Constitutional Law Commons^™

Legislatures, Agencies, Courts And Advocates: How Laws Are Made, Interpreted And Modified, Chai R. Feldblum, Robin Appleberry

Georgetown Law Faculty Publications and Other Works

This chapter explains the nature and practice of lawmaking, legal advocacy, and legal research as they relate to the field of work and family. Through reference to the Family and Medical Leave Act of 1993 as a case study, the authors explain the dynamic processes by which laws are made, interpreted and modified by legislatures, administrative agencies and courts, with the help of legal advocates. Their goal is not to provide substantive analysis of laws related to work and family, but rather to enable researchers from a range of disciplines to understand and access the legal system, as it currently …

It's A Bird, It's A Plane, No, It's Super Precedent: A Response To Faber And Gerhardt, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

The normative case for originalism is based, in large measure, on the superiority of the enacted text over the opinions of members of the government whom it is supposed to govern and limit-including members of the Supreme Court. The author does not see how an originalist can accept that the Supreme Court could change the meaning of the text from what it meant as enacted and still remain an originalist. In other words, once it becomes appropriate for the Supreme Court to discard original meaning and the original meaning of the text is thereby reduced to a factor among many …

Moral Conflict And Liberty: Gay Rights And Religion, Chai R. Feldblum

Georgetown Law Faculty Publications and Other Works

My goal in this piece is to surface some of the commonalities between religious belief liberty and sexual orientation identity liberty and to offer some public policy suggestions for what to do when these liberties conflict. I first want to make transparent the conflict that I believe exists between laws intended to protect the liberty of lesbian, gay, bisexual and transgender ("LGBT") people so that they may live lives of dignity and integrity and the religious beliefs of some individuals whose conduct is regulated by such laws. I believe those who advocate for LGBT equality have downplayed the impact of …

Constitutions As "Living Trees"? Comparative Constitutional Law And Interpretive Metaphors, Vicki C. Jackson

Georgetown Law Faculty Publications and Other Works

Part I below explores the interpretive approaches of three other high national courts that have engaged in constitutional review over a long period of time, identifying two respects in which they may bear on this debate. First, their jurisprudence relies on interpretive approaches that depend on multiple sources and forms of argument-what some call an "eclectic" method, and others might call common law constitutionalism. Second, the jurisprudence of other significant national courts acknowledges the possibility that interpretive understandings will change. Indeed, in those countries with continuity of rights-protecting constitutional regimes and with high courts vested with the power of judicial …

Weak-Form Judicial Review And "Core" Civil Liberties, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

In this Essay, I want to unearth some subordinated strands in the Rehnquist Court's free speech jurisprudence. For example, the Rehnquist Court allowed Congress to regulate campaign finance in ways subject to credible First Amendment objections, and to impose obligations on cable television systems that would almost certainly be unconstitutional were they imposed on newspapers. These decisions, I suggest, do not rest simply on the kind of deference to legislative judgment that fits comfortably into a system of strong-form review. Rather, they represent what I call a managerial model of the First Amendment, which accords legislatures a large role in …

We The People's Executive, Rosa Ehrenreich Brooks

Georgetown Law Faculty Publications and Other Works

Perhaps to no one’s surprise, a recent survey found that most Americans know far more about television hits than they know about the United States Constitution. For instance, 52% of Americans surveyed could name at least two characters from The Simpsons, and 41% could name at least two judges from American Idol. Meanwhile, a mere 28% could identify more than one of the rights protected by the First Amendment.

Surveys such as this help clear up one of the apparent mysteries of the last five years: How did we change so quickly from a nation in which the …

When Is Knowing Less Better Than Knowing More? Unpacking The Controversy Over Supreme Court Reference To Non-U.S. Law, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

My goal in this Essay is simply to lay out the criticisms of the use of non-U.S. law in constitutional interpretation, so as to identify what might be correct (not much, in the end) in those criticisms. I discuss criticisms based on theories of interpretation, on the claim that reference to non-U.S. law is merely decoration playing no role in generating outcomes, on the role the Constitution has in expressing distinctively American values, and on the proposition that judges are unlikely to do a good job in understanding - and therefore in referring to - non-U.S. law. This last "quality-control" …

