Law Commons^™

The Constitution As Mirror: Tribe's Constitutional Choices, Richard A. Posner

Michigan Law Review

A Review of Constitutional Choices by Laurence H. Tribe

Hyperspace, Girardeau A. Spann

Michigan Law Review

A Review of The Supreme Court and Constitutional Democracy by John Agresto

Constitutional Adjudication: Deciding When To Decide, Carl Mcgowan

Michigan Law Review

A Review of Judicial Review And The National Political Process: A Functional Reconsideration of the Role of the Supreme Court by Jesse H. Choper

Constitutional Interpretation, Terrance Sandalow

Articles

"[We] must never forget," Chief Justice Marshall admonished us in a statement pregnant with more than one meaning, "that it is a constitution we are expounding."' Marshall meant that the Constitution should be read as a document "intended to endure for ages.to come, and, consequently, to be adapted to the various crises of human affairs."'2 But he meant also that the construction placed upon the document must have regard for its "great outlines" and "important objects."'3 Limits are implied by the very nature of the task. There is not the same freedom in construing the Constitution as in constructing a …

The Eighteenth-Century Background Of John Marshall's Constitutional Jurisprudence, William E. Nelson

Michigan Law Review

This analysis of Marshall's constitutional jurisprudence avoids the pitfalls of previous theories. It does not see the Federalist political program as the source of Marshall's constitutional doctrines and thus does not need to explain how Marshall qualified his political principles or how he convinced non-Federalist judges to accept them. Instead, this essay argues that legal, not political, principles underlay Marshall's jurisprudence, but it attempts to understand those principles in a manner consistent with the unavoidable twentieth-century assumption that law is a body of flexible rules responsive to social reality rather than a series of immutable, unambiguous doctrines derived from a …

Immunity Under The Speech Or Debate Clause For Republican And From Questioning About Sources, Michigan Law Review

Michigan Law Review

Gravel v. United States, which arose out of Senator Mike Gravel's attempt to publicize the Pentagon Papers, concerned the scope of the immunity conferred upon a legislator and his aide under article I, section 6, of the United States Constitution. This provision, commonly called the "speech or debate clause," provides that "for any Speech or Debate in either House, [United States Senators or Representatives] shall not be questioned in any other Place." Gravel is one of the few Supreme Court interpretations of this clause.

Judicial Supremacy Re-Examined: A Proposed Alternative, G. Sidney Buchanan

Michigan Law Review

A citizen critic recently expressed to me his bitter opposition to the Warren Court's decisions on school prayer and school desegregation. If this critic were elected governor of a state or placed in some other position of governmental authority, he would almost certainly use his power to block public school desegregation and to encourage prayer reading in the public schools. Conceding that our critic would be acting controversially in so using his power, would he be acting unconstitutionally? This is the question which this Article will attempt to answer. More generally, this Article will consider the extent to which a …

Wasserstrom: The Judicial Decision- Toward A Theory Of Legal Justification, William B. Harvey

Michigan Law Review

A Review of The Judicial Decision- Toward A Theory of Legal Justification By Richard A. Wasserstrom.

The Supreme Court And The Rule Of Law, Paul G. Kauper

Michigan Law Review

I should like to approach this afternoon's subject along two lines. On the one hand, I propose to develop the subject in terms of the Supreme Court's contribution to our understanding of the Rule of Law, and, on the other hand, I propose to look at the Supreme Court as a governmental institution subject to the Rule of Law. In short, I propose to discuss the Supreme Court both as an instrumentality for the development of the American concept of the Rule of Law and as an institution governed by the Rule of Law. Needless to say, these two approaches …

Reappraisal Of Federal Question Jurisdiction, G. Merle Bergman

Michigan Law Review

For some time I have been reading and listening to criticisms directed toward decisions which the Supreme Court has rendered in cases involving federal question jurisdiction. The general 'tenor of this criticism is that these decisions demonstrate a surprising lack of uniformity and conscious purpose. Writers profess to search in vain for sound logic in the Court's opinions. They point up instead the anomaly which is reflected when cases involving a substantial federal issue are tried in state courts, while those in which no real federal issue is involved are nevertheless accepted for trial in the federal courts. This result, …

