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Constitutional interpretation

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Full-Text Articles in Law

Anti-Modalities, David E. Pozen, Adam M. Samaha Feb 2021

Anti-Modalities, David E. Pozen, Adam M. Samaha

Michigan Law Review

Constitutional argument runs on the rails of “modalities.” These are the accepted categories of reasoning used to make claims about the content of supreme law. Some of the modalities, such as ethical and prudential arguments, seem strikingly open ended at first sight. Their contours come into clearer view, however, when we attend to the kinds of claims that are not made by constitutional interpreters—the analytical and rhetorical moves that are familiar in debates over public policy and political morality but are considered out of bounds in debates over constitutional meaning. In this Article, we seek to identify the “anti-modalities ...


The People's Court: On The Intellectual Origins Of American Judicial Power, Ian C. Bartrum Jan 2021

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

Dickinson Law Review

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 ...


Herein Of 'Herein Granted': Why Article I'S Vesting Clause Does Not Support The Doctrine Of Enumerated Powers, Richard A. Primus Sep 2020

Herein Of 'Herein Granted': Why Article I'S Vesting Clause Does Not Support The Doctrine Of Enumerated Powers, Richard A. Primus

Articles

Article I of the United States Constitution begins as follows: “All legislative Powers herein granted shall be vested in a Congress of the United States[.]” That text is sometimes called the Vesting Clause, or, more precisely, the Article I Vesting Clause, because Articles II and III also begin with Vesting Clauses. And there is a feature of those three clauses, when compared, to which twenty-first century constitutional lawyers commonly attribute considerable significance. Although the three Clauses are similar in other ways, the syntax of Article I’s Vesting Clause is not fully parallel to that of the other two. The ...


Thin And Thick Conceptions Of The Nineteenth Amendment Right To Vote And Congress's Power To Enforce It, Richard L. Hasen, Leah M. Litman Jul 2020

Thin And Thick Conceptions Of The Nineteenth Amendment Right To Vote And Congress's Power To Enforce It, Richard L. Hasen, Leah M. Litman

Articles

This Article, prepared for a Georgetown Law Journal symposium on the Nineteenth Amendment’s one-hundred-year anniversary, explores and defends a “thick” conception of the Nineteenth Amendment right to vote and Congress’s power to enforce it. A “thin” conception of the Nineteenth Amendment maintains that the Amendment merely prohibits states from enacting laws that prohibit women from voting once the state decides to hold an election. And a “thin” conception of Congress’s power to enforce the Nineteenth Amendment maintains that Congress may only supply remedies for official acts that violate the Amendment’s substantive guarantees. This Article argues the ...


Resolving Alj Removal Protections Problem Following Lucia, Spencer Davenport May 2020

Resolving Alj Removal Protections Problem Following Lucia, Spencer Davenport

University of Michigan Journal of Law Reform

When the Supreme Court decided Lucia v. SEC and held that administrative law judges (ALJs) are Officers under the Constitution, the Court opened a flood of constitutional issues around the status of ALJs and related government positions. One central issue relates to ALJs’ removal protections. ALJs currently have two layers of protection between them and the President. In an earlier Supreme Court decision, the Court held that two layers of tenure protection between an “Officer of the United States” and the President was unconstitutional as it deprived the President the power to hold his officers accountable. As impartial adjudicators, ALJs ...


Coin, Currency, And Constitution: Reconsidering The National Bank Precedent, David S. Schwartz May 2020

Coin, Currency, And Constitution: Reconsidering The National Bank Precedent, David S. Schwartz

Michigan Law Review

Review of Eric Lomazoff's Reconstructing the National Bank Controversy: Politics and Law in the Early American Republic.


Translating The Constitution, Jack M. Balkin May 2020

Translating The Constitution, Jack M. Balkin

Michigan Law Review

Review of Lawrence Lessig's Fidelity and Constraint: How the Supreme Court Has Read the American Constitution.


Fixing America's Founding, Maeve Glass May 2020

Fixing America's Founding, Maeve Glass

Michigan Law Review

Review of Jonathan Gienapp's The Second Creation: Fixing the American Constitution in the Founding Era.


Segregation In The Galleries: A Reconsideration, Richard Primus Feb 2020

Segregation In The Galleries: A Reconsideration, Richard Primus

Michigan Law Review Online

When constitutional lawyers talk about the original meaning of the Fourteenth Amendment as applied to questions of race, they often men-tion that the spectators’ galleries in Congress were racially segregated when Congress debated the Amendment.1 If the Thirty-Ninth Congress practiced racial segregation, the thinking goes, then it probably did not mean to prohibit racial segregation.2 As an argument about constitutional interpretation, this line of thinking has both strengths and weaknesses. But this brief Essay is not about the interpretive consequences, if any, of segregation in the congressional galleries during the 1860s. It is about the factual claim that ...


