Law Commons^™

The People's Court: On The Intellectual Origins Of American Judicial Power, Ian C. Bartrum

Dickinson Law Review (2017-Present)

This article enters into the modern debate between “consti- tutional departmentalists”—who contend that the executive and legislative branches share constitutional interpretive authority with the courts—and what are sometimes called “judicial supremacists.” After exploring the relevant history of political ideas, I join the modern minority of voices in the latter camp.

This is an intellectual history of two evolving political ideas—popular sovereignty and the separation of powers—which merged in the making of American judicial power, and I argue we can only understand the structural function of judicial review by bringing these ideas together into an integrated whole. Or, put another way, …

Reading Blackstone In The Twenty-First Century And The Twenty-First Century Through Blackstone, Jessie Allen

Book Chapters

If the Supreme Court mythologizes Blackstone, it is equally true that Blackstone himself was engaged in something of a mythmaking project. Far from a neutral reporter, Blackstone has some stories to tell, in particular the story of the hero law. The problems associated with using the Commentaries as a transparent window on eighteenth-century American legal norms, however, do not make Blackstone’s text irrelevant today. The chapter concludes with my brief reading of the Commentaries as a critical mirror of some twenty-first-century legal and social structures. That analysis draws on a long-term project, in which I am making my way through …

[Introduction To] Universal Rights And The Constitution, Stephen A. Simon

Bookshelf

Are constitutional rights based exclusively in uniquely American considerations, or are they based at least in part on principles that transcend the boundaries of any particular country, such as the requirements of freedom or dignity? By viewing constitutional law through the prism of this fundamental question, Universal Rights and the Constitution exposes an overlooked difficulty with opinions rendered by the Supreme Court, namely, an inherent ambiguity about the kinds of arguments that count in constitutional interpretation, which weakens the foundations of our most cherished rights.

Rejecting current debates over constitutional interpretation as flawed, Stephen A. Simon offers an innovative framework …

Christian Scripture And American Scripture: An Instructive Analogy?, Gregory A. Kalscheur S.J.

Gregory A. Kalscheur, S.J.

This Review Essay examines the analogy between biblical interpretation and constitutional interpretation drawn by the eminent Yale church historian Jaroslav Pelikan in his provocative book, Interpreting the Bible and the Constitution. Part I of the Essay focuses on Pelikan’s discussion of the differences and analogies between the Bible and the Constitution that provide the foundation for methodological comparison. Part II of the Essay examines Pelikan’s effort to draw on the work of 19th-century theologian John Henry Newman in order to explore the fundamental problem of the relation between the authority of the original text and the authority of developing doctrine …

Reflective Equilibrium And Constitutional Method: Lessons From John Mccain And The Natural-Born Citizen Clause, Mitchell N. Berman

All Faculty Scholarship

How should we settle on a theory of constitutional interpretation? Take the debate over originalism. How should we determine which of the contending views is correct? Presumably, the correct view of constitutional interpretation must be at least consistent with the truth about other adjacent matters too - like, say, the nature of law. But how should we go about reaching the correct theory of constitutional interpretation in a manner that best ensures this consistency condition is satisfied?

A common approach, especially favored by some subset of contemporary originalists, is fairly described as foundationalist. For example, some originalists argue: that the …

Rethinking "Original Intent", David B. Lyons

Faculty Scholarship

Although Dred Scott v. Sandford is one of the Supreme Court's most controversial decisions, it is not often taught or read. But its approach to constitutional interpretation is by no means outdated, and its historical importance has not diminished. So it seems a good example to consider.