Law Commons^™

Plausible Absurdities And Practical Formalities: The Recess Appointments Clause In Theory And Practice, David Frisof

Michigan Law Review

The recent controversy surrounding President Obama’s recess appointments to the National Labor Relations Board and the Consumer Financial Protection Bureau while the Senate was holding pro forma sessions illustrates the need to reach a new understanding of the Recess Appointments Clause of the Constitution. For the Recess Appointments Clause to be functional, it must fulfill two essential constitutional purposes: it must act as a fulcrum in the separation of powers, and it must ensure the continued exercise of the executive power. Achieving this functionality depends not only on the formal constructions of the Clause but also on the ways in …

From Commonwealth To Constitutional Limitations: Thomas Cooley's Michigan, 1805-1886, Robert Allan Olender

SJD Dissertations

In response to what he perceived as the challenges associated with republican governance in the later portions of the nineteenth century, Michigan’s Thomas McIntyre Cooley penned his treatise concerning constitutional limitations on legislative power. In it, Cooley offered a vision of government where courts would check government power and would raise constitutional barriers against the impact of improper influences on legislators. As a student of history, Cooley grounded his beliefs and doctrines in experience, not philosophical reflections. Believing that “the fruits of speculative genius in government are of little value,” Cooley submitted that governing structures and law “must be the …

Jack Balkin's Rich Historicism And Diet Originalism: Health Benefits And Risks For The Constitutional System, Neil S. Siegel

Michigan Law Review

Jack Balkin's Living Originalism is a sweet read. It is beautifully written, illuminating, and provocative. It is conducive to deep reflection about foundational questions. In the book, Balkin reasons from two points of view - the perspective of the constitutional system as a whole and the perspective of the faithful participant in that system (p. 130). First, he provides a systemic account of constitutional change, which he calls "living constitutionalism." Second, he offers an approach to constitutional interpretation and construction, which he calls "framework originalism." These two components-living constitutionalism and framework originalism - together constitute his overall theory of "living …

The Scarlet Letter: The Supreme Court And The Language Of Abortion Stigma, Paula Abrams

Michigan Journal of Gender & Law

Why does the Supreme Court refer to the woman who is seeking an abortion as "mother"? Surely the definition has not escaped the attention of a Court that frequently relies on the dictionary to define important terms or principles. And why does the Court choose to describe the fetus as a child? What message does this language send about abortion and the woman who seeks an abortion? The Court's abortion decisions embody an ongoing debate on the legitimacy of constitutional protection of the right to choose. This debate unfolds most obviously as a discourse on constitutional interpretation; disagreements within the …

Unbundling Constitutionality, Richard A. Primus

Articles

Constitutional theory features a persistent controversy over the source or sources of constitutional status, that is, over the criteria that qualify some rules as constitutional rules. This Article contends that no single criterion characterizes all of the rules that American law treats as constitutional, such that it is a mistake to think of constitutionality as a status with necessary conditions. It is better to think of constitutionality on a bundle-of-sticks model: different attributes associated with constitutionality might or might not be present in any constitutional rule. Analysts should often direct their attention more to the separate substantive properties that are …

Stare Decisis And Constitutional Text, Jonathan F. Mitchell

Michigan Law Review

Almost everyone acknowledges that stare decisis should play a significant role when the Supreme Court of the United States resolves constitutional cases. Yet the academic and judicial rationales for this practice tend to rely on naked consequentialist considerations, and make only passing efforts to square the Court's stare decisis doctrines with the language of the Constitution. This Article offers a qualified defense of constitutional stare decisis that rests exclusively on constitutional text. It aims to broaden the overlapping consensus of interpretive theories that can support a role for constitutional stare decisis, but to do this it must narrow the circumstances …

Assessing The State Of The State Constitutionalism, Jim Rossi

Michigan Law Review

Robert Williams's The Law of American State Constitutions is an impressive career accomplishment for one of the leading academic lawyers writing on state constitutions. Given the need for a comprehensive, treatise-like treatment of state constitutions that transcends individual jurisdictions, Williams's book will almost certainly become the go-to treatise for the next generation of state constitutional law practitioners and scholars. The U.S. Constitution has a grip on how the American legal mind approaches issues in American constitutionalism, but an important recurring theme in Williams's work (as well as that of others) is how state constitutions present unique interpretive challenges. More than …

Commerce In The Commerce Clause: A Response To Jack Balkin, Robert G. Natelson

Michigan Law Review First Impressions

The Constitution's original meaning is its meaning to those ratifying the document during a discrete time period: from its adoption by the Constitutional Convention in late 1787 until Rhode Island's ratification on May 29, 1790. Reconstructing it requires historical skills, including a comprehensive approach to sources. Jack Balkin's article Commerce fails to consider the full range of evidence and thereby attributes to the Constitution's Commerce Clause a scope that virtually no one in the Founding Era believed it had.

