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No Call To Glory: Thurgood Marshall's Thesis On The Intent Of A Pro-Slavery Constitution, Raymond T. Diamond

Vanderbilt Law Review

Thurgood Marshall sits as an Associate Justice on the United States Supreme Court, the only black person ever to do so. Before taking that office he served as the Solicitor General of the United States and as a judge on the United States Court of Appeals for the Second Circuit. In these offices he has been called upon to bring his powers of judgment to bear on a multitude of matters concerning this Nation's Constitution. His views on the Constitution, therefore, cannot be easily dismissed.

The 200th anniversary of the Constitution was not only a time of celebration, but also …

Is Law Politics?, Philip Chase Bobbitt

Faculty Scholarship

Red, White, and Blue addresses the pervasive presence of five general theories of American constitutional law. These theories reflect particular jurisprudential ideologies governing, among other things, the legitimacy of certain arguments, the appropriateness of certain occasions for judicial intervention and the constitutional basis for judicial review. What makes this book interesting and important is that it provides an unwitting or at least unself-conscious example of the general theorizing it wishes to explain. For this reason, its descriptions of the particular family of theories that characterize American constitutional jurisprudence are distorted, while it disclaims any account of the particular set of …

Does Competency Matter After Charters?, Michael L. Perlin, Michael L. Perlin

Articles & Chapters

No abstract provided.

Section 1983, Martin A. Schwartz, Honorable George C. Pratt, Leon Friedman

Touro Law Review

No abstract provided.

Two Conceptions Of The Ninth Amendment, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

The Ninth Amendment has been largely ignored by the Supreme Court of the United States. Because the Ninth Amendment is unquestionably a part of our written Constitution, ignoring it would not have been possible without some theory that renders it without any function. This paper will first examine this theory, which is based on what I call the "rightspowers conception" of constitutional rights, a conception of constitutional rights that is applied only to the Ninth Amendment. Then I will describe an alternative to this view of the Ninth Amendment, one that is based on what I call the "powerconstraint conception" …

Diagnostic Adjudication In Appellate Courts: The Supreme Court Of Canada And The Charter Of Rights, Carl Baar, Ellen Baar

Osgoode Hall Law Journal

Three distinct adjudicatory processes are found in appellate courts: decisional adjudication (applying principles), procedural adjudication (choosing among principles), and diagnostic adjudication (defining and developing principles). The Supreme Court of Canada has traditionally used procedural adjudication, in which the adversary process frames issues and generates supporting material. However, the Court's decreased caseload, its increased discretion to select cases, and the arrival of a new wave of issues under the Charter of Rights has shifted the Court's work to diagnostic adjudication. As judgment becomes less a choice problem and more a creative exercise, both the degree and kind of judicial involvement changes. …

Constitutional Arguments: Interpretation And Legitimacy In Canadian Constitutional Thought, Joel C. Bakan

Osgoode Hall Law Journal

The author provides an analysis and critique of the various types of arguments advanced by Canadian constitutional jurists to establish formal grounds for the legitimacy of judicial review under the Canadian constitution. He demonstrates how two variables - constitutional truth and trust in the judiciary - are relied upon in past and contemporary debates about constitutional adjudication to construct four different types of argument about the legitimacy of judicial review. Each of these types of argument is then criticized in the context of recent Charter decisions. It is argued that none of them can sustain the burden of legitimating judicial …

Law, Literature, And The Celebration Of Authority, Robin West

Georgetown Law Faculty Publications and Other Works

Richard Posner's new book, Law and Literature: A Misunderstood Relation, is a defense of “liberal legalism” against a group of modern critics who have only one thing in common: their use of either particular pieces of literature or literary theory to mount legal critiques. Perhaps for that reason, it is very hard to discern a unified thesis within Posner's book regarding the relationship between law and literature. In part, Posner is complaining about a pollution of literature by its use and abuse in political and legal argument; thus, the “misunderstood relation” to which the title refers. At times, Posner suggests …

Faith And Justice, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

What is the relationship between faith and justice? In particular, this Article will address the question of what a Justice of the United States Supreme Court should do, when her religious faith suggests that a case should be resolved in a way that is either inconsistent with the law or not justified by nonreligious, public reasons. May she rely on her religious beliefs to resolve a hard case? May she write an opinion that uses religious grounds to justify her decision?

