Law Commons^™

The New Deal ‘Constitutional Revolution’ As An Historical Problem, Edward A. Purcell Jr.

Articles & Chapters

No abstract provided.

Judicial Activism: The Good, The Bad, And The Ugly, Arthur D. Hellman

Articles

No matter how judges are selected, sooner or later some unfortunate candidate will be labeled a "judicial activist." One has to wonder: Does the term have any identifiable core meaning? Or is it just an all-purpose term of opprobrium, reflecting whatever brand of judicial behavior the speaker regards as particularly pernicious? Implicit in this question are several important issues about the role of courts in our democratic society.

I take my definition from Judge Richard Posner, who describes activist decisions as those that expand judicial power over other branches of the national government or over state governments. Unlike other uses …

Lincoln, Marshall And The Judicial Role, David F. Forte

Law Faculty Articles and Essays

Abraham Lincoln understood judicial activism. For Lincoln, the paradigm of the unrestrained Supreme Court was the decision in Dred Scott v. Sandford. Lincoln saw the "illegitimacy" of Dred Scott not in that the Supreme Court had overturned an act of Congress. It was, rather, that the Supreme Court, in the guise of making a legal decision, instead made a political decision. Even worse, it was a political decision that sought to redefine the polity in fundamental, constitutional terms. Lincoln's position echoed the most eloquent articulation of judicial review ever made by the Court: in Marbury vs. Madison, Chief Justice Marshall …

A Goldilocks Account Of Judicial Review?, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

According to Professor Christopher Eisgruber, judicial review of the sort embedded in United States constitutional practice is a practical mechanism for implementing the Constitution's commitment to self-government. "The justices ... make a distinctive contribution to representative democracy" because they are "better positioned [than elected officials] to represent the people's convictions about what is right." Judges can articulate "a conception of justice with which Americans in general [can] plausibly identify themselves. "

I will focus here on two themes in Professor Eisgruber's argument. The first theme can be found in many works of constitutional theory - the construction of a strong …