Commerce, Jack M. Balkin

Michigan Law Review

This Article applies the method of text and principle to an important problem in constitutional interpretation: the constitutional legitimacy of the modem regulatory state and its expansive definition of federal commerce power Some originalists argue that the modem state cannot be justified, while others accept existing precedents as a "pragmatic exception" to originalism. Nonoriginalists, in turn, point to these difficulties as a refutation of originalist premises. Contemporary originalist readings have tended to view the commerce power through modem eyes. Originalists defending narrow readings offederal power have identified "commerce" with the trade of commodities; originalists defending broad readings of federal power …

Public Consensus As Constitutional Authority, Richard A. Primus

Articles

Barry Friedman's new book The Will of the People attempts to dissolve constitutional law's countermajoritariand ifficulty by showing that, in practice,t he Supreme Court does only what the public will tolerate. His account succeeds if "the countermajoritarian difficulty" refers to the threat that courts will run the country in ways that contravene majority preference, but not if the "the countermajoritarian difficulty" refers to the need to explain the legitimate sources of judicial authority in cases where decisions do contravene majority preference. Friedman's book does not pursue the second possibility, and may suggest that doing so is unimportant, in part because …

Constitutional Interpretation And Judicial Review: A Case Of The Tail Wagging The Dog, Michael Halley

Michigan Law Review First Impressions

A response to John F. Manning, Federalism and the Generality Problem in Constitutional Interpretation, 122 Harv. L. Rev. 2003 (2009). Professor John Manning's analysis of the Supreme Court's recent federalism decisions works as a platform to further the cause of textualism. His argument fails to persuade, however, because the textualism he says the Court should embrace in federalism cases is antithetical to the atextual nature of the Court's jurisdiction to adjudicate the constitutionality of legislation. Manning prefaces his work by telling readers that his analysis is not an end in itself. His aim, rather, is to "use the methodology" the …

Limits Of Interpretivism, Richard A. Primus

Articles

Justice Stephen Markman sits on the Supreme Court of my home state of Michigan. In that capacity, he says, he is involved in a struggle between two kinds of judging. On one side are judges like him. They follow the rules. On the other side are unconstrained judges who decide cases on the basis of what they think the law ought to be. This picture is relatively simple, and Justice Markman apparently approves of its simplicity. But matters may in fact be a good deal more complex.

When Should Original Meanings Matter?, Richard A. Primus

Articles

Constitutional theory lacks an account of when each of the familiar sources of authority-text, original meaning, precedent, and so on-should be given weight. The dominant tendency is to regard all sources as potentially applicable in every case. In contrast, this Article proposes that each source of authority is pertinent in some categories of cases but not in others, much as a physical tool is appropriate for some but not all kinds of household tasks. The Article then applies this approach to identify the categories of cases in which original meaning is, or is not, a valid factor in constitutional decisionmaking.

Emergency Federalism: Calling On The States In Perilous Times, Adam M. Giuliano

University of Michigan Journal of Law Reform

The attacks of September 11 prompted a historic debate concerning terrorism and domestic emergency response. This ongoing dialogue has driven policy decisions touching upon both liberty and security concerns. Yet despite the enormous effort that has gone into the national response, the role of the sovereign states, and with it federalism, has received comparatively little attention. This Article explores the relevance of federalism within the context of the "War on Terror" and in the aftermath of Hurricane Katrina. Acknowledging that theories of federalism developed elsewhere are insufficient, he outlines a doctrine of 'emergency federalism.' The author argues that the Framers …

Double-Consciousness In Constitutional Adjudication, Richard A. Primus

Articles

Constitutional theorists are familiar with epistemic and consequentialist reasons why judges might allow their decision making to be shaped by strongly held public opinion. The epistemic approach treats public opinion as an expert indicator, while the consequentialistapproach counsels judges to compromise legally correct interpretations so as not to antagonize a hostile public. But there is also a third reason, which we can think ofas constitutive. In limited circumstances, the fact that the public strongly holds a given view can be one of the factors that together constitute the correct answer to a constitutional question. In those circumstances, what the public …

The Glucksberg Renaissance: Substantive Due Process Since Lawrence V. Texas, Brian Hawkins

