Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 3 of 3
Full-Text Articles in Law
Defending Korematsu?: Reflections On Civil Liberties In Wartime, Mark V. Tushnet
Defending Korematsu?: Reflections On Civil Liberties In Wartime, Mark V. Tushnet
Georgetown Law Faculty Publications and Other Works
According to Justice William J. Brennan, "After each perceived security crisis ended, the United States has remorsefully realized that the abrogation of civil liberties was unnecessary. But it has proven unable to prevent itself from repeating the error when the next crisis came along." This Article examines that observation, using Korematsu as a vehicle for refining the claim and, I think, reducing it to a more defensible one. Part I opens my discussion, providing some qualifications to the broad claim about threats to civil liberties in wartime. Part II then deals with Korematsu and other historical examples of civil liberties …
Alarmism Versus Moderation In Responding To The Rehnquist Court, Mark V. Tushnet
Alarmism Versus Moderation In Responding To The Rehnquist Court, Mark V. Tushnet
Georgetown Law Faculty Publications and Other Works
I begin in Part I by offering a description of the Supreme Court's recent decisions as a less substantial repudiation of prior principles than many think them to be, and as leaving Congress with the means to achieve a quite substantial proportion of the policy goals it pursued in the statutes the Court invalidated. Part II explains why Congress is unlikely to do so, in light of our apparent commitment to divided government, and parties that are organized around distinctive ideologies because of divided government. Part III turns to the prospect for continued policy transformation, identifying the conditions under which …
Alternative Forms Of Judicial Review, Mark V. Tushnet
Alternative Forms Of Judicial Review, Mark V. Tushnet
Georgetown Law Faculty Publications and Other Works
The invention in the late twentieth century of what I call weak-form systems of judicial review provides us with the chance to see in a new light some traditional debates within U.S. constitutional law and theory, which are predicated on the fact that the United States has strong-form judicial review. Strong- and weak-form systems operate on the level of constitutional design, in the sense that their characteristics are specified in constitutional documents or in deep-rooted constitutional traditions. After sketching the differences between strong- and weak-form systems, I turn to design features that operate at the next lower level. Here legislatures …