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That Elusive Consensus: The Historiographic Significance Of William E. Nelson's Works On Judicial Review, Mark Mcgarvie
That Elusive Consensus: The Historiographic Significance Of William E. Nelson's Works On Judicial Review, Mark Mcgarvie
Chicago-Kent Law Review
This essay provides a historiographical context for Nelson’s work on judicial review. It argues that Nelson’s integration of intellectual and legal history not only rebutted the instrumentalist historiography that prevailed when he undertook his work on Marshall and judicial review, but also fostered an appreciation of the need to place legal actors in the intellectual context in which they acted. Highlighting the influence of Bernard Bailyn’s pathfinding work on popular sovereignty upon Nelson’s development of his consensus theory, the essay contends that Nelson’s work changed the course of academic readings of Marshall’s jurisprudence to be consistent with a broader acceptance …
Stacking In Criminal Procedure Adjudication;Symposium On Criminal Procedure: Judicial Proceedings, Luke M. Milligan
Stacking In Criminal Procedure Adjudication;Symposium On Criminal Procedure: Judicial Proceedings, Luke M. Milligan
Chicago-Kent Law Review
The institutionalist branch of "Law and Courts" studies how judges incorporate institutional constraints into their decision-making processes. Congressional constraints on judicial review, as the literature currently stands, fall into one of two general classes: overrides and Court-curbing measures. This taxonomy, however, is incomplete. Neither overrides nor curbing measures are needed to explain the not uncommon situation where a policy-oriented Justice deviates from a preferred vote based on the belief that such a vote will prompt Congress to alter an "insulated base rule" in a way that disrupts the Justice's larger policy agenda. An "insulated base rule" is a Congressional policy …
The New Fiction: Dred Scott And The Language Of Judicial Authority, Mark A. Graber
The New Fiction: Dred Scott And The Language Of Judicial Authority, Mark A. Graber
Chicago-Kent Law Review
Claims that the Justices in Dred Scott abandoned a tradition of judicial restraint rely on an anachronistic measure for judicial activism. Antebellum Justices asserted that laws were unconstitutional only when restraining state officials. Judicial etiquette, in their opinion, required more circumspection when imposing constitutional limits on a coordinate branch of the national government. Contrary to accepted wisdom, the Justices before the Civil War imposed constitutional limitations on federal power in approximately twenty cases. They did so, however, without explicitly declaring federal legislation unconstitutional. The Justices in some federal cases ignored the plain meaning of federal statutes on the ground that …
Politics, Police, Past And Present: Larry Kramer's The People Themselves, Christopher Tomlins
Politics, Police, Past And Present: Larry Kramer's The People Themselves, Christopher Tomlins
Chicago-Kent Law Review
This article addresses aspects of the debate over Larry Kramer's The People Themselves and, more generally, current interest in popular constitutionalism before engaging, briefly, with the book itself. Because I find Kramer's book in general terms unexceptionable I see no particular reason to engage in the kind of lengthy critical assessment undertaken by those scholars whose disagreements with the book are pronounced. Instead I focus on three "sites" that the book traverses that I consider sites of missed opportunity. They are, first, the question of the people and the Constitution; second, the people and politics; third, the question of police …
A Discrete And Cosmopolitan Minority: The Loyalists, The Atlantic World, And The Origins Of Judicial Review, Daniel J. Hulsebosch
A Discrete And Cosmopolitan Minority: The Loyalists, The Atlantic World, And The Origins Of Judicial Review, Daniel J. Hulsebosch
Chicago-Kent Law Review
Historical interest in popular constitutionalism has enlivened the search for the origins of judicial review. Several precursors of judicial review in the state courts during the 1780s, in particular, demand explanation. If early modern Anglo-Americans did not perceive courts as enforcers of constitutional limits on legislatures, what explains these attempts by judges to curtail statutes in the "critical period" before the Philadelphia Convention? This article argues that these cases involved antiloyalist legislation and related laws that violated the Peace Treaty of 1783 or the law of nations, or otherwise obstructed diplomatic and commercial relations with the other empires of the …