The Supreme Court In Bondage: Constitutional Stare Decisis, Legal Formalism, And The Future Of Unenumerated Rights, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

This essay advances a formalist conception of constitutional stare decisis. The author argues that instrumentalist accounts of precedent are inherently unsatisfying and that the Supreme Court should abandon adherence to the doctrine that it is free to overrule its own prior decisions. These moves are embedded in a larger theoretical framework--a revival of formalist ideas in legal theory that he calls "neoformalism" to distinguish his view from the so-called "formalism" caricatured by the legal realists (and from some other views that are called "formalist").

In Part II, The Critique of Unenumerated Constitutional Rights, the author sets the stage by …

Constitutional Academic Freedom After Grutter: Getting Real About The "Four Freedoms" Of A University, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

The Supreme Court's decision in Grutter v. Bollinger represents a high-water mark for the recognition and influence of constitutional academic freedom. The Court there relied, gingerly perhaps, on constitutional academic freedom, understood as some autonomy for university decision making on matters of core academic concern, to provide a compelling interest adequate to uphold flexible racial preferences in university admissions. Now that the dust has settled from direct import of the decision for affirmative action in admissions, it is important to consider what role constitutional academic freedom, as a working constitutional doctrine, should or may play within current disputes about higher …

Beyond Coercion: Justice Kennedy's Aversion To Animus, Steven Goldberg

Georgetown Law Faculty Publications and Other Works

In evaluating the constitutionality of religious displays, Justice Kennedy adheres to the coercion test. A crèche on the courthouse steps is acceptable because it does not coerce anyone to support or participate in a religious exercise. He rejects the endorsement test, which asks whether the display makes reasonable nonadherents feel like outsiders, finding it to be “flawed in its fundamentals and unworkable in practice.” Yet in the free exercise context, Kennedy has focused on whether a community shows hostility to minority faiths, and his opinions in Romer and Lawrence stress that legislatures acted unconstitutionally in showing animus to gays. Suppose …

Restoring The Lost Constitution, Not The Constitution In Exile, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

The Constitution we have now is redacted. Any practicing lawyer will tell you that you cannot go into court and argue the Ninth Amendment. You cannot go into court and argue the Privileges or Immunities Clause. Until United States v. Lopez you could not argue the Commerce Clause; after Gonzales v. Raich, it is not clear you can argue the Commerce Clause anymore. You cannot argue the Necessary and Proper Clause. You cannot argue the Republican Guarantee Clause. You cannot argue the Second Amendment outside the Fifth Circuit. Whole sections of the Constitution are now gone. This is the …

Political Power And Judicial Power: Some Observations On Their Relation, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

This Essay summarizes and perhaps extends slightly some important recent work, mostly by political scientists, on the structural relation between the array of political power in a nation's nonjudicial branch or branches and the way in which judicial review is exercised in relatively stable democracies. Robert Dahl's classic article identified one such relation. According to Dahl, "[e]xcept for short-lived transitional periods when the old alliance is disintegrating and the new one is struggling to take control of political institutions, the Supreme Court is inevitably a part of the dominant national alliance." What, though, if there is no "dominant" national political …

Popular Constitutionalism As Political Law, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

This Article addresses some of the critical reviews of ‘The People Themselves’, focusing on how they respond to the proposition, which I believe to be correct and made in ‘The People Themselves’, that constitutional law is a distinctive or special kind of law. I call that kind of law political law. Both parts of the formulation are equally important. Constitutional law is law, what is sometimes described as "hard" law. As law, it sometimes induces decision-makers to make decisions that are inconsistent with their "pure" preferences, that is, those they would hold in the absence of law. My aim is …

The "Constitution Restoration Act" And Judicial Independence: Some Observations, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

This Essay uses the proposed Constitution Restoration Act of 2005 as the vehicle for exploring some aspects of contemporary concerns about judicial independence and the mechanisms available to control what might be perceived as abuses of judicial authority . . . I doubt that the Act has a serious chance of enactment, but its introduction provides an opportunity to examine some difficulties associated with congressional control of judicial decision-making. I begin by treating the Constitution Restoration Act as a real statute, asking what its substantive terms mean. I argue that there is substantial tension between what the Act says and …

