Constitutional Law Commons^™

W(H)Ither Zschernig?, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

The author argues here that a declaration of victory by the critics of the dormant foreign affairs doctrine would be premature. Notwithstanding the Court's citation of Ashwander v. TVA, the actual grounds of the decision in Crosby were in no meaningful sense less "constitutional" in nature than a decision based on the dormant foreign affairs power would have been. Moreover, even though the Court said that its decision was based on a straightforward application of "settled ... implied preemption doctrine," the Court's preemption analysis was anything but ordinary. Indeed, Crosby's version of preemption analysis is subject to the …

"Shut Up He Explained", Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

Part I of this Commentary examines the conversational model of politics. I argue that the virtues Bennett finds in the conversational model exist only when, and to the extent that, participants in civil and political society can engage in undominated conversation. The requirement that conversation be undominated generates a substantial set of social prerequisites, mostly dealing with equality. And yet, determining what social arrangements actually satisfy those prerequisites is itself a matter of constitutional controversy. Resolving such controversies through politics is no solution, because the political arena is where we seek to ensure that nondomination prevails in civil society, and, …

The Original Meaning Of The Commerce Clause, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

The U& Supreme Court, in recent cases; has attempted to define limits on the Congress's power to regulate commerce among the several states. While Justice Thomas has maintained that the original meaning of "commerce" was limited to the "trade and exchange" of goods and transportation for this purpose, some have argued that he is mistaken and that "commerce" originally included any "gainful activity." Having examined every appearance of the word "commerce"in the records of the Constitutional Convention, the ratification debates and the Federalist Papers, Professor Barnett finds no surviving example of this term being used in this broader sense. In …

Federalism And International Human Rights In The New Constitutional Order, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

This Essay examines the contours of what I have elsewhere called the new constitutional order with respect to international human rights and federalism. The background is my suggestion that the U.S. political-constitutional system is on the verge of moving into a new constitutional regime, following the end of the New Deal-Great Society constitutional regime. The Supreme Court's innovations in the law of federalism in connection with Congress's exercise of its powers over domestic affairs has provoked speculation about the implications of those innovations for the national government's power with respect to foreign affairs. Most of the speculation has been that …

Brief For William E. Brock And John Mccain Et Al., California Democratic Party V. Jones, No. 99-401 (U.S. Mar. 30, 2000), Viet D. Dinh, Paul F. Rothstein, Roy A. Schotland, Don Wallace Jr.

U.S. Supreme Court Briefs

No abstract provided.

Private Property Rights And Telecommunications Policy: Hearing Before The H. Comm. On The Judiciary, 106th Cong., Mar. 21, 2000 (Statement Of Viet D. Dinh, Prof. Of Law, Geo. U. L. Center), Viet D. Dinh

Testimony Before Congress

No abstract provided.

Eleventh Amendment Schizophrenia, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

This article argues that conflicting analytical strains run through the Supreme Court's recent majority opinions in the area of state sovereign immunity. The "supremacy" strain stresses that, despite the Eleventh Amendment, the states remain obligated to comply with federal law, and that the Constitution envisions the "necessary judicial means" to enforce these obligations against the state. These means include suits by the federal government, private suits for injunctive relief, and suits seeking damages from state officials in their individual capacities. Thus, according to the supremacy strain, state sovereign immunity is unimportant because it merely bars unnecessary means of enforcing the …

Second Amendment Symposium: Commentary, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Commentary on the Second Amendment given as part of the “Symposium on the Second Amendment.”

The Value Of Dissent, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

This essay reviews Dissent, Injustice, and the Meanings of America by Steven H. Shiffrin (1999).