How Do Judges Decide School Finance Cases?, Ethan Hutt, Daniel Klasik, Aaron Tang Jan 2020

How Do Judges Decide School Finance Cases?, Ethan Hutt, Daniel Klasik, Aaron Tang

Washington University Law Review

There is an old riddle that asks, what do constitutional school funding lawsuits and birds have in common?

The answer: every state has its own. Yet while almost every state has experienced hotly-contested school funding litigation, the results of these suits have been nearly impossible to predict. Scholars and advocates have struggled for decades to explain why some state courts rule for plaintiff school children—often resulting in billions of dollars in additional school spending—while others do not.

If there is rough agreement on anything, it is that “the law” is not the answer: variation in the strength of ...


The Traditions Of American Constitutional Law, Marc O. Degirolami Jan 2020

The Traditions Of American Constitutional Law, Marc O. Degirolami

Faculty Publications

This Article identifies a new method of constitutional interpretation: the use of tradition as constitutive of constitutional meaning. It studies what the Supreme Court means by invoking tradition and whether what it means remains constant across the document and over time. Traditionalist interpretation is pervasive, consistent, and recurrent across the Court’s constitutional doctrine. So, too, are criticisms of traditionalist interpretation. There are also more immediate reasons to study the role of tradition in constitutional interpretation. The Court’s two newest members, Justices Neil Gorsuch and Brett Kavanaugh, have indicated that tradition informs their understanding of constitutional meaning. The study ...


Article Ii Vests Executive Power, Not The Royal Prerogative, Julian Davis Mortenson Jun 2019

Article Ii Vests Executive Power, Not The Royal Prerogative, Julian Davis Mortenson

Articles

Article II of the United States Constitution vests “the executive power” in the President. For more than two hundred years, advocates of presidential power have claimed that this phrase was originally understood to include a bundle of national security and foreign affairs authorities. Their efforts have been highly successful. Among constitutional originalists, this so-called “Vesting Clause Thesis” is now conventional wisdom. But it is also demonstrably wrong. Based on an exhaustive review of the eighteenth-century bookshelf, this Article shows that the ordinary meaning of “executive power” referred unambiguously to a single, discrete, and potent authority: the power to execute law ...


Originalism And A Forgotten Conflict Over Martial Law, Bernadette Meyler Apr 2019

Originalism And A Forgotten Conflict Over Martial Law, Bernadette Meyler

Northwestern University Law Review

This Symposium Essay asks what a largely forgotten conflict over habeas corpus and martial law in mid-eighteenth-century New York can tell us about originalist methods of constitutional interpretation. The episode, which involved Abraham Yates, Jr.—later a prominent Antifederalist—as well as Lord Loudoun, the commander of the British forces in America, and New York Acting Governor James De Lancey, furnishes insights into debates about martial law prior to the Founding and indicates that they may have bearing on originalist interpretations of the Suspension Clause. It also demonstrates how the British imperial context in which the American colonies were situated ...


Constructing The Original Scope Of Constitutional Rights, Nathan Chapman Jan 2019

Constructing The Original Scope Of Constitutional Rights, Nathan Chapman

Scholarly Works

In this solicited response to Ingrid Wuerth's "The Due Process and Other Constitutional Rights of Foreign Nations," I explain and justify Wuerth's methodology for constructing the original scope of constitutional rights. The original understanding of the Constitution, based on text and historical context, is a universally acknowledged part of constitutional law today. The original scope of constitutional rights — who was entitled to them, where they extended, and so on — is a particularly difficult question that requires a measure of construction based on the entire historical context. Wuerth rightly proceeds one right at a time with a careful consideration ...


Article Ii And Antidiscrimination Norms, Aziz Z. Huq Jan 2019

Article Ii And Antidiscrimination Norms, Aziz Z. Huq

Michigan Law Review

The Supreme Court’s opinion in Trump v. Hawaii validated a prohibition on entry to the United States from several Muslim-majority countries and at the same time repudiated a longstanding precedent associated with the Japanese American internment of World War II. This Article closely analyzes the relationship of these twin rulings. It uses their dichotomous valences as a lens on the legal scope for discriminatory action by the federal executive. Parsing the various ways in which the internment of the 1940s and the 2017 exclusion order can be reconciled, the Article identifies a tension between the Court’s two holdings ...


