Law Commons^™

When The Text Runs Out: The Role Of The Court In Constitutional Construction, Jack Tsen-Ta Lee

Research Collection Yong Pung How School Of Law

Constitutions in Westminster-style legal systems in Asia such as India, Malaysia and Singapore feature bills of rights with provisions phrased at a high level of abstraction. As a consequence, at some stage a particular constitutional text ‘runs out’ and ceases to provide a court with substantive guidance as to how fundamental liberties should be applied to specific factual scenarios. Nonetheless, as it remains the court’s duty to understand the implications of the constitutional text in order to determine the dispute before it, the judge must necessarily engage in constitutional construction. This may be described as the process of articulating rules …

The Text Through Time, Jack Tsen-Ta Lee

Research Collection Yong Pung How School Of Law

The text of a written constitution or bill of rights is prone to ‘drift’ or ‘slippage’ in the meanings of terms. Even if such meanings have not altered over time, because of changes in attitudes and values there may be disagreement with the text’s framers as to the scenarios that are covered or not covered by terms. This article submits that the distinction between the connotation and denotation of a term that has been applied in Australian jurisprudence is useful for determining the meaning of the text through time. The connotation of a term is the generally unchanging bundle of …

Taking Responsibilities As Well As Rights Seriously, James E. Fleming

Faculty Scholarship

In his first book, Ronald Dworkin famously called for “taking rights seriously” by treating them as “trumps” over considerations of utility or the general welfare.1 Taking Rights Seriously (along with other works) provoked calls for taking responsibilities as well as (or instead of) rights seriously, or for engaging in “responsibility talk,” not just “rights talk.”2 In Life’s Dominion, Dworkin himself got on the responsibility bandwagon in justifying the right to procreative autonomy and the right to die.3 He countenanced that government may encourage women to take the decision whether to have an abortion responsibly, so long as it does not …

The Constitutional Interpretation/Construction Distinction: A Useful Fiction, Laura A. Cisneros

Publications

Part I briefly describes the interpretation/construction distinction as an artificial construct - a fiction." The many commentaries on the subject encompass such a wide range of positions that the distinction, to the extent it truly exists at all, does so in the eye of each individual beholder. In Part II, I argue that the distinction, even if understood as a fiction, is nevertheless relevant because it can be used to bridge the expanse between originalist and nonoriginalist (or, if one prefers, between "strong" and "weak" originalist) theories of American constitutional interpretation. Put another way, the fiction is useful. In Part …

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 …

A Personal Note, Debra A. Livingston

Faculty Scholarship

It's a pleasure to introduce this issue honoring Columbia's most lovable curmudgeon. What can I say about the Harlan Fiske Stone Professor of Law? I should acknowledge, at the start, Henry's profound intellectual contribution to Columbia and to the law. There are not many of us who can say, with justification, that we've written the Greatest Hits of Public Law Scholarship over the course of our careers. And few of us have made individual contributions that equal "Constitutional Common Law," "Marbury and the Administrative State," "We the People[s]," "Stare Decisis," or "The Constitution Goes to Harvard." Henry is unusual among …

Commandeering The People: Why The Individual Health Insurance Mandate Is Unconstitutional, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

The “Patient Protection and Affordable Care Act” includes what is called an “individual responsibility requirement” or mandate that all persons buy health insurance from a private company and a separate “penalty” enforcing this requirement. In this paper, I do not critique the individual mandate on originalist grounds. Instead, I explain why the individual mandate is unconstitutional under the existing doctrine by which the Supreme Court construes the Commerce and Necessary and Proper Clauses and the tax power. There are three principal claims.

First (Part II), since the New Deal, the Supreme Court has developed a doctrine allowing the regulation of …

The Right To Bear Arms: A Uniquely American Entitlement, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

In District of Columbia v. Heller the Supreme Court held that individuals have a constitutional right to own firearms, notably to keep a loaded handgun at home for self-protection. The historic shift announced by Heller was the recognition of a personal right, rather than a collective right tied to state militias. In McDonald v. Chicago, the Supreme Court – in a familiar 5-4 ideological split – held that the 2nd Amendment applies not only to the federal government, but also to state and local gun control laws. In his dissent, Justice Stevens predicted that “the consequences could prove far more …