Constitutional Law Commons^™

Justice Scalia On The Use Of Foreign Law In Constitutional Interpretation: Unidirectional Monologue Or Co-Constitutive Dialogue, Melissa A. Waters

Scholarship@WashULaw

This short essay explores Justice Antonin Scalia's conservative alternative approach to recent efforts by other Justices to utilize foreign and international legal sources in the Supreme Court's jurisprudence. It discusses Justice Scalia's writings and remarks over the course of the 2003-2004 Supreme Court Term: On the one hand, Justice Scalia consistently denounced the use of foreign legal sources in constitutional interpretation, both in his concurring opinion in Sosa v. Alvarez-Machain and in his keynote address at the Annual Meeting of the American Society of International Law. On the other hand, in his dissent in Olympic Airways v. Husain, Justice Scalia …

Of Power And Responsibility: The Political Morality Of Federal Systems, Daniel Halberstam

Articles

In comparative constitutional discourse, Americans are from Mars and Europeans from Venus; we eagerly tell our European counterparts about the U.S. constitutional experience, but rarely do we listen when they talk to us about their own. Whereas Europeans routinely examine U.S. constitutionalism as an illuminating point of comparison or contrast, as Americans, we seem convinced that we have nothing to learn from looking abroad. This Article challenges that assumption. In particular, it argues that American courts and scholars have overlooked an important alternative to the dominant interpretation of the division of powers in the United States by ignoring the theory …

Marbury V. Madison And European Union "Constitutional" Review, George A. Bermann

Faculty Scholarship

The U.S. Supreme Court's decision in Marbury v. Madison specifically raises the question of the legitimacy of a "horizontal" species of judicial review, that is, review by courts of the exercise of powers by the coordinate branches of government. The same question could be asked with respect to judicial review in the European Union. More particularly, how problematic or contestable has "horizontal" judicial review been within the European Union as a matter of principle? And, irrespective of its contestability, how have the courts of the European Union exercised "horizontal" review? We will find, however, that it is not the "horizontal" …

Marbury V. Madison Around The World, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

To put the point somewhat strongly for emphasis, the U.S. system of judicial review is now something of an outlier among systems of constitutional review. In this Essay, I consider three aspects of such systems: the structures of review, the theories of review, and the forms of review. My aim is primarily one of description, aiming to highlight the ways in which the U.S. system resembles and differs from the newer systems of judicial review. The U.S. system of judicial review has close-and more distant-relatives in each of these categories. However, the U.S. system remains distinctive in that it combines …

The "Horizontal Effect" Of Constitutional Rights, Stephen Gardbaum

Michigan Law Review

Among the most fundamental issues in constitutional law is the scope of application of individual rights provisions and, in particular, their reach into the private sphere. This issue is also currently one of the most important and hotly debated in comparative constitutional law, where it is known under the rubric of "vertical" and "horizontal effect." These alternatives refer to whether constitutional rights regulate only the conduct of governmental actors in their dealings with private individuals (vertical) or also relations between private individuals (horizontal). In recent years, the horizontal position has been adopted to varying degrees, and after systematic scholarly and …

Trial Of The Accused Taliban And Al Qaeda Operatives Captured In Afghanistan And Detained On A U.S. Military Base In Cuba, Jaime Jackson

ExpressO

A timely piece proposing solutions for issues certain to be raised in the upcoming trials of the accused Taliban and Al Qaeda operatives captured in Afghanistan and detained on a U.S. military base in Cuba. In the article, I begin by examining the history and jurisdiction of Article I and Article III courts and then address the history and structure of the Al Qaeda and Taliban regimes. After considering the Constitution, federal statutes, politics, and geographical limitations, I conclude that Al Qaeda detainees should be tried in Article III courts under terrorism statutes and Taliban detainees, as military combatants, should …

The Connotation/Denotation Distinction In Constitutional Interpretation, Christopher Birch

The Journal of Appellate Practice and Process

No abstract provided.

Canadian Fundamental Justice And American Due Process: Two Models For A Guarantee Of Basic Adjudicative Fairness, David M. Siegel

ExpressO

This paper traces how the Supreme Courts of Canada and the United States have each used the basic guarantee of adjudicative fairness in their respective constitutions to effect revolutions in their countries’ criminal justice systems, through two different jurisprudential models for this development. It identifies a relationship between two core constitutional structures, the basic guarantee and enumerated rights, and shows how this relationship can affect the degree to which entrenched constitutional rights actually protect individuals. It explains that the different models for the relationship between the basic guarantee and enumerated rights adopted in Canada and the United States, an “expansive …

The Perils Of "Consensus": Hans Kelsen And The Legal Philosophy Of The United Nations, J. Peter Pham