Give "The People" What They Want?, Keith E. Whittington
Give "The People" What They Want?, Keith E. Whittington
Chicago-Kent Law Review
Larry Kramer's The People Themselves argues that "popular constitutionalism" has been the dominant tradition over the course of American history, being eclipsed by "judicial supremacy" only in the last decades of the twentieth century. He posits that political parties have, since the age of Andrew Jackson, been the vehicle for pushing back the forces of judicial supremacy. This article argues that political parties are instead deeply implicated in the political dynamic that gives rise to judicial supremacy in the United States. The article identifies the features of the early party system that allowed it serve the popular constitutionalist function that …
Kramer's Popular Constitutionalism: A Quick Normative Assessment, Sarah Harding
Kramer's Popular Constitutionalism: A Quick Normative Assessment, Sarah Harding
Chicago-Kent Law Review
This paper steps outside of the historical debate about the origins and development of judicial review and focuses on the normative claim that Kramer makes near the end of Popular Constitutionalism. Should the Court, as Kramer argues, have a little more humility when it comes to judicial review and its authority over constitutional interpretation? Should the Court have more respect for legislative decision-making? These questions are addressed through a brief exploration of the ideas of a leading skeptic of judicial review, Jeremy Waldron, and a glimpse at the experiences of other rights-respecting nations.
A Historiography Of The People Themselves And Popular Constitutionalism, Morton J. Horwitz
A Historiography Of The People Themselves And Popular Constitutionalism, Morton J. Horwitz
Chicago-Kent Law Review
The People Themselves intervenes in a growing contemporary debate about the role of the Supreme Court in our constitutional system that began to emerge after the end of the Warren Court and reached a crescendo with Bush v. Gore. For the second time since Lochner v. New York was decided, some liberals have begun once again to switch sides on the virtues of judicial review. Many recent liberal books and articles inevitably bring to mind the flood of Progressive attacks on the democratic legitimacy of judicial review written between 1905 and 1937. Yet the book can be approached independently …
Iredell Reclaimed: Farewell To Snowiss's History Of Judicial Review, Gerald Leonard
Iredell Reclaimed: Farewell To Snowiss's History Of Judicial Review, Gerald Leonard
Chicago-Kent Law Review
Even after the publication of Larry Kramer's The People Themselves, the early history of judicial review suffers from the unfortunate influence of Sylvia Snowiss's Judicial Review and the Law of the Constitution. Snowiss misread, among other things, James Iredell's foundational argument in 1786 for the inevitability and necessity of judicial review. Snowiss claimed that early understandings of judicial review conceptualized it not as a legal doctrine but as a doctrine of political and revolutionary resistance. In fact, however, Iredell argued for judicial review as a straightforward, legalistic consequence of popular sovereignty. In Iredell's influential account, the transition from …
Pre-Revolutionary Popular Constitutionalism And Larry Kramer's The People Themselves, Richard J. Ross
Pre-Revolutionary Popular Constitutionalism And Larry Kramer's The People Themselves, Richard J. Ross
Chicago-Kent Law Review
Larry Kramer's depiction of pre-Revolutionary constitutionalism rests on two dichotomies that are valuable yet exclude middle positions. First, he distinguishes between fundamental law and ordinary law. Second, he argues that pre-Revolutionary judges could play one of two roles—since they were not supreme constitutional interpreters (the first of these roles), they must have possessed no special authority to determine constitutional meanings (the second, and remaining, possibility). Both of these dichotomies obscure middle positions that capture important aspects of the pre-Revolutionary constitutional tradition. My comments briefly identify these middle positions and suggest what is at stake in recovering them.