Michigan Law Review

On their faces, Washington v. Glucksberg and Lawrence v. Texas seem to have little in common. In Glucksberg, the Supreme Court upheld a law prohibiting assisted suicide and rejected a claim that the Constitution protects a "right to die"; in Lawrence, the Court struck down a law prohibiting homosexual sodomy and embraced a claim that the Constitution protects homosexual persons' choices to engage in intimate relationships. Thus, in both subject matter and result, Lawrence and Glucksberg appear far apart. The Lawrence Court, however, faced a peculiar challenge in reaching its decision, and its response to that challenge brings …

Function Over Form: Reviving The Criminal Jury's Historical Role As A Sentencing Body, Chris Kemmitt

University of Michigan Journal of Law Reform

This Article argues that the Supreme Court, as evinced by its recent spate of criminal jury decisions, has abandoned the criminal jury known to the Founders and, in so doing, has severely eroded the protections intended to inhere in the Sixth Amendment jury trial right. It then proposes one potential solution to this problem.

According to the Supreme Court, this recent line of cases has been motivated by the need to preserve the "ancient guarantee" articulated in the Sixth Amendment under a new set of legal circumstances. Unfortunately, the Court misinterprets the ancient guarantee that it is ostensibly attempting to …

The Riddle Of Hiram Revels, Richard A. Primus

Articles

In 1870, a black man named Hiram Revels was named to represent Mississippi in the Senate. Senate Democrats objected to seating him and pointed out that the Constitution specifies that no person may be a senator who has not been a citizen of the United States for at least nine years. Before the ratification of the Fourteenth Amendment in 1868, the Democrats argued, Revels had not been a citizen on account of the Supreme Court's 1857 decision in Dred Scott v. Sandford. Thus, even if Revels were a citizen in 1870, he had held that status for only two years. …

Judicial Power And Mobilizable History, Richard A. Primus

Articles

One contribution that law professors can make to constitutional discourse, I suggest, is the nurturing of new mobilizable histories. A "mobilizable history," as I will use the term, is a narrative, image, or other historical source that is sufficiently well-known to the community of constitutional decisionmakers so as to be able to support a credible argument in the discourse of constitutional law. It draws upon materials that are within the collective memory of constitutional interpreters; indeed, a necessary step in nurturing a new mobilizable history is to introduce new information into that collective memory or to raise the prominence of …

Compromising Liberty: A Structural Critique Of The Sentencing Guidelines, Jackie Gardina

University of Michigan Journal of Law Reform

This Article contends that the federal sentencing guidelines-whether mandatory or discretionary-violate the constitutional separation of powers by impermissibly interfering with a criminal jury's constitutional duty to act as a check against government overreaching. This Article posits that the inclusion of the criminal jury in Article III of the Constitution was intended as an inseparable element of the constitutional system of checks and balances. This Article also submits a proposal for restoring the constitutional balance through the creation of a "guideline jury system" within the current guideline structure. The implementation of a guideline jury system would fill the constitutional void created …

Article 9 Of The Constitution Of Japan And The Use Of Procedural And Substantive Heuristics For Consensus, Mark A. Chinen

Michigan Journal of International Law

This Article’s purpose is to examine the revision debates through the lens of recent scholarship on constitutional decisionmaking to see what lessons might be drawn about constitutionalism in Japan and elsewhere. In Part I, the author discusses Article 9's text and interpretation and focus on three controversies: first, Japan's ability to use force to defend itself and the related issue of the constitutionality of the Japan Self Defense Force (SDF); second, Japan's ability to engage in collective self-defense, which impacts the state's security relationship with the United States under the U.S.-Japan Mutual Security Agreement; and finally, Japan's ability to participate …

Constitutional Purpose And Inter-Clause Conflict: The Constraints Imposed On Congress By The Copyright Clause, Andrew M. Hetherington

Michigan Telecommunications & Technology Law Review

The argument that the preamble of the Copyright Clause provides a strict constraint on congressional intellectual property legislation has met with broad support among legal academics, but it is viewed with some skepticism by the judiciary. The Supreme Court did acknowledge in Eldred that intellectual property legislation must, in at least some sense, promote the progress of science, but stressed that it is for Congress, not the courts, to decide what does and does not promote progress. The Court specifically rejected a "stringent" form of rational basis review for Copyright Clause enactments proposed in Justice Breyer's dissent, noting that the …

...A Rendezvous With Kreplach: Putting The New Deal Court In Context, Richard D. Friedman

Reviews

The Supreme Court of the New Deal era continues to captivate lawyers and historians. Constitutional jurisprudence changed rapidly during the period. Moreover, some of the most significant changes seemed--whatever the reality--to result from pressure imposed in 1937 by President Franklin Roosevelt's plan to pack the Court. The structure of constitutional law that emerged within a few years of Roosevelt's death remains intact in significant respects today.

