Law Commons^™

Reconsidering Gobitis: An Exercise In Presidential Leadership, Robert L. Tsai

Faculty Scholarship

In June of 1940, the Supreme Court ruled 8-1 in Minersville School District v. Gobitis that the First Amendment posed no barrier to the punishment of two school age Jehovah's Witnesses who refused to pay homage to the American flag. Three years later, the Justices reversed themselves in West Virginia State Board of Education v. Barnette. This sudden change has prompted a host of explanations. Some observers have stressed changes in judicial personnel in the intervening years; others have pointed to the wax and wane of general anxieties over the war; still others have emphasized the sympathy-inspiring acts of …

Mostly Unconstitutional: The Case Against Precedent Revisited, Gary S. Lawson

Faculty Scholarship

In Part I of this Article, the author briefly recaps the argument against precedent that the author sketched in The Constitutional Case Against Precedent. Although the author’s purpose here is to refine that argument, the author still believes that the original argument is right in most particulars, and it still functions as a prima facie case against the use of precedent in constitutional interpretation. In Part II, the author surveys different possible grounds for the practice of precedent. In Part III, the author dismisses the possibility that the Constitution or some other controlling legal source affirmatively commands the use of …

Democracy's Handmaid, Robert L. Tsai

Faculty Scholarship

Democratic theory presupposes open channels of dialogue, but focuses almost exclusively on matters of institutional design writ large. The philosophy of language explicates linguistic infrastructure, but often avoids exploring the political significance of its findings. In this Article, I draw from the two disciplines to reach new insights about the democracy enhancing qualities of popular constitutional language. Employing examples from the founding era, the struggle for black civil rights, the religious awakening of the last two decades, and the search for gay equality, I present a model of constitutional dialogue that emphasizes common modalities and mobilized vernacular. According to this …

Sacred Visions Of Law, Robert L. Tsai

Faculty Scholarship

Around the time of the Bicentennial Celebration of the U.S. Constitution's framing, Professor Sanford Levinson called upon Americans to renew our constitutional faith. This article answers the call by examining how two legal symbols - Marbury v. Madison and Brown v. Board of Education - have been used by jurists over the years to tend the American community of faith. Blending constitutional theory and the study of religious form, the article argues that the decisions have become increasingly linked in the legal imagination even as they have come to signify very different sacred visions of law. One might think that …

Holmes On The Lochner Court, Gerald F. Leonard

Faculty Scholarship

For this symposium on Lochner, I examined the jurisprudence of the man commonly thought to be the Lochner majority's fiercest foe, Justice Oliver Wendell Holmes, Jr. Holmes wrote the famous dissent in Lochner and other cases of the era. But as Barry Cushman notes in his contribution to this symposium, Holmes joined many a Lochner-era majority in striking down any number of economic regulations. Holmes's Fourteenth Amendment opinions suggest: 1) that, while Holmes advocated a somewhat more pointed rule of deference to legislatures than did most of his colleagues, his language in this respect was far less radical than is …

Lawrence's Republic, James E. Fleming

Faculty Scholarship

I am delighted and honored to participate in this symposium critiquing and celebrating the remarkable scholarship of Frank Michelman. I was a student of Frank-but of course we all are students of Frank. I also have had the good fortune to be a colleague of Frank-he has been a distinguished visiting professor at Fordham and has generously participated in a number of our conferences there. The only problem I had in preparing for the symposium is that Frank's scholarship is so rich and wide-ranging that it was difficult to decide what to write about. I initially planned to write a …

Interpretative Equality As A Structural Imperative (Or 'Pucker Up And Settle This!'), Gary S. Lawson

Faculty Scholarship

To serious students of the Constitution, Chief Justice Marshall's discussion of judicial review in Marbury v. Madison was about judicial equality-the power of the courts, co-equal to the similar powers of the legislative and executive departments, to construe and apply the Constitution in the course of their duties. To less serious students of the Constitution, Marbury was about judicial supremacy-the supposedly paramount power of courts to interpret and apply the Constitution in a fashion that binds other legal actors, including the legislative and executive departments and state officials.

Lessons From The World Conference Against Racism, Peggy Maisel

Faculty Scholarship

It is difficult to get people to remember, let alone focus on the accomplishments and ongoing challenges that emerged during the United Nations sponsored World Conference Against Racism, Racial Discrimination, Xenophobia, and Related Intolerance (the WCAR) held just over a year ago in Durban, South Africa. The reason is simple: that conference ended on September 8, 2001, and what we remember about that period is now permanently obscured by what happened just three short days later. But the events of September 11 make it more imperative than ever that we address the evils of racism, racial discrimination, and xenophobia. It …

When Did The Constitution Become Law, Gary S. Lawson

Faculty Scholarship

Conventional wisdom and Supreme Court doctrine hold that the federal Constitution became legally effective on March 4, 1789, when the first session of Congress began. This conclusion is wrong, or at least seriously incomplete. Evidence from the Constitution, its adoption, and contemporaneous understandings reflected in treaties, statutes, and state constitutions demonstrates that the Constitution did not have a single effective date. Instead, different parts of the Constitution took effect in stages, beginning on June 21, 1788, when New Hampshire became the ninth state to ratify the document, and continuing at least until April 30, 1789, when President Washington was sworn …

