Law Commons^™

The Constitutional Constant, Richard A. Primus

Articles

According to a conventional view of the Constitution as a precommitment strategy, constitutional rules must remain fixed over time in order for the Constitution to do its work. In practice, however, constitutional rules regularly change over time, even without formal amendment. What is actually constant over time in the American constitutional system is not the content of constitutional law: it is the correspondence between the content of constitutional law and the American people’s (or at least the decision-making class’s) most powerful intuitions about issues of structure and ethos in American government. At any given time, constitutional law reflects those intuitions. …

The Religious Freedom Restoration Act Is A Constitutional Expansion Of Rights, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

Semantic Vagueness And Extrajudicial Constitutional Decisionmaking, Anthony O'Rourke

William & Mary Bill of Rights Journal

This Article integrates two scholarly conversations to shed light on the divergent ways in which courts and legislatures implement constitutional texts. First, there is a vast literature examining the different ways in which courts and extrajudicial institutions, including legislatures, implement the Constitution’s textually vague expressions. Second, in recent years legal philosophers have begun to use philosophy of language to elucidate the relationship between vague legal texts and the content of laws. There is little scholarship, however, that uses philosophy of language to analyze the divergent ways in which legislatures and courts implement vague constitutional provisions. This Article argues that many …

Judicial Departmentalism: An Introduction, Kevin C. Walsh

William & Mary Law Review

This Article introduces the idea of judicial departmentalism and argues for its superiority to judicial supremacy. Judicial supremacy is the idea that the Constitution means for everybody what the Supreme Court says it means in deciding a case. Judicial departmentalism, by contrast, is the idea that the Constitution means in the judicial department what the Supreme Court says it means in deciding a case. Within the judicial department, the law of judgments, the law of remedies, and the law of precedent combine to enable resolutions by the judicial department to achieve certain kinds of settlements. Judicial departmentalism holds that these …

In Defense Of Judicial Supremacy, Erwin Chemerinsky

William & Mary Law Review

“Judicial supremacy” is the idea that the Supreme Court should be viewed as the authoritative interpreter of the Constitution and that we should deem its decisions as binding on the other branches and levels of government, until and unless constitutional amendment or subsequent decision overrules them. This is desirable because we want to have an authoritative interpreter of the Constitution and the Court is best suited to play this role. Under this view, doctrines which keep federal courts from enforcing constitutional provisions—such as denying standing for generalized grievances, the political question doctrine, and the state secrets doctrine—are misguided and should …

Judicial Supremacy And Taking Conflicting Rights Seriously, Rebecca L. Brown

William & Mary Law Review

The best arguments in favor of judicial supremacy rely on its essential role of protecting rights in a democracy. The doctrinal technique of strict scrutiny, developed to do the work of judicial supremacy, has been an important tool in our constitutional jurisprudence in the service of rights protection. When the Supreme Court reviews laws that themselves seek to enhance or preserve constitutional rights, however, strict scrutiny does not provide the right approach. Rather, the Court should consider very carefully the rights claims in favor of the statute as well as those launched by a challenger. In such cases of conflicting …

The Annoying Constitution: Implications For The Allocation Of Interpretive Authority, Frederick Schauer

William & Mary Law Review

Constitutional constraints often restrict unwise or immoral official policies and actions, but also often invalidate laws and other official acts that are sound as a matter of both morality and policy. These second-order side constraints—or trumps—on even official acts that are sound as a matter of first-order policy reflect deeper or longerterm values, and they are central to understanding the very idea of constitutionalism. Moreover, once we see the Constitution as restricting not only the unsound and the unwise but also the sound and the wise, we can understand why expecting those whose sound ideas and policies are nevertheless unconstitutional …

Much Ado About Nothing: Signing Statements, Vetoes, And Presidential Constitutional Interpretation, Keith E. Whittington

William & Mary Law Review

During the Bush presidency, presidential signing statements became briefly controversial. The controversy has faded, but the White House continues to issue statements when signing legislation. Those statements frequently point out constitutional difficulties in new statutes and sometimes warn that the executive branch will administer the statutes so as to avoid those constitutional difficulties. This Article argues that the criticisms of signing statements were mostly misguided. Signing statements as such present few problems and offer some benefits to the workings of the American political system. While there might be reason to object to the substantive constitutional positions adopted in any given …

Why Congress Does Not Challenge Judicial Supremacy, Neal Devins

William & Mary Law Review

Members of Congress largely acquiesce to judicial supremacy both on constitutional and statutory interpretation questions. Lawmakers, however, do not formally embrace judicial supremacy; they rarely think about the courts when enacting legislation. This Article explains why this is so, focusing on why lawmakers have both strong incentive to acquiesce to judicial power and little incentive to advance a coherent view of congressional power. In particular, lawmakers are interested in advancing favored policies, winning reelection, and gaining personal power within Congress. Abstract questions of institutional power do not interest lawmakers and judicial defeats are seen as opportunities to find some other …