Theorizing about the freedom of speech has been a central enterprise of contemporary legal scholarship. The important contributions to the debate are simply far too numerous to categorize. One ambition of this theorizing is the production of a comprehensive theory of the freedom of expression, a set of consistent normative principles that would explain and justify First Amendment doctrine. Despite an outpouring of scholarly effort, the consensus is that free speech theory has failed to realize this imperial ambition. Rather than searching for the global …

Sovereign Immunity, Due Process, And The Alden Trilogy, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

In Alden v. Maine, the Court held that the principle of sovereign immunity protects states from being sued without their consent in their own courts by private parties seeking damages for the states' violation of federal law. The Court thus rejected the "forum allocation" interpretation of the Eleventh Amendment, under which the Amendment serves merely to channel suits against the states based on federal law into the state courts, which are required by the Supremacy Clause to entertain such suits. The Court held instead that the Eleventh Amendment protects the states from being subjected to private damage liability by …

The Constitution Of Civil Society, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

This Article . . .sketches how the free expression, freedom of religion, and substantive due process provisions of the U.S. Constitution have been interpreted to define and protect families, religious institutions, non-political associations, and political parties. I have organized the discussion by topics rather than by institutions. The next section examines the ways in which constitutional law defines civil society's institutions, and Section III examines the extent to which it allows government to regulate them. Section IV deals with the constitutional restrictions on government's power to give unconditional or conditional grants to civil society's institutions. The Conclusion returns to the …

Globalization And Federalism In A Post-Printz World, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

This Article uses the recent Supreme Court decision in Crosby v. National Foreign Trade Council as the vehicle for examining the way in which the U.S. constitutional law of federalism might be responding to globalization. Part II develops the argument that globalization as such has no strong implications for domestic constitutional law. The remainder of the Article examines the U.S. constitutional response to the aspect of globalization revealed in Crosby, and argues that the Court's decision in Crosby is in tension with its other federalism decisions. But, the Article argues, that tension arises not from the fact that Crosby arises …

Regulatory Takings And "Judicial Supremacy", J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

The thesis of this Article is that the Court of Federal Claims and the Court of Appeals for the Federal Circuit have become exposed to this classic critique of constitutional decision-making through the recent expansions of the regulatory takings doctrine. Though the chief agent for this expansion has been the Supreme Court, these lower courts have made their own prominent contributions to broadening regulatory takings, and they are far more vulnerable to political reprisals. Like the Due Process Clause in the gilded age, the Takings Clause today can easily be and has been seen as an avenue for inappropriate judicial …

The Canon(S) Of Constitutional Law: An Introduction, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

Any discipline has a canon, a set of themes that organize the way in which people think about the discipline. Or, perhaps, any discipline has a number of competing canons. Is there a canon of constitutional law? A group of casebook authors met in December 1999 to discuss the choices they had made - what they had decided to include, what to exclude, what they regretted excluding (or including), what principles they used in developing their casebooks. Most of the authors were affiliated with law schools, but some had developed coursebooks for use in undergraduate political science and constitutional history …

A Report Card On The Impeachment: Judging The Institutions That Judged President Clinton, Susan Low Bloch

Georgetown Law Faculty Publications and Other Works

Now that we have lived through one of the most unusual events in American history-the impeachment and trial of the President of the United States-it is appropriate, indeed essential, that we assess how the process worked and learn what we can from it. Specifically, I want to address two questions: First, how well did the impeachment process work? In good academic fashion, I will grade each of the governmental institutions involved – giving them, if you will, a report card. Second, what did we learn from the experience to guide us if, in the future, we face the impeachment of …

Damage Control? A Comment On Professor Neuman’S Reading Of Reno V. Aadc, David Cole

Georgetown Law Faculty Publications and Other Works

This comment responds to an article by Professor Gerald Neuman on the Supreme Court's recent decision in Reno v. American-Arab Anti-Discrimination Committee (AADC). The Court in AADC rejected a selective prosecution claim by immigrants targeted for deportation based on First Amendment-protected activities, finding that Congress had stripped the federal courts of jurisdiction over such claims, and that in any event the Constitution does not recognize a selective prosecution objection to a deportation proceeding. Professor Neuman argues that the decision should not be read as implying that aliens have less First Amendment protection than citizens, and that the decision can …