African Courts, International Law, And Comparative Case Law: Chimera Or Emerging Human Rights Jurisprudence?, Mirna E. Adjami

Michigan Journal of International Law

Though the potential creation of a supranational human rights court has brought international attention to the African human rights system, international law and human rights scholars rarely turn to African examples when studying the domestic application of international human rights norms. This Article seeks to fill that gap by analyzing cases from several Anglophone common law countries in sub-Saharan Africa that invoke international law and comparative case law as interpretive support in their national fundamental rights jurisprudence.

Free-Standing Due Process And Criminal Procedure: The Supreme Court's Search For Interpretive Guidelines, Jerold H. Israel

Articles

When I was first introduced to the constitutional regulation of criminal procedure in the mid-1950s, a single issue dominated the field: To what extent did the due process clause of the Fourteenth Amendment impose upon states the same constitutional restraints that the Fourth, Fifth, Sixth and Eighth Amendments imposed upon the federal government? While those Bill of Rights provisions, as even then construed, imposed a broad range of constitutional restraints upon the federal criminal justice system, the federal system was (and still is) minuscule as compared to the combined systems of the fifty states. With the Bill of Rights provisions …

Establishing A Legitimate Expectation Of Privacy In Clickstream Data, Gavin Skok

Michigan Telecommunications & Technology Law Review

This Article argues that Web users should enjoy a legitimate expectation of privacy in clickstream data. Fourth Amendment jurisprudence as developed over the last half-century does not support an expectation of privacy. However, reference to the history of the Fourth Amendment and the intent of its drafters reveals that government investigation and monitoring of clickstream data is precisely the type of activity the Framers sought to limit. Courts must update outdated methods of expectation of privacy analysis to address the unique challenges posed by the Internet in order to fulfill the Amendment's purpose. Part I provides an overview of the …

Constitutions And Spontaneous Orders: A Response To Professor Mcginnis, Adam C. Pritchard, Todd J. Zywicki

Articles

Professor John McGinnis has written a perceptive and provocative comment on our economic analysis of the role of tradition in constitutional interpretation.1 A brief summary of our areas of agreement and disagreement may help set the stage for this response. It appears that Professor McGinnis substantially agrees with the two central propositions of our article. First, he appears to agree with our definition of efficient traditions as those evolving over long periods of time from decentralized processes.2 Second, he explicitly agrees that Justices Scalia and Souter have adopted sub-optimal models of tradition because they rely on sources that lack the …

Finding The Constitution: An Economic Analysis Of Tradition's Role In Constitutional Interpretation, Adam C. Pritchard, Todd J. Zywicki

Articles

In this Article, Professor Pritchard and Professor Zywicki examine the role of tradition in constitutional interpretation, a topic that has received significant attention in recent years. After outlining the current debate over the use of tradition, the authors discuss the efficiency purposes of constitutionalism--precommitment and the reduction of agency costs--and demonstrate how the use of tradition in constitutional interpretation can serve these purposes. Rejecting both Justice Scalia's majoritarian model, which focuses on legislative sources of tradition, and Justice Souter's common-law model, which focuses on Supreme Court precedent as a source of tradition, the authors propose an alternative model--the "finding model"-- …

Law And Religion In Israel And Iran: How The Integration Of Secular And Spiritual Laws Affects Human Rights And The Potential For Violence, S. I. Strong

Michigan Journal of International Law

Part I of this article provides a brief sketch of the principles of the two majority religions at issue in this discussion and an overview of the history of both Israel and Iran. It explains why each nation has chosen to structure itself as it has and why the imposition of U.S.-style secularism would be an inappropriate method of dealing with the religio-legal conflict in the two societies. Part II compares the fundamental or constitutional laws of the two nations by analyzing the provisions, policies, and practices most influenced by religion. After identifying and analyzing the laws themselves in Part …

South Africa's Amnesty Process: A Viable Route Toward Truth And Reconciliation, Emily H. Mccarthy

Michigan Journal of Race and Law

The road to democracy for South Africa was based on compromise. One of the most significant compromises made by the negotiators was the acceptance of an amnesty process culminating in the passage of the Promotion of National Unity and Reconciliation Act of 1995. The Act grants full indemnity from criminal and civil prosecution to anyone affiliated with a political organization who committed an "act associated with a political objective" and who fully discloses all relevant facts. The purpose of the Act is twofold: to establish the "truth" about the apartheid past and to promote "reconciliation" among South Africans. Unfortunately, such …