Law Commons^™

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 …

The Puzzling Parameters Of The Foreign Law Debate, Vlad F. Perju

Vlad Perju

No abstract provided.

Stare Decisis And Constitutional Text, Jonathan F. Mitchell

Michigan Law Review

Almost everyone acknowledges that stare decisis should play a significant role when the Supreme Court of the United States resolves constitutional cases. Yet the academic and judicial rationales for this practice tend to rely on naked consequentialist considerations, and make only passing efforts to square the Court's stare decisis doctrines with the language of the Constitution. This Article offers a qualified defense of constitutional stare decisis that rests exclusively on constitutional text. It aims to broaden the overlapping consensus of interpretive theories that can support a role for constitutional stare decisis, but to do this it must narrow the circumstances …

Assessing The State Of The State Constitutionalism, Jim Rossi

Michigan Law Review

Robert Williams's The Law of American State Constitutions is an impressive career accomplishment for one of the leading academic lawyers writing on state constitutions. Given the need for a comprehensive, treatise-like treatment of state constitutions that transcends individual jurisdictions, Williams's book will almost certainly become the go-to treatise for the next generation of state constitutional law practitioners and scholars. The U.S. Constitution has a grip on how the American legal mind approaches issues in American constitutionalism, but an important recurring theme in Williams's work (as well as that of others) is how state constitutions present unique interpretive challenges. More than …

Foreign Law As Legislative Fact In Constitutional Cases, A. Christopher Bryant

Faculty Articles and Other Publications

Do we really need another law review article about foreign law in constitutional interpretation? In fact, we do. In the vast literature on the subject, a fundamental point has received scant attention. In the recent rulings that have stoked the present controversy, the Supreme Court has employed foreign law not as law, but rather merely as evidence of a legislative fact made relevant by domestic constitutional law. Commentators, however, have largely directed their attention to the merits of a genuine constitutional comparativism in which foreign law serves as a model for the creation of domestic constitutional doctrine. Many commentators have …

What If Slaughter-House Had Been Decided Differently?, Kermit Roosevelt Iii

All Faculty Scholarship

In The Slaugherhouse Cases, the Supreme Court gutted the Privileges or Immunities Clause of the Fourteenth Amendment. Though academics continue to argue that Slaughterhouse was wrongly decided and should be overruled, the practical consequences of doing so might not be enormous. The constitutional rights the dissenters found in the Privileges or Immunities Clause are part of our current law anyway, through the Due Process and Equal Protection Clauses. But this does not mean that Slaughterhouse cost us nothing. This article explores how our law might be different had Slaughterhouse been decided differently. Rather than taking up the role that Privileges …

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 …

I Am Textualism , Stephen Durden

Cleveland State Law Review

Until every person seeking to interpret the Constitution recognizes that constitutional interpretation is a quintessentially human endeavor, based on human assumptions and human reasoning, I will remain to protect those who seek to hide their predilections, their personal choices. I will continue to change as time passes. My form will continue to change to meet the needs of those who seek my cloak of objectivity and seek to redefine and improve me. I am a human invention created to pretend that constitutional interpretation is not a human endeavor. I am what each disciple wants. I am what each disciple needs. …

Two Kinds Of Plain Meaning, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

Is plain meaning so plain? This is not meant to be a philosophical question, but one deserving serious legal analysis. The plain-meaning rule claims to provide certainty and narrow statutes' domains. The author agrees with, as a relative claim, comparing plain meaning with purposivism. She does not agree that plain-meaning analysis is as easy as its proponents suggest. In this piece, the author teases out two very different ideas of plain meaning--ordinary/popular meaning and expansive/legalist meaning--suggesting that doctrinal analysis requires more than plain-meaning simpliciter. Perhaps more importantly, she argues that plain meaning, as legalist meaning, can quite …

Interpretation And Construction, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In recent years, it has become apparent that there is a difference between (a) discovering the semantic meaning of the words in the text of the Constitution, and (b) putting that meaning into effect by applying it in particular cases and controversies. To capture this difference, following the lead of political science professor Keith Whittington, legal scholars are increasingly distinguishing between the activities of “interpretation” and “construction.” Although the Supreme Court unavoidably engages in both activities, it is useful to keep these categories separate. For one thing, if originalism is a theory of interpretation, then it may be of limited …

Human Dignity In The Roberts Court: A Story Of Inchoate Institutions, Autonomous Individuals, And The Reluctant Recognition Of A Right, Erin Daly

Erin Daly

Throughout its history, the Supreme Court has assumed that dignity is relevant to constitutional interpretation, though it has rarely considered exactly how. In the post-war years, the Court (like its counterparts around the world) found that human dignity underlay many individual rights, and in the 1990s, the Court's federalism jurisprudence found that the dignity of states immunized them from most lawsuits in both state and federal courts. This article examines the Court's past references to dignity and argues that the conception of dignity that is evoked in the federalism cases -- which focus, at root, on the autonomy of the …

Against Constitutional Mainstreaming, Bertrall L. Ross

Bertrall L Ross

Courts interpret statutes in hard cases. Statutes are frequently ambiguous, and an enacting legislature cannot foresee all future applications of a statute. The Supreme Court in these cases often chooses statutory interpretations that privilege the values that it has emphasized in its recent constitutional jurisprudence. In doing so, the Court rejects alternative interpretations that are more consistent with the values embodied in more recently enacted statutes. This is constitutional mainstreaming—an interpretive practice that molds statutes toward the Court’s own preferred values and away from values favored by legislative majorities.

In addition to providing a novel descriptive framework for what the …

When Originalism Attacks: How Justice Scalia's Resort To Original Expected Application In Crawford V. Washington Came Back To Bite Him In Michigan V. Bryant (Forthcoming In 59 Drake L Rev ___ (Symposium Issue)(Summer 2011)), Brendan T. Beery

Brendan T Beery