Should Lucas V. South Carolina Coastal Council Protect Where The Wild Things Are? Of Beavers, Bob-O-Links, And Other Things That Go Bump In The Night, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

Lucas v. South Carolina Coastal Council is one of several recent Supreme Court decisions in which the Court used the Just Compensation Clause as a "weapon of reaction" to strike down an offending land use restriction. In Lucas, the target of the Court's animus was a state law prohibiting a landowner from developing two beachfront lots. The South Carolina Supreme Court upheld the law as a legitimate exercise of the State's police power to protect the public from harm in the face of a takings challenge by the landowner. The U.S. Supreme Court rejected the South Carolina court's talismatic …

Escaping The Expression-Equality Conundrum: Toward Anti-Orthodoxy And Inclusion, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

In this article, Professor Hunter questions the naturalness and inevitability of the dichotomy in constitutional law between freedom of expression and the right to equality. She places the origin of this doctrinal divergence in the history of American social protest movements in the first half of the twentieth century, which began with ideologically-based claims and shifted to a primary emphasis on identity-based equality claims. During the interim period between World War I and World War I, the wave of seminal First Amendment cases was ebbing and the wave of equality claims was beginning to swell. Close examination of the constitutional …

Expressive Identity: Recuperating Dissent For Equality, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

Constitutional law has made a mess of the relationship between expression and equality. Much of the time, the two claims exist in sharp conflict, as in recent Supreme Court cases involving hate speech' and the effort by a gay and lesbian group to march in a St. Patrick's Day parade. In those cases, equality claims collided head-on with defenses based on a First Amendment right to express anti-equality values. In other instances, such as debates about whether viewpoint diversity can serve as a justification for affirmative action, or whether race-conscious redistricting can serve as a proxy for political interests under …

Impeachment As Congressional Constitutional Interpretation, Neal K. Katyal

Georgetown Law Faculty Publications and Other Works

Constitutionalists have assumed, too quickly in my view, that symmetry should exist between the interpretive styles of the courts and Congress. This assumption, which I shall call the myth of interpretive symmetry, slights the many reasons why an interpretive method may work well in one area and not work as well in another. Instead of mapping out all these possible divergences, I illustrate the point with three examples: the roles of history, precedent, and moral philosophy. I show how, in each instance, arguments can be made to suggest that divergent institutional roles should be taken into account in formulating a …

The Public And Private Lives Of Presidents, Neal K. Katyal

Georgetown Law Faculty Publications and Other Works

Focusing on a frequent theme in the executive privilege arguments advanced by the Clinton Administration, Neal Kumar Katyal explores the distinction drawn between the public and private lives of the President, particularly in the Paula Jones and Monica Lewinsky cases. He argues that the Administration's difficulties in asserting executive privilege claims following these cases demonstrate that the public/private distinction is not entirely valid He asserts that, unlike members of Congress who have time when they are not in session, the President is unique in that he is in office twenty-four hours a day. He argues that this special constitutional status …

Thinking About The Constitution At The Cusp, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

What do I mean in saying that we need to think about the Constitution "at the cusp?" I have in mind an image in which we have one way of thinking about the Constitution on one side of a line, and another way of thinking about the Constitution on the other. My sense is that we may have crossed such a line quite recently. I believe that we may be in a new constitutional order, different from the New Deal-Great Society constitutional order that existed from 1937 to sometime in the 1980s. If so, those of us who have been …

Writing Off Race, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

The constitutionality of affirmative action has now become one of the central topics in the politics of race. Ironically, the United States Constitution says absolutely nothing about affirmative action. The text never mentions the term, and the equal protection language in the Fourteenth Amendment simply begs the question of whether equality requires or precludes the use of affirmative action. The intent of the Framers is similarly unhelpful. We know that the drafters of the Fifth Amendment owned slaves, and the drafters of the Fourteenth Amendment envisioned a racially stratified society. But the Fourteenth Amendment was itself an affirmative action measure, …

Are There Nothing But Texts In This Class? Interpreting The Interpretive Turns In Legal Thought, Robin West

