Law Commons^™

Originalism And Parking Tickets, Lawrence Rosenthal

ExpressO

Originalism – the view that constitutional provisions should be interpreted as they were “understood at the time of the law’s enactment” – is the ascendant method of constitutional interpretation. In particular, originalists argue that the Constitution's open-ended provisions should be interpreted in light of their generally understood legal meaning at the time of their framing. An originalist view of due process -- entitling civil and criminal defendants to those procedures considered "due" at the time of framing -- would accordingly condemn any number of innovations in criminal and civil procedures' that alter framing-era procedural rights, such as the novel systems …

Squaring The Circle: Democratizing Judicial Review And The Counter-Constitutional Difficulty, Miguel Schor

ExpressO

The Article argues that the polarization in the appointments process for the United States Supreme Court creates a problem that I call the counter-constitutional difficulty. A constitution is designed to put certain decisions off limits to the workings of ordinary politics. Laws can be made and changed by majoritarian mechanisms whereas a constitution can be made and changed only by supermajoritarian mechanisms. The United States Constitution, however, has an Achilles heel. The easiest way to amend the Constitution is by changing the membership of the Supreme Court given the rigors of Article V. A number of decisions by the Court …

The Place Of Structural Arguments In Contemporary Constitutional Theory, Kenneth Ward

ExpressO

This essay illustrates how our interest in questions of constitutional doctrine makes it difficult to assess structural arguments about judicial authority. In the past forty years, we have witnessed a shift in American constitutional theory. Scholars once assessed judicial authority based on their expectations of how judges should decide cases. In time, many concluded that discretion is an inevitable consequence of constitutional interpretation and therefore sought to justify such authority.

This shift has led some scholars to give greater emphasis to structural arguments. They identify institutional virtues that explain the judiciary’s role in a well ordered government. Although these scholars …