The Elephant Problem, Richard Primus Jan 2019

The Elephant Problem, Richard Primus

Reviews

In their new book, "A Great Power of Attorney": Understanding the Fiduciary Constitution, Gary Lawson and Guy Seidman argue that, as a matter of original meaning, the Constitution should be understood as analogous to a power of attorney, that interpretive devices applicable to powers of attorney should therefore be used in constitutional interpretation, and that interpreting the Constitution that way would produce results congenial to modern libertarian preferences, such as the unconstitutionality of the Affordable Care Act and the invalidity, on nondelegation grounds, of much of the federal administrative state. But the book fails to carry any of its central ...


Animus And Its Alternatives: Constitutional Principle And Judicial Prudence, Daniel O. Conkle Jan 2019

Animus And Its Alternatives: Constitutional Principle And Judicial Prudence, Daniel O. Conkle

Articles by Maurer Faculty

In a series of cases addressing sexual orientation and other issues, the Supreme Court has ruled that animus-based lawmaking is constitutionally impermissible. The Court treats animus as an independent and sufficient basis for invalidation. Moreover, it appears to regard animus as a doctrine of first resort, to be utilized even when an alternative constitutional rationale, such as declaring a challenged classification suspect or quasi-suspect, would readily justify the same result. Responding especially to Professor William D. Araiza’s elaboration and defense of the Court’s animus doctrine, I agree that this doctrine is sound, indeed compelling, as a matter of ...


What Members Of Congress Say About The Supreme Court And Why It Matters, Carolyn Shapiro Aug 2018

What Members Of Congress Say About The Supreme Court And Why It Matters, Carolyn Shapiro

Chicago-Kent Law Review

Republican and Democratic senators took strikingly different approaches to Justice Neil Gorsuch’s confirmation hearing. Republicans focused on judicial process—what judges are supposed to do, how they are constrained, and the significance of the constitutional separation of powers—evoking rhetoric long used by the political right. Democrats, by contrast, focused primarily on case outcomes, complaining, for example, that Gorsuch favored “the big guy” over “the little guy” in cases he decided as a judge on the Tenth Circuit. This Article critiques the Democrats’ failure to discuss judicial process and to promote their own affirmative vision of the judiciary and ...


The Cunning Of Reason: Michael Klarman's The Framers' Coup, Charles Fried Apr 2018

The Cunning Of Reason: Michael Klarman's The Framers' Coup, Charles Fried

Michigan Law Review

A review of Michael J. Klarman, The Framers' Coup: The Making of the United States Constitution.


A Matter Of Interpretation: Federal Courts And The Law, Charles R. Priest Mar 2018

A Matter Of Interpretation: Federal Courts And The Law, Charles R. Priest

Maine Law Review

Justice Scalia's engaging essay, “Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws,” and the four comments it provokes, should provide lawyers, judges, and other lawmakers with an interesting evening. Instead of presenting a theoretical view of the role of the federal courts in interpretation, Justice Scalia sketches out a case for “textualism.” “Textualism” is one of several currently contending methods of interpreting statutes and the United States Constitution, and is currently popular among federal judges who see their role as restricting government's powers to those expressly stated ...


Mostly Settled, But Right For Now, Corinna Lain Jan 2018

Mostly Settled, But Right For Now, Corinna Lain

Law Faculty Publications

Randy Kozel’s book, Settled Versus Right: A Theory of Precedent, is a laudable effort to make the law more stable, more cohesive, more impersonal — an effort to show that the law can endure even as Justices come and go. The core of his contribution is a proposed doctrine of stare decisis that disentangles deference to precedent from the interpretive methodologies that led to the precedent in the first place, and that so often determine the amount of deference a precedent gets. As a purely doctrinal project, Settled Versus Right naturally assumes that if we fix the doctrine, we’ll ...


The Constitutional Law Of Incarceration, Reconfigured, Margo Schlanger Jan 2018

The Constitutional Law Of Incarceration, Reconfigured, Margo Schlanger

Articles

On any given day, about 2.2 million people are confined in U.S. jails and prisons—nearly 0.9% of American men are in prison, and another 0.4% are in jail. This year, 9 or 10 million people will spend time in our prisons and jails; about 5000 of them will die there. A decade into a frustratingly gradual decline in incarceration numbers, the statistics have grown familiar: We have 4.4% of the world’s population but over 20% of its prisoners. Our incarceration rate is 57% higher than Russia’s (our closest major country rival in ...


