Law Commons^™

Under-The-Table Overruling, Christopher J. Peters

All Faculty Scholarship

In this contribution to a Wayne Law Review symposium on the first three years of the Roberts Court, the author normatively assesses the Court's practice of "under-the-table overruling," or "underruling," in high-profile constitutional cases involving abortion, campaign-finance reform, and affirmative action. The Court "underrules" when it renders a decision that undercuts a recent precedent without admitting that it is doing so. The author contends that underruling either is not supported by, or is directly incompatible with, three common rationales for constitutional stare decisis: the noninstrumental rationale, the predictability rationale, and the legitimacy rationale. In particular, while the latter rationale - …

A Textual-Historical Theory Of The Ninth Amendment, Kurt T. Lash

Law Faculty Publications

Despite the lavish attention paid to the Ninth Amendment as supporting judicial enforcement of unenumerated rights, surprisingly little attention has been paid to the Amendment's actual text. Doing so reveals a number of interpretive conundrums. For example, although often cited in support of broad readings of the Fourteenth Amendment, the text of the Ninth says nothing about how to interpret enumerated rights such as those contained in the Fourteenth. The Ninth merely demands that such enumerated rights not be construed to deny or disparage other nonenumerated rights retained by the people. The standard use of the Ninth Amendment, in other …

The Countermajoritarian Difficulty: From Courts To Congress To Constitutional Order, Mark A. Graber

Faculty Scholarship

This review documents how scholarly concern with democratic deficits in American constitutionalism has shifted from the courts to electoral institutions. Prominent political scientists are increasingly rejecting the countermajoritarian difficulty as the proper framework for studying and evaluating judicial power. Political scientists, who study Congress and the presidency, however, have recently emphasized countermajoritarian difficulties with electoral institutions. Realistic normative appraisals of American political institutions, this emerging literature on constitutional politics in the United States maintains, should begin by postulating a set of democratic and constitutional goods, determine the extent to which American institutions as a whole are delivering those goods, and …

Constitutional Clichés, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Popular discourse on constitutional interpretation and judicial review tend to employ a series of catch phrases that have become constitutional clichés. Phrases such as “judicial activism,” “judicial restraint,” “strict construction,” “not legislating from the bench,” “Framers’ intent,” the “dead hand of the past,” and “stare decisis” so dominate public commentary on the Constitution and the courts that quite often that is all one hears. Unfortunately, even law professors are not immune. There was a time when each of these catch phrases meant something and, although each could mean something again, in current debates all have become trite and largely devoid …

Judicial Enforcement Of The Establishment Clause, Richard W. Garnett

Journal Articles

This paper is the author’s contribution to a roundtable conference, held in October of 2008 at Notre Dame Law School, devoted to Prof. Kent Greenawalt’s book, Religion and the Constitution: Establishment and Fairness. It is suggested that Greenawalt’s admirably context-sensitive approach to church-and-state questions might lead us to think that the best course for judges is to find (somehow) some bright-line, on-off “rules” and “tests”, constructed to identify and forbid the most obvious violations of the Religion Clause’s core (whatever that is), and to give up on -- or, perhaps, “underenforce” -- the rest.

Why Counting Votes Doesn't Add Up: A Response To Cox And Miles' Judging The Voting Rights Act, Ellen D. Katz, Anna Baldwin

Articles

In Judging the Voting Rights Act, Professors Adam B. Cox and Thomas J. Miles report that judges are more likely to find liability under section 2 of the Voting Rights Act (VRA) when they are African American, appointed by a Democratic president, or sit on an appellate panel with a judge who is African American or a Democratic appointee. Cox and Miles posit that their findings “contrast” and “cast doubt” on much of the “conventional wisdom” about the Voting Rights Act, by which they mean the core findings we reported in Documenting Discrimination in Voting: Judicial Findings Under Section 2 …

Giving The Constitution To The Courts, Jamal Greene

Faculty Scholarship

Judicial supremacy is the new judicial review. From the time Alexander Bickel introduced the term "countermajoritarian difficulty" in 1962 until very recently, justifying judicial authority to strike down legislation in a nation committed to democratic self-government was the central problem of constitutional theory. But many who had satisfied themselves as to the legitimacy of judicial review have since taken up the related but distinct question of whether, though legitimate, constitutional interpretation should be the exclusive province of the judiciary. That is, is it ever appropriate to locate constitutional interpretive authority outside of constitutional courts, whether within the coordinate branches of …

No Reason To Believe: Radical Skepticism, Emergency Power, And Constitutional Constraint, David Cole

Georgetown Law Faculty Publications and Other Works

This essay reviews Eric Posner and Adrian Vermeule’s Terror in the Balance: Security, Liberty, and the Courts, which I consider the most serious, sustained, and thoughtful effort to defend the Bush administration’s aggressive tactics in the war on terror yet written. That the book is ultimately deeply flawed only underscores the failure of the Bush administration’s approach.

Where most historians view with regret the excesses of past security crises, from the criminalization of speech during World War I to the internment of Japanese Americans during World War II, Posner and Vermeule advance the contrarian view that the system worked exactly …