Supreme Court's Construction Of The Federal Constitution In 1920-1921, Thomas Reed Powell

Michigan Law Review

While the Constitution does not in terms forbid the United States, as it forbids the states, to pass any law impairing the obligation of contracts, the principle has become established that contracts made by the United States may create rights of which individuals may not be divested. This principle is attached to the Fifth Amendment's prohibition against depriving any person of property without due process of law. In applying this principle, United States v. Northern Pacific Ry. Co.2 held that a grant of land to a railroad to induce its construction is a contract, and that provisions for substituting indemnity …

Supreme Court's Construction Of The Federal Constitution In 1920-1921, Thomas Reed Powell

Michigan Law Review

The difficulty of classifying cases on the police power has not evaporated since the review of decisions for the preceding year. The headings there suggested are used here. Classification on the basis of the objects of the legislation appears too precarious to be attempted with any confidence. It seems safer to work along the line of the subject matters with which the legislation deals. Certain topics are species of a wider genus, and thus the same case may be put in two or more groups. Readers who are dissatisfied with the classification adopted may be assured of the sympathy of …

Supreme Court's Construction Of The Federal Constitution In 1920-1921, Thomas Reed Powell

Michigan Law Review

In a proceeding brought by the United States to restrain the construction of a dam in a stream alleged to be a "navigable river, or other navigable water of the United States," Economy Light & Power Co. v. United States2 held that "a river having actual navigable capacity in its natural state and capable of carrying commerce among the states is within the power of Congress to preserve for future transportation, even though it be not at present used for such commerce, and be incapable of such use according to present methods, either by reason of changed conditions or because …

Supreme Court's Construction Of The Federal Constitution In 1920-1921, Thomas Reed Powell

Michigan Law Review

This review of Supreme Court decisions on constitutional law during the October Term of 1920 follows the plan of its predecessors.' Its aim is the modest one of exposing the precise points decided and the precise or unprecise reasons given in support of the results reached. A valiant effort is made to refrain from criticism or from adding anything to the contributions of the judges. In the footnotes are assembled references to discussions of the cases reviewed in the text and of other issues of constitutional law considered in recognized law journals from October, 1920, to October, 1921. No effort …

The Commodity Clause Of The Hepburn Act, Edwin C. Goddard

Articles

The Supreme Court of the United States has added another to the interesting line of cases construing the so-called "Commodity Clause" of the HEPBURN ACT of 1906. In United States v. Delaware, Lackawanna & Western Railroad Co. and the Delaware, Lackawanna & Western Coal Co., decided on June 21, 1915, 35 Sup. Ct. 873, the court reversed the decree of the District Court as reported in 213 Fed. 240, and found the relation and contract between the Railroad Company and the Coal Company to be in violation of the HEPBURN ACT and the SHERMAN ACT.

A Treatise On The Constitutional Limitations Which Rest Upon The Legislative Power Of The States Of The American Union, Thomas M. Cooley, Victor H. Lane

Books

“At the request of the late Judge Cooley I have undertaken the preparation of this edition of the Constitutional Limitations. It seemed desirable, in view of all the circumstances, that the text of the last edition should stand as the text for this, and the work of the present editor has been confined to the bringing of the book down to date, by the addition of such matter to the notes as will fairly present the development of this branch of the law since the publication of the last edition.” --Preface to the Seventh Edition, Victor H. Lane, Ann Arbor, …

A Treatise On The Constitutional Limitations Which Rest Upon The Legislative Power Of The States Of The American Union, Thomas M. Cooley

Books

In the Preface to the first edition of this work. the author stated its purpose to be, to furnish to the practitioner and the student of the law such a presentation of elementary constitutional principles as should serve, with the aid of its references to judicial decisions, legal treatises, and historical events, as a convenient guide in the examination of questions respecting the constitutional limitations which rest upon the power of the several State legislatures. …

Preface to the 4th Edition: "New topics in State Constitutional Law are not numerous; but such as are suggested by recent decisions have been …