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Full-Text Articles in Law
Suspect Spheres, Not Enumerated Powers: A Guide For Leaving The Lamppost, Richard Primus, Roderick M. Hills Jr.
Suspect Spheres, Not Enumerated Powers: A Guide For Leaving The Lamppost, Richard Primus, Roderick M. Hills Jr.
Michigan Law Review
Despite longstanding orthodoxy, the Constitution’s enumeration of congressional powers does virtually nothing to limit federal lawmaking. That’s not because of some bizarrely persistent judicial failure to read the Constitution correctly. It’s because the enumeration of congressional powers is not a well-designed technology for limiting federal legislation. Rather than trying to make the enumeration do work that it will not do, decisionmakers should find better ways of thinking about what lawmaking should be done locally rather than nationally. This Article suggests such a rubric, one that asks not whether Congress has permission to do a certain thing but whether a certain …
Restoring Congress's Role In The Modern Administrative State, Christopher J. Walker
Restoring Congress's Role In The Modern Administrative State, Christopher J. Walker
Michigan Law Review
A review of Josh Chafetzm Congress's Constitution: Legislative Authority and Separation of Powers.
Gerrymandering And The Constitutional Norm Against Government Partisanship, Michael S. Kang
Gerrymandering And The Constitutional Norm Against Government Partisanship, Michael S. Kang
Michigan Law Review
This Article challenges the basic premise in the law of gerrymandering that partisanship is a constitutional government purpose at all. The central problem, Justice Scalia once explained in Vieth v. Jubilerer, is that partisan gerrymandering becomes unconstitutional only when it “has gone too far,” giving rise to the intractable inquiry into “how much is too much.” But the premise that partisanship is an ordinary and lawful purpose, articulated confidently as settled law and widely understood as such, is largely wrong as constitutional doctrine. The Article surveys constitutional law to demonstrate the vitality of an important, if implicit norm against …
Deliberating About Deliberation, Frederick Schauer
Deliberating About Deliberation, Frederick Schauer
Michigan Law Review
A Review of We the People: 1: Foundations by Bruce Ackerman