Who's Afraid Of Unenumerated Rights?, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Unenumerated rights are expressly protected against federal infringement by the original meaning of the Ninth Amendment and against state infringement by the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment. Despite this textual recognition, unenumerated rights have received inconsistent and hesitant protection ever since these provisions were enacted, and what protection they do receive is subject to intense criticism. In this essay, the author examines why some are afraid to enforce unenumerated rights. While this reluctance seems most obviously to stem from the uncertainty of ascertaining the content of unenumerated rights, he contends that underlying this …

What Bush Wants To Hear, David Cole

Georgetown Law Faculty Publications and Other Works

No abstract provided.

Examination Of The Constitutional Amendment On Marriage: Hearing Before The Subcomm. On The Constitution, Civil Rights, And Property Rights Of The S. Comm. On The Judiciary, 109th Cong., Oct. 20, 2005 (Statement Of Professor Louis Michael Seidman, Geo. U. L. Center), Louis Michael Seidman

Testimony Before Congress

No abstract provided.

House Resolution On The Appropriate Role Of Foreign Judgments In The Interpretation Of The Constitution Of The United States: Hearing Before The Subcommittee On The Constitution, House Committee On The Judiciary, 109th Cong., July 19, 2005 (Statement Of Viet D. Dinh, Prof. Of Law, Geo. U. L. Center), Viet D. Dinh

Testimony Before Congress

No abstract provided.

House Resolution On The Appropriate Role Of Foreign Judgements In The Interpretation Of The Constitution Of The United States: Hearing Before The Subcomm. On The Constitution, H. Comm. On The Judiciary, 109th Cong., July 19, 2005 (Statement Of Nicholas Quinn Rosenkranz, Prof. Of Law, Geo. U. L. Center), Nicholas Quinn Rosenkranz

Testimony Before Congress

No abstract provided.

The Politics Of The Geneva Conventions: Avoiding Formalist Traps, Rosa Brooks

Georgetown Law Faculty Publications and Other Works

The Geneva Conventions were drafted in 1949, in another world. The world of the Geneva Conventions' "framers" is still familiar to all of us, though increasingly it is familiar from movies and books rather from the evening news or, still less, our own lived experience. The world in which the Conventions were drafted was a world of states: powerful states, weak states, predatory states, law-abiding states, but states all the same. Soldiers wore uniforms designed by their states, carried weapons issued by their states, obeyed orders given by their commanders, and fought against the armies of other states.

Well--most of …

Controlling Executive Power In The War On Terrorism, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

How does - or should - the U.S. Constitution regulate the exercise of power in response to threats to national security, to ensure that power is used wisely? s Broadly speaking, two mechanisms of control are available: a separation-of-powers mechanism and a judicial-review mechanism. Both mechanisms aim to ensure that the national government exercises its power responsibly - with sufficient vigor to meet the nation's challenges, but without intruding on protected liberties. Under the separation-of-powers mechanism, nearly all of the work of regulating power is done by the principle that the President can do only what Congress authorizes. Its primary …

"Meet The New Boss": The New Judicial Center, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

A document entitled ‘Guidelines on Constitutional Litigation’ published in 1988 by the Reagan era Department of Justice is the springboard for Professor Tushnet's discussion of the Supreme Court's "new center. " The Guidelines urged Department of Justice litigators to foster a nearly exclusive reliance on original understanding in constitutional interpretation and to resort to legislative history only as a last resort. The Guidelines also advised Department of Justice litigators to seek substantive legal changes including more restrictive standing requirements, an end to the creation of unenumerated individual rights, greater constitutional protection of property rights, and greater limits on congressional power. …

Terror And Race, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

The United States is now engaged in an internationally prominent war on terror. That war, however, is being waged in a way that threatens to cause the same types of harm to the democratic values of the United States that the Nation's terrorist enemies are hoping to inflict. Foreign terrorists are attempting to undermine the fundamental liberties that United States culture claims to hold dear. But those are the same liberties that our own government has asked us to forego in its effort to win the war on terror. The paradoxical irony entailed in the United States government's demand that …