Judicial Supremacy Revisited: Independent Constitutional Authority In American Constitutional Law And Practice, Mark A. Graber

William & Mary Law Review

The Supreme Court exercises far less constitutional authority in American law and practice than one would gather from reading judicial opinions, presidential speeches, or the standard tomes for and against judicial supremacy. Lower federal court judges, state court justices, federal and state elected officials, persons charged with administering the law, and ordinary citizens often have the final say on particular constitutional controversies or exercise temporary constitutional authority in ways that have more influence on the parties to that controversy than the eventual Supreme Court decision. In many instances, Supreme Court doctrine sanctions or facilitates the exercise of independent constitutional authority …

The Return Of The Unprovided-For Case, Michael S. Green

Faculty Publications

No abstract provided.

Soft Supremacy, Corinna Barrett Lain

William & Mary Law Review

The debate over judicial supremacy has raged for more than a decade now, yet the conception of what it is we are arguing about remains grossly oversimplified and formalistic. My aim in this symposium contribution is to push the conversation in a more realistic direction; I want those who claim that judicial supremacy is antidemocratic to take on the concept as it actually exists. The stark truth is that judicial supremacy has remarkably little of the strength and hard edges that dominate the discourse in judicial supremacy debates. It is porous, contingent—soft. And the upshot of soft supremacy is this: …

Construction, Originalist Interpretation And The Complete Constitution, Richard Kay

Richard Kay

The Declaration Of Independence And Constitutional Interpretation, Alexander Tsesis

Faculty Publications & Other Works

This Article argues that the Reconstruction Amendments incorporated the human dignity values of the Declaration of Independence. The original Constitution contained clauses, which protected the institution of slavery, that were irreconcilable with the normative commitments the nation had undertaken at independence. The Thirteenth, Fourteenth, and Fifteenth Amendments set the country aright by formally incorporating the Declaration of Independence's principles for representative governance into the Constitution.

The Declaration of Independence provides valuable insights into matters of human dignity, privacy, and self-government. Its statements about human rights, equality, and popular sovereignty establish a foundational rule of interpretation. While the Supreme Court has …

Uniformity In Constitutional Interpretation And The Background Right To Effective Democratic Governance, Donald L. Beschle

Donald L. Beschle

No abstract provided.

What Did They Mean?: How Principles Of Group Communication Can Inform Original Meaning Jurisprudence And Address The Problem Of Collective Intent, W. Matt Morgan

William & Mary Bill of Rights Journal

No abstract provided.

Magic Words, Kiel Brennan-Marquez

William & Mary Bill of Rights Journal

Broadly speaking, this Article has two goals. The first is to demonstrate the prominence of functionalism in the interpretive practices of the Supreme Court. Reading a case like NFIB, it would be easy to conclude that the tension between labels and function reflects a deep rift in our legal order. On reflection, though, the rift turns out to be something of a mirage. While judicial opinions do occasionally employ the rhetoric of label-formalism, we are all functionalists at heart.

The Article’s second goal is to explore two exceptions to this norm. One is a faux exception—an exception to functionalism that …

Ohio V. Clark: Testimonial Statements Under The Confrontation Clause, Mesha Sloss

Duke Journal of Constitutional Law & Public Policy Sidebar

In Crawford v. Washington, the Supreme Court declared that an accused right under the Constitution to confront the witnesses against him applied only to “testimonial statements.” That decision, however, did not attempt to fully define the scope of testimonial statements. This commentary analyzes Ohio v. Clark, a case which will decide the question of whether statements made by a child to a person with a duty to report allegations of child abuse are testimonial statements. In this case a young child was questioned at school by a teaching assistant about his injuries. This statement was then offered in …

Keeping Civil Rights Debates Civil: Removing Opportunities For Prejudice, Steven Saracco

Duke Journal of Constitutional Law & Public Policy Sidebar

Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of religion in employment decisions made by private employers. This commentary analyzes Equal Employment Opportunity Commission v. Abercrombie & Fitch, a case before the Supreme Court on the issue of whether a job applicant bears the burden of expressly notifying an employer of a conflict between the applicant’s religious beliefs and the employer’s policies before the employer must offer a reasonable accommodation. This case deals with a Muslim woman who was denied employment at a clothing store because her headdress was deemed to be a …

Zivotofsky V. Kerry: Of Passports, Politics, And Foreign Policy Powers, Cara J. Grand

