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Articles 1 - 30 of 66
Full-Text Articles in Law
Living Recipes . . . And Constitutions, John Vlahoplus
Living Recipes . . . And Constitutions, John Vlahoplus
Notre Dame Law Review Reflection
Professor Gary Lawson and Zachary Pohlman assert that we can only follow recipes and by analogy the Constitution by complying with the original public or authorial meaning of the instructions in their texts. Absent an instruction in the recipe’s text authorizing changes, any departure from historical meaning amends the recipe rather than follows it.
This response uses the works of renowned chefs to sketch a competing theory. Following a recipe requires a cook to consider many of the same factors as pluralist and living constitution theories of law including text, history, purpose, current circumstances, personal experience, and individual judgment. Even …
Taking Care With Text: "The Laws" Of The Take Care Clause Do Not Include The Constitution, And There Is No Autonomous Presidential Power Of Constitutional Interpretation, George Mader
Faculty Scholarship
“Departmentalism” posits that each branch of the federal government has an independent power of constitutional interpretation—all branches share the power and need not defer to one another in the exercise of their interpretive powers. As regards the Executive Branch, the textual basis for this interpretive autonomy is that the Take Care Clause requires the President to “take Care that the Laws be faithfully executed” and the Supremacy Clause includes the Constitution in “the supreme Law of the Land.” Therefore, the President is to execute the Constitution as a law. Or so the common argument goes. The presidential oath to “execute …
Media Paratext And Constitutional Interpretation, Benjamin J. Priester
Media Paratext And Constitutional Interpretation, Benjamin J. Priester
Faculty Articles
In the fields of media studies and fan studies, the concept of paratext is an analytical paradigm for understanding how audiences consume and interpret media texts, such as a novel or movie. Amid today's media-rich society, it is all but impossible to encounter a media text in isolation. Rather, we also invariably interact with a wide variety of associated paratexts, from official materials like trailers or marketing to unofficial materials like reviews or fan reactions, which play a role in shaping our interpretation of the core media text. This concept of media paratext provides a compelling analogy for constitutional interpretation. …
Constitutional Structure, Institutional Relationships And Text: Revisiting Charles Black's White Lectures, Richard C. Boldt
Constitutional Structure, Institutional Relationships And Text: Revisiting Charles Black's White Lectures, Richard C. Boldt
Faculty Scholarship
Fundamental questions about constitutional interpretation and meaning invite a close examination of the complicated origins and the subsequent elaboration of the very structure of federalism. The available records of the Proceedings in the Federal Convention make clear that the Framers entertained two approaches to delineating the powers of the central government relative to those retained by the states. The competing approaches, one reliant on a formalist enumeration of permissible powers, the other operating functionally on the basis of a broad dynamic concept of state incompetence and national interest, often are presented as mutually inconsistent narratives. In fact, these two approaches …
The People's Court: On The Intellectual Origins Of American Judicial Power, Ian C. Bartrum
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, …
The Executive Branch Anticanon, Deborah Pearlstein
The Executive Branch Anticanon, Deborah Pearlstein
Articles
Donald Trump’s presidency has given rise to a raft of concerns not just about the wisdom of particular policy decisions but also about the prospect that executive actions might have troubling longer term “precedential” effects. While critics tend to leave undefined what “precedent” in this context means, existing constitutional structures provide multiple mechanisms by which presidential practice can influence future executive branch conduct: judicial actors rely on practice as gloss on constitutional meaning, executive branch officials rely on past practice in guiding institutional norms of behavior, and elected officials outside the executive branch and the people themselves draw on past …
Herein Of 'Herein Granted': Why Article I'S Vesting Clause Does Not Support The Doctrine Of Enumerated Powers, Richard A. Primus
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 Vesting …
Coin, Currency, And Constitution: Reconsidering The National Bank Precedent, David S. Schwartz
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.
Fixing America's Founding, Maeve Glass
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.
Translating The Constitution, Jack M. Balkin
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.
Segregation In The Galleries: A Reconsideration, Richard Primus
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 the galleries …
Article Ii Vests Executive Power, Not The Royal Prerogative, Julian Davis Mortenson
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. …
The Elephant Problem, Richard Primus
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 …
Constructing The Original Scope Of Constitutional Rights, Nathan Chapman
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 …
The Cunning Of Reason: Michael Klarman's The Framers' Coup, Charles Fried
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.
Re-Ordering The First Amendment, Melissa Hart
How Presidents Interpret The Constitution, Harold H. Bruff
How Presidents Interpret The Constitution, Harold H. Bruff
Publications
No abstract provided.
Saving Originalism, Robert J. Delahunty, John Yoo
Saving Originalism, Robert J. Delahunty, John Yoo
John C Yoo
It is sometimes said that biographers cannot help but come to admire, even love, their subjects. And that adage seems to ring true of Professor Amar, the foremost “biographer” of the Constitution. He loves it not just as a governing structure, or a political system, but as a document. He loves the Constitution in the same way that a fan of English literature might treasure Milton’s Paradise Lost or Shakespeare’s Macbeth. He loves the Constitution not just for the good: the separation of powers, federalism, and the Bill of Rights. He also loves it for its nooks and crannies, idiosyncrasies, …
The Original Meaning Of "God": Using The Language Of The Framing Generation To Create A Coherent Establishment Clause Jurisprudence, Michael I. Meyerson
The Original Meaning Of "God": Using The Language Of The Framing Generation To Create A Coherent Establishment Clause Jurisprudence, Michael I. Meyerson
All Faculty Scholarship
The Supreme Court’s attempt to create a standard for evaluating whether the Establishment Clause is violated by religious governmental speech, such as the public display of the Ten Commandments or the Pledge of Allegiance, is a total failure. The Court’s Establishment Clause jurisprudence has been termed “convoluted,” “a muddled mess,” and “a polite lie.” Unwilling to either allow all governmental religious speech or ban it entirely, the Court is in need of a coherent standard for distinguishing the permissible from the unconstitutional. Thus far, no Justice has offered such a standard.
