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International Law And Constitutional Interpretation: The Commander In Chief Clause Reconsidered, Ingrid Brunk Wuerth
International Law And Constitutional Interpretation: The Commander In Chief Clause Reconsidered, Ingrid Brunk Wuerth
Michigan Law Review
The Commander in Chief Clause is a difficult, underexplored area of constitutional interpretation. It is also a context in which international law is often mentioned, but not fully defended, as a possible method of interpreting the Constitution. This Article analyzes why the Commander in Chief Clause is difficult and argues that international law helps resolve some of the problems that the Clause presents. Because of weaknesses in originalist analysis, changes over time, and lack of judicial competence in military matters, the Court and commentators have relied on second-order interpretive norms like congressional authorization and executive branch practice in interpreting the …
The D'Oh! Of Popular Constitutionalism, Neal Devins
The D'Oh! Of Popular Constitutionalism, Neal Devins
Michigan Law Review
This Review will be divided into three parts. Part I will both summarize The Most Democratic Branch and highlight some of the difficulties that the Supreme Court would face in implementing Rosen's decision-making model. In particular, by allowing the Court to invalidate laws for a host of "antidemocratic" reasons, Rosen's matrix does not constrain the Court in a predictable way. Part II will examine some of the empirical evidence about public attitudes toward the Supreme Court, including public awareness of Supreme Court decisions. I will contend that the Court cannot look to the people to sort out the Constitution's meaning …