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Full-Text Articles in Law
The Original Meaning Of The Necessary And Proper Clause, Randy E. Barnett
The Original Meaning Of The Necessary And Proper Clause, Randy E. Barnett
Georgetown Law Faculty Publications and Other Works
In this Article, I present the evidence of the original public meaning of the Necessary and Proper Clause." These findings will, of course, be of interest to originalists. But, they should also be of interest to the many constitutional scholars who consider original meaning to be one among several legitimate modes of constitutional analysis, or who consider original meaning the starting point of a process by which this meaning is translated into contemporary terms. By either account, it is important to find the correct original meaning, even if it is not dispositive of today's cases and controversies. I will show …
Self-Historicism, Mark V. Tushnet
Self-Historicism, Mark V. Tushnet
Georgetown Law Faculty Publications and Other Works
Among the contributors to this symposium, I may be the person with the longest acquaintance with Sandy Levinson. I want to begin, therefore, with a recollection of the period of my earliest contacts with Sandy - a recollection that, as I hope to show, has some bearing on some of the aspects of Sandy's work that most interest me . . . I use these examples to introduce an argument connected to Sandy's longstanding interest in historical memory. The casebook of which he is a co-author is organized historically-relentlessly so, I would put it, to the point where I personally …
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 …
New Forms Of Judicial Review And The Persistence Of Rights - And Democracy-Based Worries, Mark V. Tushnet
New Forms Of Judicial Review And The Persistence Of Rights - And Democracy-Based Worries, Mark V. Tushnet
Georgetown Law Faculty Publications and Other Works
Recent developments in judicial review have raised the possibility that the debate over judicial supremacy versus legislative supremacy might be transformed into one about differing institutions to implement judicial review. Rather than posing judicial review against legislative supremacy, the terms of the debate might be over having institutions designed to exercise forms of judicial review that accommodate both legislative supremacy and judicial implementation of constitutional limits. After examining some of these institutional developments in Canada, South Africa, and Great Britain, this Article asks whether these accommodations, which attempt to pursue a middle course, have characteristic instabilities that will in the …
Non-Judicial Review, Mark V. Tushnet
Non-Judicial Review, Mark V. Tushnet
Georgetown Law Faculty Publications and Other Works
Professor Mark Tushnet challenges the view that democratic constitutionalism requires courts to dominate constitutional review. He provides three diverse examples of non-judicial institutions involved in constitutional review and examines the institutional incentives to get the analysis" right." Through these examples, Professor Tushnet argues that non-judicial actors may perform constitutional review that is accurate, effective, and capable of gaining public acceptance. Professor Tushnet recommends that scholars conduct further research into non-judicial review to determine whether ultimately more or less judicial review is necessary in constitutional democracies.
A New Constitutionalism For Liberals?, Mark V. Tushnet
A New Constitutionalism For Liberals?, Mark V. Tushnet
Georgetown Law Faculty Publications and Other Works
It has been apparent for at least a decade that liberal constitutional theory is in deep trouble. Of course there are many versions of liberal constitutional theory, but they have essentially no connection to existing practices of constitutional law, considering as practices of constitutional law all the activities of our institutions of government that implicate - interpret, advance, deal with, whatever - fundamental principle. Instead, liberal constitutional theory's vision of the future is nostalgia for the past. For liberal constitutional theorists the Warren Court, or Justice Brennan, basically got everything right, at least in their approach to identifying constitutional law. …