreciation of a structural rule includes an understanding of its relationship to individuals, and individual rights can both derive from and help shape larger systemic practices. The separation of powers principle, for example, is clearly a matter of structure, but much of its virtue rests on its promise to help protect the …

Article I, Article Iii, And The Limits Of Enumeration, Gil Seinfeld

Articles

Article I, Section 8 and Article Ill, Section 2 of the U.S. Constitution deploy parallel strategies for constraining the power of the federal government. They enumerate powers that the national legislature and judiciary, respectively, are permitted to exercise and thereby implicitly prohibit these two branches of government from exercising powers not enumerated. According to conventional thinking, this strategy has failed in connection with Article I and succeeded in connection with Article III. That is, it is widely acknowledged that Congress routinely exercises powers that are difficult to square with the Article I enumeration; but it is commonly thought that the …

Skelos V. Paterson: The Surprisingly Strong Case For The Governor's Surprising Power To Appoint A Lieutenant Governor, Richard Briffault

Faculty Scholarship

On July 8, 2009, Governor David Paterson surprised New York's legal and political world by announcing his intention to appoint Richard Ravitch to fill the vacancy in the office of lieutenant governor. No New York governor had ever appointed a lieutenant governor before. Paterson's action was widely denounced as unauthorized and unconstitutional. Four months later, observers were even more astonished when the Court of Appeals in Skelos v. Paterson upheld the governor's action. This article explains why the governor and Court of Appeals were right to conclude that the governor had statutory and constitutional authority for his action. Indeed, the …

The Disposing Power Of The Legislature, Thomas W. Merrill

Faculty Scholarship

The Constitution as we understand it includes principles that have emerged over time in a common law fashion. One such principle is the disposing power of the legislature – the understanding that only the legislature has the power to arrange, order, and distribute the power to act with the force of law among the different institutions of society. This Essay illustrates the gradual emergence of the disposing power in criminal, civil, and administrative law, and offers some reasons why it is appropriate that the legislature be given this exclusive authority. One implication of the disposing power is that another type …

Direct Voting By Property Owners, Thomas W. Merrill

Faculty Scholarship

Direct voting by property owners is a widespread but controversial tool for resolving disputes over local collective goods. Direct voting has powerful advantages, in that it can harness the superior knowledge of many local minds, resolve controversies in a way that is perceived to be legitimate, and eliminate corrupt dealmaking. But it also has serious pitfalls, if local voters are poorly informed, or if they ignore external effects on other communities, or if the process is distorted by majoritarian or minoritarian bias. To capitalize on the advantages of local voting, and minimize the risks, this Article proposes that direct voting …

Embedded International Law And The Constitution Abroad, Sarah H. Cleveland

Faculty Scholarship

This Essay explores the role of "embedded" international law in U.S. constitutional interpretation, in the context of extraterritorial application of the Constitution. Traditional U.S. understandings of the Constitution's application abroad were informed by nineteenth-century international law principles of jurisdiction, which largely limited the authority of a sovereign state to its geographic territory. Both international law and constitutional law since have developed significantly away from strictly territorial understandings of governmental authority, however. Modern international law principles of jurisdiction and state responsibility now recognize that states legitimately may exercise power in a number of extraterritorial contexts, and that legal obligations may apply …

Meditaciones Postmodernas Sobre El Castigo: Acerca De Los Límites De La Razón Y De Las Virtudes De La Aleatoriedad (Una Polémica Y Un Manifiesto Para El Siglo Xxi), Bernard E. Harcourt

Faculty Scholarship

Abstract in Spanish
Durante la Modernidad, el discurso sobre la pena ha girado circularmente en torno a tres grupos de interrogantes. El primero, surgido de la propia Ilustración, preguntaba: ¿En qué basa el soberano su derecho de penar? Nietzsche con mayor determinación, pero también otros, argumentaron que la propia pregunta implicaba ya su respuesta. Con el nacimiento de las ciencias sociales, este escepticismo hizo surgir un segundo conjunto de interrogantes: ¿Cuál es, entonces, la verdadera función de la pena? ¿Qué es lo que hacemos cuando penamos? Una serie de críticas ulteriores – de metanarrativas, funcionalistas o de objetividad científica – …

The So-Called Right To Privacy, Jamal Greene

Faculty Scholarship

The constitutional right to privacy has been a conservative bugaboo ever since Justice Douglas introduced it into the United States Reports in Griswold v. Connecticut. Reference to the "so-called" right to privacy has become code for the view that the right is doctrinally recognized but not in fact constitutionally enshrined. This Article argues that the constitutional right to privacy is no more. The two rights most associated historically with the right to privacy are abortion and intimate sexual conduct, yet Gonzales v. Carhart and Lawrence v. Texas made clear that neither of these rights is presently justified by its …

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 …

Supremacy Clause Textualism, Henry Paul Monaghan

Faculty Scholarship

Whatever its status in the statutory interpretation "wars," originalism-driven textualism has assumed an increasingly prominent role in constitutional interpretation, at least within the academy. The focus of this Article is on one such form, namely, "Supremacy Clause textualism", that is, recent textualist claims about the implications of the Supremacy Clause of Article VI. This Article addresses two such claims.

First, in important articles, Professor Bradford Clark argues that the clause is "at the epicenter of [our] constitutional structure" and it "recognizes only the 'Constitution,' 'Laws,' and 'Treaties' of the United States as 'the supreme Law of the Land."' Displacement of …

Judicial Elections As Popular Constitutionalism, David E. Pozen

Faculty Scholarship

One of the most important recent developments in American legal theory is the burgeoning interest in "popular constitutionalism." One of the most important features of the American legal system is the selection of state judges – judges who resolve thousands of state and federal constitutional questions each year – by popular election. Although a large literature addresses each of these subjects, scholarship has rarely bridged the two. Hardly anyone has evaluated judicial elections in light of popular constitutionalism, or vice versa.

This Article undertakes that thought experiment. Conceptualizing judicial elections as instruments of popular constitutionalism, the Article aims to show, …