Judicial Selection: Ideology Versus Character, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

Part I of Judicial Selection: Ideology versus Character sets the stage for an argument that character and not political ideology should be the primary factor in the selection of judges. Political ideology has played an important role in judicial selection, from John Adams's entrenchment of federalists as judges after the election of 1800 to the Roosevelt's selection of progressives, liberals, and New Dealers, the contemporary era, from the failed nominations of Fortas, Haynsworth, Carswell to the defeat of Robert Bork, the narrow confirmation of Clarence Thomas. But until recently, political ideology has played its role behind the scenes--mostly off the …

The Very Idea Of A First Amendment Right Against Compelled Subsidization, Gregory Klass

Georgetown Law Faculty Publications and Other Works

At present, it is difficult to discern what rules govern compelled subsidization and where the constitutional limits lie. The root cause of the current confusion is the Supreme Court's failure to provide a coherent account of the First Amendment harm of compelled subsidization. Part I of this Article describes the present state of the doctrine. It identifies a number of practical problems, especially the imprecisions in and conflicts between the Court's holdings that leave it unclear how lower courts should decide novel cases. Part II is a critical discussion of the two most common arguments for a First Amendment right …

Human Nature, The Laws Of Nature, And The Nature Of Environmental Law, Richard J. Lazarus

Georgetown Law Faculty Publications and Other Works

The essay is divided into three parts. Part I considers the ways in which the need for environmental law derives from the tendency of human nature to cause adverse environmental consequences and the ways in which the laws of nature make it more difficult to prevent those consequences absent the imposition of external legal rules. Part II describes how our nation's lawmaking institutions are similarly challenged by the laws of nature. This includes a discussion of how the kinds of laws necessary to bridge the gap between human nature and the laws of nature are systematically difficult for our lawmaking …

Terrorist Speech And The Future Of Free Expression, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

The crucial point is this: Both liberal, democratic states, and non-state terrorist organizations need free speech. Prominent scholars have written elegantly and at length on the role of this liberty for the former. While their arguments surface at times in the text, the author does not dwell on them. Instead, she wrestles with the question: Under what circumstances are the interests of the state secured and the opportunism of terrorist organizations avoided? Here, the experiences of the United States and United Kingdom prove instructive. On both sides of the Atlantic, where the state acts as sovereign, efforts to restrict persuasive …

Trumping Precedent With Original Meaning: Not As Radical As It Sounds, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Originalism was thought to be buried in the 1980s with critiques such as those by Paul Brest and Jeff Powell. Brest charged that originalism was unworkable, while Powell maintained that originalism was inconsistent with the original intentions of the Founders. Others raised the moral challenge of why we should be ruled by the "dead hand" of the past. Yet an originalist approach to interpretation has-like a phoenix from the ashes or Dracula from his grave, depending on your point of view-survived into the Twenty-first Century as an intellectual contender. Indeed, it has thrived like no other approach to interpretation.

Grading Justice Kennedy: A Reply To Professor Carpenter, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

I want to thank the editors of the Minnesota Law Review for soliciting this Reply to Professor Dale Carpenter's provocative analysis of my assessment of Justice Kennedy's opinion in Lawrence v. Texas. As it turns out, though we do disagree about Lawrence, Professor Carpenter and I have fewer disagreements than he thinks. To begin to see why, let us imagine that, like many other professors, he had used the facts and lower opinion in Lawrence as the basis for his final examination in his course on Constitutional Law. On the exam, he asked his students to write an opinion for …

Limiting Raich, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

On Monday, November 29th, 2004, at 10:30 a.m., I rose to argue the case of Gonzales v. Raich in the Supreme Court on behalf of Angel Raich and Diane Monson. On Monday, June 6th, 2005, at 10:00 a.m., the Court announced its decision. Even today it is painful to read the opinions in the case. I am saddened for my clients, and the thousands like them, whose suffering is alleviated by the use of cannabis for medical purposes, as recommended by their physicians and permitted by the laws of their states, but who are nevertheless considered criminals by the federal …