Party As A 'Political Safeguard Of Federalism': Martin Van Buren And The Constitutional Theory Of Party Politics, Gerald F. Leonard

Faculty Scholarship

In the last decade or so, the Supreme Court has revitalized judicial enforcement of federalism. This development has spurred the partisans of Herbert Wechsler's "political safeguards of federalism" to begin a serious investigation of the ways in which extra-judicial politics can and does substitute for and complement the judicial role in enforcing federalism and the Constitution. Similarly, constitutional scholars have turned in increasing numbers to the question of how even judicially promulgated doctrines of constitutional law turn out to be more derivative of popular politics than vice versa. Necessarily, much of the investigation on both fronts has turned historical and …

Everything I Need To Know About Presidents I Learned From Dr. Seuss, Gary S. Lawson

Faculty Scholarship

Oaths are out of fashion these days. This is an era in which it is widely considered unreasonable to expect the President of the United States to obey basic principles of law and justice, much less to honor something as abstract as an oath. Perjury the violation of a legally binding oath-is publicly defended as proof of the offender's humanity rather than his criminality. And one should not even mention in polite company something as gauche as honoring an oath of marriage. Those pesky vows of marital fidelity were, after all, just words.

Delegation And The Constitution, Gary S. Lawson

Faculty Scholarship

In 1690, John Locke wrote that legislators “can have no power to transfer their authority of making laws and place it in other hands.” A century later, in 1789, the federal Constitution provided that “all legislative Powers herein granted shall be vested in a Congress of the United States.” A little more than a hundred years later, in 1892, the Supreme Court declared in Field v. Clark: “That Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution.”

In 1989, nearly …

The Rise And Rise Of The Administrative State, Gary S. Lawson

Faculty Scholarship

The post-New Deal administrative state is unconstitutional, and its validation by the legal system amounts to nothing less than a bloodless constitutional revolution. The original New Dealers were aware, at least to some degree, that their vision of the national government's proper role and structure could not be squared with the written Constitution: The Administrative Process, James Landis's classic exposition of the New Deal model of administration, fairly drips with contempt for the idea of a limited national government subject to a formal, tripartite separation of powers. Faced with a choice between the administrative state and the Constitution, the architects …

The Social Origins Of Property, Jack M. Beermann, Joseph William Singer

Faculty Scholarship

The takings clause of the United States Constitution requires government to pay compensation when private property is taken for public use.' When government regulates, but does not physically seize, property, the Supreme Court of the United States has had trouble defining when individuals have been deprived of property rights so as to give them a right to compensation. The takings clause serves "to bar Government from forcing some people alone to bear public burdens that, in all fairness and justice, should be borne by the public as a whole."' To determine when a regulation amounts to a "taking" of property …

Supreme Court's Tilt To The Property Right: Procedural Due Process Protections Of Liberty And Property Interests, Jack M. Beermann, Barbara A. Melamed, Hugh F. Hall

Faculty Scholarship

The Due Process Clauses of the Fifth and Fourteenth Amendments to the United States Constitution provide important protections against government oppression. They provide that government may not deprive any person of "life, liberty or property" without due process of law. In recent decisions, the Supreme Court has appeared willing to strengthen its protection of traditional property interests yet weaken its protection of liberty interests.

It has long been accepted, albeit with controversy, that due process has both procedural and substantive elements. This essay concerns the procedural elements. Procedural due process analysis asks two questions: first, whether there exists a liberty …

Rethinking "Original Intent", David B. Lyons

Faculty Scholarship

Although Dred Scott v. Sandford is one of the Supreme Court's most controversial decisions, it is not often taught or read. But its approach to constitutional interpretation is by no means outdated, and its historical importance has not diminished. So it seems a good example to consider.

'Were There No Appeal': The History Of Review In American Criminal Courts, David Rossman

Faculty Scholarship

The contemporary criminal justice system is guided, in large part, from the top down. A great deal of the force that drives the "terrible engine" of the criminal law is supplied by courts that consider cases on review after a defendant has been convicted.

Choosing Judges The Democratic Way, Larry Yackle

Faculty Scholarship

A generation ago, the pressing question in constitutional law was the countermajoritarian difficulty.' Americans insisted their government was a democratic republic and took that to mean rule by a majority of elected representatives in various offices and bodies, federal and local. Yet courts whose members had not won election presumed to override the actions of executive and legislative officers who had. The conventional answer to this apparent paradox was the Constitution, which arguably owed its existence to the people directly. Judicial review was justified, accordingly, when court decisions were rooted firmly in the particular text, structure, or historical backdrop of …

A Preface To Constitutional Theory, David B. Lyons

Faculty Scholarship

We have a plethora of theories about judicial review, including theories about theories, but their foundations require stricter scrutiny. This Essay presents some aspects of the problem through an examination of two important and familiar ideas about judicial review.

The controversy over "noninterpretive" review concerns the propriety of courts' deciding constitutional cases by using extraconstitutional norms. But the theoretical framework has not been well developed and appears to raise the wrong questions about judicial review. Thayer's doctrine of extreme judicial deference to the legislature has received much attention, but his reasoning has been given less careful notice. Thayer's rule rests …