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American Constitutional Conventions: The Judicially Unenforceable Rules That Combine With Judicial Doctrine And Public Opinion To Regulate Political Behavior, James G. Wilson
Law Faculty Articles and Essays
The concept of nonjusticiability, reflected primarily through the “political question” and the “standing” doctrines, fails to give the Supreme Court (and the rest of us) adequate guidance on how to resolve many constitutional disputes, such as impeachment procedures and standards, congressional expulsions, the scope of federal court jurisdiction, and the use of force abroad. These two doctrines put the Supreme Court on the horns of a false dichotomy. The Court tends to withdraw completely from an issue and from enforcing a textual passage, such as the Republican Guarantee Clause, whenever it makes a determination of nonjusticiability. Conversely, once the Court …
Transcending Conventional Supremacy: A Reconstruction Of The Supremacy Clause, S. Candice Hoke
Transcending Conventional Supremacy: A Reconstruction Of The Supremacy Clause, S. Candice Hoke
Law Faculty Articles and Essays
Perhaps because the predominant strands of contemporary Supremacy Clause jurisprudence originate in two of the most venerable cases in the Court's history, the Court and academics alike have sidestepped some of their problematic pronouncements. In Part I, this Article questions the legacy of McCulloch v. Maryland and Gibbons v. Ogden, finding their Supremacy Clause principles unacceptably nationalistic and hence unfaithful to the balance of the Constitution. While their centralizing tendencies may have been understandable during the nation's infancy, their raison d'être has evaporated; the pendulum of state versus national regulatory power on matters other than individual liberties has swung too …