In this Article, I will undertake to elaborate and defend a distinctively liberal position concerning faith and justice. My …

The Early Role Of The Attorney General In Our Constitutional Scheme: In The Beginning There Was Pragmatism, Susan Low Bloch

Georgetown Law Faculty Publications and Other Works

This article attempts to accomplish two distinct but related objectives. First, it initiates the proposed systematic study of the Office of the Attorney General by examining its early role. Second, it explores how these early experiences help to answer today's questions. To those ends, part I examines the establishment of the Office of the Attorney General. Studying the genesis of the office and contrasting it to the other significant offices created by the First Congress, such as the Secretaries of Foreign Affairs, War, and Treasury, reveals the priorities and concerns of these early legislators, many of whom had been instrumental …

Of Chickens And Eggs−−The Compatibility Of Moral Rights And Consequentialist Analyses, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Philosophers are accustomed to thinking of moral rights and consequentialist analyses as fundamentally incompatible. They frequently debate cases--both hypothetical and real--in which rights and consequences are in conflict. For example, suppose an innocent child knows the whereabouts of a terrorist who has planted a nuclear bomb in a city. Would it be permissible to violate the child's moral right to be free from torture, if this was the only way to save millions of innocent lives? If this is permissible, then do not moral rights yield to concerns about consequences? Or suppose that a community incorrectly believes that an innocent …

Two Conceptions Of The Ninth Amendment, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

The Ninth Amendment has been largely ignored by the Supreme Court of the United States. Because the Ninth Amendment is unquestionably a part of our written Constitution, ignoring it would not have been possible without some theory that renders it without any function. This paper will first examine this theory, which is based on what the author calls the "rights-powers conception" of constitutional rights, a conception of constitutional rights that is applied only to the Ninth Amendment. Then he describes an alternative to this view of the Ninth Amendment, one that is based on what I call the "power-constraint conception" …

Constitutional Bait And Switch: Executive Reinterpretation Of Arms Control Treaties, David A. Koplow

Georgetown Law Faculty Publications and Other Works

A new constitutional crisis has been thrust upon the American body politic. The crisis arises from a dispute concerning the allocation of legal authority for the interpretation, and especially for the reinterpretation, of international agreements. Once a sleepy backwater reserved for specialized scholars, the issue of treaty interpretation has drawn the President and Congress into stark confrontation and generated splashy headlines.

Originalism As Transformative Politics, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

One might easily paint a picture in which the central question debated in constitutional jurisprudence in recent years was whether originalism is the correct theory of constitutional interpretation. This portrait of a constitutional debate could be quite dramatic. Prominent among the figures on the originalist side stand former Judge Robert Bork, Chief Justice William Rehnquist, former Attorney General Edwin Meese, and scholar Raoul Berger. Their opponents, the nonoriginalists, include Senator Joseph Biden, Associate Justice William Brennan, and a host of constitutional scholars. The stakes of the debate seem high: will the legacy of the Warren Court be dismantled by the …

The Powers And The Duties Of Government, John H. Garvey

Scholarly Articles

The government often tries to control people's behavior by the way it hands out benefits. The most common objection to this practice is that it violates the rights of beneficiaries.' I want to make a simple observation about these "rights" cases. We used to treat the violation of rights as a question about the government's power. Now we treat it as a question about the government's duty. This shift in perspective is an important change. If we attend to it, we will be less perplexed by the problem of unconstitutional conditions. Though my point is simple, I will go to …

Dual Sovereignty, Federalism And National Criminal Law: Modernist Constitutional Doctrine And The Nonrole Of The Supreme Court, William W. Van Alstyne

Faculty Publications

No abstract provided.

The Role Of Ideology In Senate Confirmation Of Supreme Court Justices, Jeffrey A. Segal, Albert D. Cover, Charles M. Cameron

Kentucky Law Journal

No abstract provided.

The Changing Importance Of Ideology, Party, And Region In Confirmation Of Supreme Court Nominees, 1953-1988, John D. Felice, Herbert F. Weisberg

Kentucky Law Journal

No abstract provided.

Commentary On Senate Confirmation Of Supreme Court Justices: The Roles Of Organized And Unorganized Interests, Gregory A. Caldeira

Kentucky Law Journal

No abstract provided.

