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Evaluating Congressional Constitutional Interpretation: Some Criteria And Two Informal Case Studies, Mark V. Tushnet
Evaluating Congressional Constitutional Interpretation: Some Criteria And Two Informal Case Studies, Mark V. Tushnet
Georgetown Law Faculty Publications and Other Works
I begin this Essay by identifying some problems with conducting an empirical inquiry into Congress's performance in constitutional matters. I argue that there is actually only a small set of issues for which we have a reasonably clean record to evaluate. With the problems I have identified in the background, I then examine some aspects of Congress's performance in the impeachment of President William J. Clinton and, more briefly, some aspects of its response to a presidential military initiative taken without formal prior congressional endorsement. I conclude that Congress's performance in the impeachment, however flawed, was reasonably good, and that …
Legislative Constitutional Interpretation, Neal K. Katyal
Legislative Constitutional Interpretation, Neal K. Katyal
Georgetown Law Faculty Publications and Other Works
This is an Essay about "the how" of constitutional interpretation. Much attention has been devoted to the question of how the Constitution is interpreted in courts. Rather little attention has been devoted to the question of how the Constitution is interpreted elsewhere in the government. The Constitution tells us that Congress, the President, and state legislators and courts must adhere to its terms, but it does not tell us how much interpretive power each actor should have, nor does it prescribe rules for each actor to use when interpreting the text. I argue that constitutional interpretation by Congress is, and …
The Original Meaning Of The Commerce Clause, Randy E. Barnett
The Original Meaning Of The Commerce Clause, Randy E. Barnett
Georgetown Law Faculty Publications and Other Works
The U& Supreme Court, in recent cases; has attempted to define limits on the Congress's power to regulate commerce among the several states. While Justice Thomas has maintained that the original meaning of "commerce" was limited to the "trade and exchange" of goods and transportation for this purpose, some have argued that he is mistaken and that "commerce" originally included any "gainful activity." Having examined every appearance of the word "commerce"in the records of the Constitutional Convention, the ratification debates and the Federalist Papers, Professor Barnett finds no surviving example of this term being used in this broader sense. In …