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary profiles the upcoming Supreme Court decision in Zivotofsky v. Kerry, which will decide, for the first time in United States history, the dividing line between legislative and executive authority to recognize foreign nations. Though it emanates from a seemingly-benign passport disagreement about a place-of-birth designation, this case will address an unprecedented and extremely controversial issue about separation of powers that has somehow evaded a Supreme Court decision. The Author profiles the case history and applicable legal precedent and analyzes the arguments for both sides before recommending that the Court should not find the President's power in this …

Embracing Administrative Constitutionalism, Bertrall L. Ross

Bertrall L Ross

Administrative agencies engage in constitutionalism. They resolve questions of statutory meaning and scope that implicate constitutional questions. Even when agencies do not consciously set out to weigh in on constitutional

questions, by interpreting and applying statutes that rest on constitutional values, agencies elaborate constitutional meaning.

Should courts and theorists embrace or resist administrative

constitutionalism? For those who believe that the courts are the exclusive and final interpreters of the Constitution, it seems natural to oppose it. Thus, over the past forty years, the Supreme Court has resisted administrative constitutionalism. When agencies elaborate constitutional meaning in their interpretation of statutes, the …

The Illusory Eighth Amendment, John F. Stinneford

John F. Stinneford

Although there is no obvious doctrinal connection between the Supreme Court’s Miranda jurisprudence and its Eighth Amendment excessive punishments jurisprudence, the two are deeply connected at the level of methodology. In both areas, the Supreme Court has been criticized for creating “prophylactic” rules that invalidate government actions because they create a mere risk of constitutional violation. In reality, however, both sets of rules deny constitutional protection to a far greater number of individuals with plausible claims of unconstitutional treatment than they protect. This dysfunctional combination of over- and underprotection arises from the Supreme Court’s use of implementation rules as a …

Thick Constitutional Readings: When Classic Distinctions Are Irrelevant, David Robertson

Georgia Journal of International & Comparative Law

No abstract provided.

Bond V. United States. Deciphering Missouri V. Holland And The Scope Of Congress's Powers When Implementing A Non-Self-Executing Treaty, Stephanie Peral

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, Bond v. United States. What started as an act of revenge by a jealous wife will require the Supreme Court to examine a ninety-year old precedent concerning the extent of Congress's powers when acting pursuant to a treaty and whether a valid treaty allows Congress to act without being limited by the Article I enumerated powers.

A Bridge Too Far: The Limits Of The Political Process Doctrine In Schuette V. Coalition To Defend Affirmative Action, Christopher E. D'Alessio

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, Schuette v. Coalition to Defend Affirmative Action, in which the Court will consider whether Michigan violated the Equal Protection Clause of the Fourteenth Amendment by amending its constitution to prohibit race-based preferential treatment in public-university admissions decisions.

Kaley V. United States: The Right To Counsel Of Choice Caught In The Wide Net Of Asset Forfeiture, Adam J. Fine

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, Kaley v. United States, in which the Court may decide whether a defendant who needs potentially forfeitable assets to retain counsel of choice is entitled, under the Due Process Clause, to a hearing to challenge the grand jury's finding of probable cause.

Juries And The Criminal Constitution, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

Judges are regularly deciding criminal constitutional issues based on changing societal values. For example, they are determining whether police officer conduct has violated society’s "reasonable expectations of privacy" under the Fourth Amendment and whether a criminal punishment fails to comport with the "evolving standards of decency that mark the progress of a maturing society" under the Eighth Amendment. Yet judges are not trained to assess societal values, nor do they, in assessing them, ordinarily consult data to determine what those values are. Instead, judges turn inward, to their own intuitions, morals, and values, to determine these matters. But judges’ internal …

The Illusory Eighth Amendment, John F. Stinneford

UF Law Faculty Publications

Although there is no obvious doctrinal connection between the Supreme Court’s Miranda jurisprudence and its Eighth Amendment excessive punishments jurisprudence, the two are deeply connected at the level of methodology. In both areas, the Supreme Court has been criticized for creating “prophylactic” rules that invalidate government actions because they create a mere risk of constitutional violation. In reality, however, both sets of rules deny constitutional protection to a far greater number of individuals with plausible claims of unconstitutional treatment than they protect.

This dysfunctional combination of over- and underprotection arises from the Supreme Court’s use of implementation rules as a …

Lost Fidelities, Barry Cushman

Barry Cushman

No abstract provided.

The Voting Rights Act's Fight To Stay Rational: Shelby County V. Holder, Sudeep Paul

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, Shelby County v. Holder, in which the Court may decide whether Congress's 2006 reauthorization of Section 5 and Section 4(b) of the Voting Rights Act was constitutional.