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Full-Text Articles in Law
Can Courts Save Us From Unconstitutional Government Conduct?, John M. Greabe
Can Courts Save Us From Unconstitutional Government Conduct?, John M. Greabe
Law Faculty Scholarship
[Excerpt] "We are living in a troubled time. Across the political spectrum, there is a great deal of concern that government officials have been derelict in honoring their oaths to support and defend the Constitution."
Doing Gloss, Curtis A. Bradley
Doing Gloss, Curtis A. Bradley
Faculty Scholarship
It is common for courts, the political branches, and academic commentators to look to historical governmental practices when interpreting the separation of powers. There has been relatively little attention, however, to the proper methodology for invoking such “historical gloss.” This Essay contends that, in order to gain traction on the methodological questions, we need to begin by considering the potential justifications for crediting gloss. For judicial application of gloss, which is this Essay’s principal focus, there are at least four such justifications: deference to the constitutional views of nonjudicial actors; limits on judicial capacity; Burkean consequentialism; and reliance interests. As …