Popular Constitutionalism As Political Law, Mark Tushnet
Popular Constitutionalism As Political Law, Mark Tushnet
Chicago-Kent Law Review
The People Themselves develops the idea that constitutional law is a special kind of law, political law. Examining some of the book's reviews, this Article explains how political law can be developed through relatively unstructured interactions among the people, political leaders in Congress and the presidency, and the courts. It argues that understanding how constitutional law as political law is developed requires, not the development of crisp analytic criteria, but close historical analysis of particular interactions. The Article identifies criteria for evaluating how popular constitutionalism compares to judicial review as a mechanism for enforcing constitutional rights, arguing that a serious …
Preempting The People: The Judicial Role In Regulatory Concurrency And Its Implications For Popular Lawmaking, Theodore W. Ruger
Preempting The People: The Judicial Role In Regulatory Concurrency And Its Implications For Popular Lawmaking, Theodore W. Ruger
Chicago-Kent Law Review
The phrase "popular constitutionalism" most commonly refers to the role of the public—or perhaps its elected representatives—in framing answers to particular substantive questions of constitutional interpretation. This essay explores a different aspect of the popular constitution of the United States, one that is indifferent to particular substantive questions but that forms the basic structure in which most lawmaking takes place. The United States is not merely a federal system but one with concurrent federalism, in which many issues are regulated by both state and federal governments. This norm of regulatory concurrency became entrenched in the twentieth century even as the …
Tom Delay: Popular Constitutionalist?, Neal Devins
Tom Delay: Popular Constitutionalist?, Neal Devins
Chicago-Kent Law Review
Focusing on congressional efforts to override state court decisionmaking in the Terri Schiavo case, this essay examines some of the practical problems associated with implementing Larry Kramer's popular constitutionalism. In particular, lawmakers will invoke the "will of the people" when, in fact, they are pursuing special interest politics. More than that, the Schiavo case calls attention to the increasing partisanship within Congress. This partisanship, contrary to the objectives of popular constitutionalism, makes lawmakers less likely to advance the national interest and more likely to focus their energies on their increasingly partisan base. For this very reason, today's Congress is less …
Popular Constitutionalism As Presidential Constitutionalism?, David L. Franklin
Popular Constitutionalism As Presidential Constitutionalism?, David L. Franklin
Chicago-Kent Law Review
This essay, which focuses on Larry Kramer's book The People Themselves, makes three points. First, although Kramer makes popular constitutionalism the conceptual centerpiece of his book, it's not at all clear what popular constitutionalism is. Kramer's work can be read to embody two very different versions of popular constitutionalism: a populist sensibility model and a departmentalist model. Second, whichever model Kramer has in mind, he has performed a valuable service by reminding us that the meaning of the Constitution is not identical to the doctrines the Supreme Court uses to implement that meaning. Third, popular constitutionalism in 2006 may in …
Constitutional Education For The People Themselves, Sheldon Nahmod
Constitutional Education For The People Themselves, Sheldon Nahmod
Chicago-Kent Law Review
Professor Nahmod, like Dean Kramer, remains profoundly disturbed by the Supreme Court's triumphalist decision in Bush v. Gore. However, he does not go so far as Dean Kramer in arguing normatively for a return to "popular constitutionalism." Rather, his more modest position is that the Supreme Court, Congress, and the President, together with the bar and the media, have a normative obligation to educate "the people themselves" in constitutional matters. This often-overlooked and vitally important "constitutional education" of the people is based on the self-government rationale of both our constitutional structure and the First Amendment. Professor Nahmod suggests how …
Comment: Popular Law And The Doubtful Case Rule, Frank I. Michelman
Comment: Popular Law And The Doubtful Case Rule, Frank I. Michelman
Chicago-Kent Law Review
A "doubtful case" or "clear mistake" rule is a rule calling for substantial deference by a reviewing court to a legislature's implicit affirmation of the constitutional probity of the statutes it enacts. Americans of the early Republic reportedly found a grounding for such a rule of judicial conduct in a conception of constitutional law as popular (not "ordinary") law. On examination, it proves difficult to trace a persuasive connection between the popular-law conception and demands for judicial adherence to a rule of deference to the implicit constitutional judgments of legislatures. Rather, the popular law conception calls for a kind of …
Response, Larry Kramer