ExpressO

Recently the United States and a number of its traditional allies have clashed over a variety of foreign policy issues that are profoundly juridical: the authority for war and peace, the International Criminal Court, etc. The source of these recent tensions is to be located at a level deeper than that of narrow national interests and specific policies. Rather, they arise from significant differences concerning the nature of "consensus" and, ultimately, legal philosophy. While the United Nations and many other international organizations derive their legal visions from the philosophy of law of Hans Kelsen (1881-1973), one of the most important …

Alternative Forms Of Judicial Review, Mark Tushnet

Michigan Law Review

The invention in the late twentieth century of what I call weak-form systems of judicial review provides us with the chance to see in a new light some traditional debates within U.S. constitutional law and theory, which are predicated on the fact that the United States has strong-form judicial review. Strong- and weak-form systems operate on the level of constitutional design, in the sense that their characteristics are specified in constitutional documents or in deep-rooted constitutional traditions. After sketching the differences between strong- and weak-form systems, I turn to design features that operate at the next lower level. Here legislatures …

Comparative Constitutionalism In A New Key, Paul W. Kahn

Michigan Law Review

Law is a symbolic system that structures the political imagination. The "rule of law" is a shorthand expression for a cultural practice that constructs a particular understanding of time and space, of subjects and groups, as well as of authority and legitimacy. It is a way of projecting, maintaining, and discovering meaning in the world of historical events and political possibilities. The rule of law - as opposed to the techniques of lawyering - is not the possession of lawyers. It is a characterization of the polity, which operates both descriptively and normatively in public perception. Ours, we believe, is …

Why Europe Rejected American Judicial Review - And Why It May Not Matter, Alec Stone Sweet

Michigan Law Review

In this Article, I explore the question of why constitutional review, but not American judicial review, spread across Europe. I will also argue that, despite obvious organic differences between the American and European systems of review, there is an increasing convergence in how review actually operates. I proceed as follows. In Part I, I examine the debate on establishing judicial review in Europe, focusing on the French. In Parts II and III, I contrast the European and the American models of review, and briefly discuss why the Kelsenian constitutional court diffused across Europe. In Part IV, I argue that despite …

Property As A Fundamental Constitutional Right? The German Example, Gregory S. Alexander

Cornell Law Faculty Publications

No abstract provided.

Constitutional Constraints On The International Law-Making Power Of The Federal Courts, Jason Jarvis

Florida State University Journal of Transnational Law & Policy

No abstract provided.

The Eu Competency Confusion: Limits, "Extension Mechanisms," Split Power, Subsidiarity, And "Institutional Clashes", Peter Orebech

Florida State University Journal of Transnational Law & Policy

No abstract provided.

Is It The Beginning Of The Era Of The Rule Of The Constitution? Reinterpreting China's "First Constitutional Case, Shen Kui, Yuping Liu

Washington International Law Journal

The subject of this article is the so-called "first constitutional case" in China. The Qi Yuling case is, in a sense, the very first time since the foundation of the People's Republic of China that constitutional provisions have been directly invoked by the Supreme People's Court in a civil lawsuit to protect a citizen's right to receive education, one of the fundamental rights protected by the Constitution. The Qi Yuling case, therefore, has given rise to much discussion on issues of judicial interpretation of the Constitution and the Constitution's application in the private domain, as well as the institution of …

Civil Rights And Civil Liberties: Whose “Rule Of Law”?, William W. Van Alstyne

Faculty Scholarship

No abstract provided.

Two Sides Of A "Sargasso Sea": Successive Prosecution For The "Same Offence" In The United States And The United Kingdom, Lissa Griffin

Elisabeth Haub School of Law Faculty Publications

This article analyzes the U. S. constitutional law interpreting the concept of “same offence.” Included is a survey of the Supreme Court's attempts to interpret constitutional text in order to provide adequate protection for the underlying double jeopardy interest against vexatious reprosecutions, which have frequently produced inconsistent and illogical results. Part III of this article analyzes U.K. law relating to the concept of “same offence,” where the same narrow double jeopardy protection adopted by the U.S. Supreme Court is supplemented with a broad discretion to prevent unfair successive prosecution that constitutes an abuse of process. Part IV draws lessons from …

New Forms Of Judicial Review And The Persistence Of Rights - And Democracy-Based Worries, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

Recent developments in judicial review have raised the possibility that the debate over judicial supremacy versus legislative supremacy might be transformed into one about differing institutions to implement judicial review. Rather than posing judicial review against legislative supremacy, the terms of the debate might be over having institutions designed to exercise forms of judicial review that accommodate both legislative supremacy and judicial implementation of constitutional limits. After examining some of these institutional developments in Canada, South Africa, and Great Britain, this Article asks whether these accommodations, which attempt to pursue a middle course, have characteristic instabilities that will in the …

The Van Ert Methodology Of Domestic Reception, Jamie Cameron

Articles & Book Chapters

A review of Gibran van Ert's book: Using International Law in Canadian Courts. This review approaches the author's methodology of domestic reception from a constitutionalist's perspective.