Prosecutorial Indiscretion And The United States Congress: Expanding The Jurisdiction Of The Independent Counsel, Brian A. Cromer

Kentucky Law Journal

No abstract provided.

Constitutional Protections In Fbi Investigations, William Sessions

Kentucky Law Journal

No abstract provided.

Dual Sovereignty, Federalism And National Criminal Law: Modernist Constitutional Doctrine And The Nonrole Of The Supreme Court, William W. Van Alstyne

Faculty Scholarship

This paper examines the growing movement away from the functional nature of federalism contained within the Constitution toward a federalist system that gives extensive discretion to Congress and is only limited by political checks. This political system of federalism has limited the role of the Court in national criminal law because of the deference the Court is expected to give Congress.

Does Autonomy Require Informed And Specific Refusal Of Life-Sustaining Medical Treatment?, Gerard V. Bradley

Journal Articles

Any social order that prizes individual autonomy is committed to collectively informing its autonomous members. A good working definition of "autonomy" is "self-determining free choice." What distinguishes "choice" from mere appetite or desire is deliberation upon known, available options and their probable consequences, and a practical equilibrium of external pressures for and against those options.

Even the most autonomy-driven society will conclude that some of its members - e.g., infants and persons with mental disabilities - are unable to choose for themselves. Autonomy for persons who are incompetent is inapposite because they are incapable of exercising free choice. Thus constitutional …

A Comment On The Rule Of Law Model Of Separation Of Powers, Robert F. Nagel

Publications

No abstract provided.

Forgetting The Constitution, Robert F. Nagel

Publications

No abstract provided.

Originalism As Transformative Politics, Lawrence B. Solum

Faculty Scholarship

Part I of this Essay elaborates upon Perry's observations that, as a matter of hermeneutic theory, we all are originalists and we all are non-originalists; theoretically, there is no real distinction between originalism and non-originalism. Part II provides evidence that, as a matter of practice, self-professed distinctions between originalists and non-originalists are even more dubious; non-originalists respect and rely upon originalist arguments, and originalists frequently ignore evidence of the framers' intentions. Part III applies my arguments to Perry's own theory of constitutional interpretation. Perry's view of the relationship between constitutional interpretation and prophecy illustrates a powerful but neglected insight about …

Freedom Of Communicative Action: A Theory Of The First Amendment Freedom Of Speech, Lawrence B. Solum

Faculty Scholarship

We are still searching for an adequate theory of the first amendment freedom of speech. Despite a plethora of judicial opinions and scholarly articles, there are fundamental conflicts over the meaning of the words "Congress shall make no law ... abridging the freedom of speech." This Article examines the possibility that recent developments in social theory can aid our understanding of the freedom of speech. My thesis is that Jiirgen Habermas' theory of communicative action can serve as the basis for an interpretation of the first amendment that fits the general contours of existing first amendment doctrine and provides a …

Closing The Circle Of Constitutional Review From Griswold V. Connecticut To Roe V. Wade: An Outline Of A Decision Merely Overruling Roe, William W. Van Alstyne

Faculty Publications

No abstract provided.

Nollan, Henry George, And Exactions, Stewart E. Sterk

Articles

The article examines the legal and economic implications of exactions, particularly in light of the Supreme Court's decision in Nollan v. California Coastal Commission. While exactions—requirements imposed on developers to provide municipal benefits—can theoretically promote efficiency and fairness, the analysis suggests that their practical implementation by municipalities is fraught with challenges. These challenges include the potential for inefficiency, unfairness, and arbitrary decision-making, which may undermine their effectiveness and raise constitutional concerns. The article argues that the concerns expressed in Nollan and other cases stem from the fear that exaction schemes could lead to inefficient and unfair municipal behavior, as well …

Takings, Narratives, And Power, Gregory S. Alexander

Cornell Law Faculty Publications

"The Regulatory Takings Problem" is the title given to a story, or narrative, that has become prominent in the literature on just compensation issues. The story is one of power and fear. It is about a perceived imbalance of power between the two groups of actors involved in the process of public land-use regulation--private landowners and government regulators. It depicts scenarios of past or threatened abuse of power by local land-use regulators, and it looks to the takings clause generally and regulatory takings doctrine specifically as crucial corrective devices, essential to set the power imbalance aright. The dominant narrative describes …