Georgetown Law Faculty Publications and Other Works

Allan Hutchinson remarks at the beginning of his interesting article that Gadamer's writings have had only a peripheral influence on legal scholarship -- only occasionally cited, and then begrudgingly so, and never given the serious attention they deserve or require. Nevertheless, Hutchinson acknowledges, Gadamerian influences can be noted -- particularly in the now widely shared understanding that adjudication is, fundamentally, an interpretive exercise. Even with this qualification, though, I think Hutchinson understates Gadamer's impact. Whatever may be true of Gadamer's influence in other disciplines, his influence in law has been unambiguously both broad and deep -- although it has come …

Copyright As A Model For Free Speech Law: What Copyright Has In Common With Anti-Pornography Laws, Campaign Finance Reform, And Telecommunications Regulation, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

Copyright raises real and troubling free speech issues, and standard responses to those concerns are inadequate. This Article aims to put copyright in the context of other free speech doctrine. Acknowledging the link between copyright and free speech can help determine the proper contours of a copyright regime that both allows and limits property rights in expression, skewing the content of speech toward change.

Is Progressive Constitutionalism Possible?, Robin West

Georgetown Law Faculty Publications and Other Works

Progressivism is in part a particular moral and political response to the sadness of lesser lives, lives unnecessarily diminished by economic, psychic and physical insecurity in the midst of a society or world that offers plenty. This insecurity is unjust and should end; the suffering should be alleviated, and those lives should be enriched. To do so must be one of the goals of a morally just or justifiable state. Not all suffering and not all lesser lives, of course, give rise to such a response. The suffering attendant to accident, disease, war and happenstance is neither entirely chargeable to …

The Richness Of Contract Theory, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

This essay is a review of The Richness of Contract Law: An Analysis and Critique of Conemporary Theories of Contract Law by Robert A. Hillman (1997).

Throughout the book, Hillman offers a number of useful insights about various issues of contract law and theory--as he has in his numerous law review articles--but in this review the author is concerned with his overall theme: a general skepticism about "unifying" or "highly abstract" contract theories that fail to mirror the richness of contract law. In this regard, Hillman stands in the "realist" tradition of the previous generation of contracts scholars. Hillman attempts …

An Originalism For Nonoriginalists, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

The received wisdom among law professors is that originalism is dead, having been defeated in intellectual combat sometime in the eighties. According to this story, Edwin Meese and Robert Bork proposed that the Constitution be interpreted according to the original intentions of its framers. Their view was trounced by many academic critics, perhaps most notably by Paul Brest in his widely-cited 1980 Boston University Law Review article, The Misconceived Quest for Original Understanding, and by H. Jefferson Powell in his 1985 Harvard Law Review article, The Original Understanding of Original Intent. Taken together, these and other articles represent …

The Warren Court And The Concept Of A Right, David Luban

Georgetown Law Faculty Publications and Other Works

The Warren Court is dead. None of its Justices remain on the benchindeed, only Justice White survives-and the recent history of the Supreme Court has been in large part a history of repudiating controversial Warren Court doctrines. Public opinion likewise repudiates Warren-style judicial activism, and constitutional scholarship-which as recently as the mid- 1980s consisted in considerable measure of theoretical defenses for Warren Court-inspired methods of interpreting the Bill of Rights-has grown increasingly skeptical of expansive interpretive strategies. It is quite possible that future constitutional historians will regard the Warren era as an aberration. The Warren Court, after all, was not …

Laughing At Treaties, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

This article responds to two articles by Professor John Yoo appearing in the same volume. Professor Yoo maintains that treaties, either categorically or presumptively, have the same status in the United States as in the United Kingdom, where they lack the force of domestic law, and hence are not judicially enforceable, until implemented by statute. This response argues that Yoo's thesis contradicts the text of the Constitution, which declares treaties to be the 'law of the land.' The response notes, further, that Professor Yoo's reliance on the ratification debates to read the Supremacy Clause's reference to treaties out of the …