The Control Over The De-Identification Of Data, Benjamin Charkow

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Locked In Inequality: The Persistence Of Discrimination, Daria Roithmayr

Michigan Journal of Race and Law

In this Article, the author argues that the practice of charging school fees to attend public school is an example of locked-in discrimination that persists over time, even in the absence of intentional discrimination. Exploring the lock-in model of discrimination in the unique context of South Africa, Roithmayr makes two central points. First, discriminatory practices often become locked into institutional structures because high switching costs-the costs of moving from a discriminatory practice to an inclusive one—make it too difficult for an institution to discontinue discriminating. Even when institutional actors are fully committed to eradicating racial disparity, they may be constrained …

Sacred Sites And Religious Freedom On Government Land, Richard B. Collins

Publications

No abstract provided.

Ballot Boxes Behind Bars: Toward The Repeal Of Prisoner Disenfranchisement Laws, Debra Parkes

All Faculty Publications

This paper takes seriously the objection that allowing prisoners to vote may have an impact on the outcome of elections or on the development of law and policy, given the extraordinarily high incarceration rate currently a reality in the United States. The reality that prisoners may have an impact on the outcome of elections is an argument in favour of allowing them to vote rather than against it. A progressive critique or constitutional challenge of prisoner disenfranchisement should call attention to the instrumental, as well as symbolic and constitutive functions of voting, and must defend the importance of having the …

Constitutionalism As A Political Culture, Annen Junji, Lee H. Rousso

Washington International Law Journal

Translator's Forward: These are not happy times in Japan. Its economy, at one time the most dynamic on the planet, has been in the dumps for over a decade. The population is both aging and declining. A "lost generation" of young Japanese has come of age amid diminished, and diminishing, expectations. The government, controlled as always by the Liberal Democratic Party ("LDP"), is rigid, bloated, corrupt, and deeply in debt. And there is no real reason to believe that the next decade will bring improvement in any of these areas. Not surprisingly, as Japan's economic juggernaut has faltered, the tone …

Mohammed And Madison: A Comparison Of The Qur'an And The U.S. Constitution, Joshua White

Florida State University Journal of Transnational Law & Policy

No abstract provided.

Time For A New Approach? Federalism And Foreign Affairs After "Crosby V. National Foreign Trade Council", James J. Pascoe

Vanderbilt Journal of Transnational Law

On June 19, 2000, in Crosby v. National Foreign Trade Council--a much-anticipated decision involving the intersection of federalism and foreign relations--the U.S. Supreme Court struck down a Massachusetts law restricting state purchases from companies doing business in Burma. Crosby represents the Court's first consideration not only of local selective purchasing laws but, more importantly, its first consideration of the sort of subnational sanctions first developed by state and local governments during the anti-apartheid campaign of the 1980's. Thus, Crosby may pose an obstacle to human rights activism by local governments using economic sanctions to punish perceived human-rights offenders.

Because the …

Charter Insights For American Equality Jurisprudence, Stephen F. Ross

Faculty Scholarship

Although both the Canadian Charter and the United States Constitutions protect persons from denial of equal protection of the law, the interpretation of the broad language of the two equality guarantees has been quite different. The Supreme Court of Canada has adopted an approach of substantive equality, concluding that section 15 is designed to prevent the loss of human dignity that accompanies discrimination based on disadvantage and stereotype. At least with regard to race, a majority of the justices on the United States Supreme Court adhere to a jurisprudence of formal equality, concluding that the Fifth and Fourteenth Amendments prohibit …

An Introduction To The Federal Constitutional Court, Donald P. Kommers

Journal Articles

This essay introduces the Federal Constitutional Court, briefly surveying the Court’s legal heritage, the history of its founding, its jurisdiction, and its structure.

No. 1 - Legal Systems In Transition, Ivana Janu, Josef Bejcek, Gabriel M. Wilner

Occasional Papers Series

A January 24-28, 2000 visit by Justice Ivana Janu, Dean Josef Bejcek, and some of the Czech colleagues to the Dean Rusk Center and the University of Georgia provided an occasion for the exchange of ideas concerning transition in the legal structure and content in the former Socialist states of central and eastern Europe. Justice Janu and Dean Bejcek prepared papers and agreed to their publication. The availability of these two important papers, one on constitutional courts and the other on transitions in commercial law, rendered to the Rusk Center the necessary impetus for the creation of the Occasional Papers …