A careful reading of the history of the framing …
Saving Originalism, Robert J. Delahunty, John Yoo
Saving Originalism, Robert J. Delahunty, John Yoo
Michigan Law Review
It is sometimes said that biographers cannot help but come to admire, even love, their subjects. And that adage seems to ring true of Professor Amar, the foremost “biographer” of the Constitution. He loves it not just as a governing structure, or a political system, but as a document. He loves the Constitution in the same way that a fan of English literature might treasure Milton’s Paradise Lost or Shakespeare’s Macbeth. He loves the Constitution not just for the good: the separation of powers, federalism, and the Bill of Rights. He also loves it for its nooks and crannies, idiosyncrasies, …
A Nonoriginalist Perspective On The Lessons Of History, Michael C. Dorf
A Nonoriginalist Perspective On The Lessons Of History, Michael C. Dorf
Michael C. Dorf
No abstract provided.
From Commonwealth To Constitutional Limitations: Thomas Cooley's Michigan, 1805-1886, Robert Allan Olender
From Commonwealth To Constitutional Limitations: Thomas Cooley's Michigan, 1805-1886, Robert Allan Olender
SJD Dissertations
In response to what he perceived as the challenges associated with republican governance in the later portions of the nineteenth century, Michigan’s Thomas McIntyre Cooley penned his treatise concerning constitutional limitations on legislative power. In it, Cooley offered a vision of government where courts would check government power and would raise constitutional barriers against the impact of improper influences on legislators. As a student of history, Cooley grounded his beliefs and doctrines in experience, not philosophical reflections. Believing that “the fruits of speculative genius in government are of little value,” Cooley submitted that governing structures and law “must be the …
Reading Blackstone In The Twenty-First Century And The Twenty-First Century Through Blackstone, Jessie Allen
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 …
J. Skelly Wright And The Limits Of Liberalism, Louis Michael Seidman
J. Skelly Wright And The Limits Of Liberalism, Louis Michael Seidman
Georgetown Law Faculty Publications and Other Works
This essay, written for a symposium on the life and work of United States Court of Appeals Judge J. Skelly Wright, makes four points. First, Judge Wright was an important participant in the liberal legal tradition. The tradition sought to liberate law from arid formalism and to use it as a technique for progressive reform. However, legal liberals also believed that there were limits on what judges could do–-limits rooted in both its liberalism and its legalism. Second, Wright occupied a position on the left fringe of the liberal legal tradition, and he therefore devoted much of his career to …
The Promises Of Freedom: The Contemporary Relevance Of The Thirteenth Amendment, William M. Carter Jr.
The Promises Of Freedom: The Contemporary Relevance Of The Thirteenth Amendment, William M. Carter Jr.
Articles
This article, an expanded version of the author's remarks at the 2013 Honorable Clifford Scott Green Lecture at the Temple University Beasley School of Law, illuminates the history and the context of the Thirteenth Amendment. This article contends that the full scope of the Thirteenth Amendment has yet to be realized and offers reflections on why it remains an underenforced constitutional norm. Finally, this article demonstrates the relevance of the Thirteenth Amendment to addressing contemporary forms of racial inequality and subordination.
Assessing The State Of The State Constitutionalism, Jim Rossi
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 …
What If Slaughter-House Had Been Decided Differently?, Kermit Roosevelt Iii
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 …
Commerce In The Commerce Clause: A Response To Jack Balkin, Robert G. Natelson
Commerce In The Commerce Clause: A Response To Jack Balkin, Robert G. Natelson
Michigan Law Review First Impressions
The Constitution's original meaning is its meaning to those ratifying the document during a discrete time period: from its adoption by the Constitutional Convention in late 1787 until Rhode Island's ratification on May 29, 1790. Reconstructing it requires historical skills, including a comprehensive approach to sources. Jack Balkin's article Commerce fails to consider the full range of evidence and thereby attributes to the Constitution's Commerce Clause a scope that virtually no one in the Founding Era believed it had.
An Originalism For Foreign Affairs, Ingrid Wuerth
An Originalism For Foreign Affairs, Ingrid Wuerth
Vanderbilt Law School Faculty Publications
Legal scholarship on foreign affairs frequently focuses on the Constitution's text and original meaning, but generally does not fully engage debates about originalism as a method of modern constitutional interpretation. For its part, much of the scholarship defending originalism as a methodology has said little explicitly about foreign affairs. This short symposium contribution describes three contemporary normative arguments in favor of originalism - those advanced by Randy Barnett, Keith Whittington, and John McGinnis and Michael Rappaport - and then considers their application to foreign affairs. It concludes that these arguments are at best underdeveloped and at worst weak when it …
Interpretation, Francis J. Mootz Iii
Interpretation, Francis J. Mootz Iii
Scholarly Works
In this chapter from "Law and the Humanities: An Introduction," published by Cambridge University Press, I first survey various theoretical approaches to interpretation, including natural law, analytical legal positivism, law as communication (originalism, intentionalism, and new textualism), and the hermeneutical turn. I then discuss the role of interpretation in contract law, statutory law and constitutional law, to situate the theories in practice.