Still Living After Fifty Years: A Census Of Judicial Review Under The Pennsylvania Constitution Of 1968, Seth F. Kreimer Jan 2018

Still Living After Fifty Years: A Census Of Judicial Review Under The Pennsylvania Constitution Of 1968, Seth F. Kreimer

Faculty Scholarship at Penn Law

The year 2018 marked the fiftieth anniversary of the Pennsylvania Constitution of 1968. The time seems ripe, therefore, to explore the Pennsylvania Supreme Court’s exercise of judicial review under the 1968 Pennsylvania Constitution. This Article constitutes the first such comprehensive exploration.

The Article begins with an historical overview of the evolution of the Pennsylvania Constitution, culminating in the Constitution of 1968. It then presents a census of the 372 cases in which the Pennsylvania Supreme Court has vindicated distinctive Pennsylvania Constitutional rights under the Constitution of 1968.

Analysis of these cases leads to three conclusions:

1. Exercise of independent ...


Comparative Approaches To Constitutional History, Jamal Greene, Yvonne Tew Jan 2018

Comparative Approaches To Constitutional History, Jamal Greene, Yvonne Tew

Faculty Scholarship

An historical approach to constitutional interpretation draws upon original intentions or understandings of the meaning or application of a constitutional provision. Comparing the ways in which courts in different jurisdictions use history is a complex exercise. In recent years, academic and judicial discussion of “originalism” has obscured both the global prevalence of resorting to historical materials as an interpretive resource and the impressive diversity of approaches courts may take to deploying those materials. This chapter seeks, in Section B, to develop a basic taxonomy of historical approaches. Section C explores in greater depth the practices of eight jurisdictions with constitutional ...


Contra Scalia, Thomas, And Gorsuch: Originalists Should Adopt A Living Constitution, R. Randall Kelso Nov 2017

Contra Scalia, Thomas, And Gorsuch: Originalists Should Adopt A Living Constitution, R. Randall Kelso

University of Miami Law Review

Two main approaches appear in the popular literature on constitutional interpretation: originalism and non-originalism. An originalist approach refers back to some aspect of the framers’ and ratifiers’ intent or action to justify a decision. A non-originalist approach bases the goal of constitutional interpretation in part on consideration of some justification independent of the framers’ and ratifiers’ intent or action.

What is often unappreciated in addressing the question of whether to adopt an originalist or non-originalist approach to constitutional interpretation is the complication that emerges if one concludes that the framing and ratifying generation believed in the model of a living ...


Competing Accounts Of Interpretation And Practical Reasoning In The Debate Over Originalism, André Leduc Nov 2017

Competing Accounts Of Interpretation And Practical Reasoning In The Debate Over Originalism, André Leduc

The University of New Hampshire Law Review

This article explores two assumptions about constitutional law and the form of practical reasoning inherent in constitutional argument and decision that have shaped the debate over originalism. The first assumption—adopted by originalists—is that constitutional reasoning is a formalistic process. Originalism’s critics tacitly describe a very different and less formalistic model. The second assumption—shared by originalists and most of its critics alike—is that the central task of constitutional decision is to interpret the Constitution. Both of these assumptions are wrong. Constitutional argument is not, and cannot be, reduced to the formal model of reasoning tacitly employed ...


Reverse Political Process Theory, Aaron Tang Oct 2017

Reverse Political Process Theory, Aaron Tang

Vanderbilt Law Review

Despite occasional suggestions to the contrary, the Supreme Court has long since stopped interpreting the Constitution to afford special protection to certain groups on the ground that they are powerless to defend their own interests in the political process. From a series of decisions reviewing laws that burden whites under the same strict scrutiny as laws that burden racial minorities, to the more recent same-sex marriage decision based principally on the fundamental nature of marriage (rather than the political status of gays and lesbians), it is now an uncontroversial observation that when it comes to applying the open-textured provisions of ...


The Gibbons Fallacy, Richard A. Primus Mar 2017

The Gibbons Fallacy, Richard A. Primus

Articles

In Gibbons v. Ogden, Chief Justice John Marshall famously wrote that "the enumeration presupposes something not enumerated." Modern courts use that phrase to mean that the Constitutions enumeration of congressional powers indicates that those powers are, as a whole, less than a grant of general legislative authority. But Marshall wasn't saying that. He wasn't talking about the Constitution's overall enumeration of congressional powers at all. He was writing about a different enumeration - the enumeration of three classes of commerce within the Commerce Clause. And Marshall's analysis of the Commerce Clause in Gibbons does not imply that ...


The Constitutional Ratchet Effect, Kevin M. Stack Jan 2017

The Constitutional Ratchet Effect, Kevin M. Stack

Vanderbilt Law School Faculty Publications

No abstract provided.


Conservatives And The Court, Robert F. Nagel Jan 2017

Conservatives And The Court, Robert F. Nagel

Articles

No abstract provided.