Constitutional Law Commons^™

Forms Of Constitution Making And Theories Of Democracy, Andrew Arato

Cardozo Law Review

There are those who still think that constitution making is a task that rests wholly within the realm of lawyers. Indeed, all constitutional texts in modem times have been drafted by lawyers. Behind the texts, however, are the most important political actors and forces of a given society, persuading some interpreters to take the view that constitution making represents the work of the political, of political politics, and of le pouvoir constituant. In such a conception, whoever holds the "constituent power," or acts in its name, hires the lawyers. But does the method of constitution making really matter? Either …

The Journey Into Activism, Bernhard Schlink

Cardozo Law Review

In Anna Karenina, Leo Tolstoy teaches us that all happy families are alike and only unhappy families are different. It is the same with courts that engage in constitutional review. All happy constitutional courts, that is, all happily activist constitutional courts are alike and only those that do not play an activist role are different.

The United Kingdom, The European Court Of Human Rights, And Constitutional Review, A. W. Bradley

Cardozo Law Review

The aim of this Article is to consider whether there is now in the United Kingdom the embryo of a procedure for constitutional review that results from the United Kingdom's adherence to the European Convention on Human Rights as well as the burgeoning case law being developed by the European Court of Human Rights. To the extent that such an embryo exists, I hope to show that this is a development which has not been directly willed by the United Kingdom Parliament, nor by successive United Kingdom governments. Assuming that this process deserves to be described as piecemeal constitution making, …

Constitutional Justice And Democracy, Michel Troper

Cardozo Law Review

The issue of the compatibility of constitutional justice and democracy is considered in a particular way in France, for reasons relating both to the history of the legal culture and tothe peculiarities of the Constitutional Council, the institution which reviews the constitutionality of legislation.

“A One Way Ticket To Palookaville”: Supreme Court Takings Jurisprudence After Dolan And Its Implication For New York City’S Waterfront Zoning Resolution, Jill Illan Berger Inbar

Cardozo Law Review

This Note will use the Waterfront Ordinance as a vehicle for examining the new heightened scrutiny standard introduced in Dolan. Part I provides an overview of takings jurisprudence and the traditional pre-Nollan and pre-Dolan standards, which were applied to determine whether an exercise of police power oversteps its bounds and interferes with private property rights guaranteed under the Fifth Amendment. Part II reviews the new standards espoused by the Supreme Court in Nollan and Dolan. Part III describes the purpose of New York City's 1993. Waterfront Zoning Ordinance and discusses its history, objectives, and provisions. Part …

William Gardiner Hammond And The Lieber Revival, Paul D. Carrington

Cardozo Law Review

Francis Lieber's Legal and Political Hermeneutics was first published in serial form in 1837. Jacksonian populism was then at high water and American judges and lawyers were acknowledged as politicians. Interpretation of legal texts was seen as a political activity. His work was so well received that a hard cover edition was published in 1839.

The edition presented in this issue was prepared by William Gardiner Hammond in 1880. Jacksonian politics were then in retreat before a rising tide of technocratic professionalism. Many lawyers and judges were disowning the political mission of American law and aspiring to be technocrats. To …

"Fetch Some Soupmeat", William N. Eskridge Jr.

Cardozo Law Review

Although first published over 150 years ago, Francis Lieber's Legal and Political Hermeneutics remains broadly influential, and the soupmeat hypothetical in particular has been reproduced in the most widely read twentieth-century legal texts for teaching statutory interpretation. The directive, "fetch some soupmeat," seems straightforward in most situations, because the housekeeper and the servant are operating under the same assumptions, and because their shared assumptions are borne out as the servant goes about his task. Lieber's project-and the project of any sophisticated theoretical treatment of statutory interpretation-was to explore the many ways in which "fetch some soupmeat" proves susceptible to surprising …

The Limits Of Lieber, Lawrence Lessig

Cardozo Law Review

Texts are transportable. They move. Because written, they are carried. Because carried, they are read-in different places and at different times. Nothing (save the loss of the original language or the original text) can stop this semiotic peripateticism. If you write it, it will roam.

Benjamin Nathan Cardozo The Teacher, Joseph W. Bellacosa

Cardozo Law Review

The forty-seventh Cardozo Memorial Lecture, delivered in memory of Benjamin N. Cardozo at the House of the Association on November 9, 1994.

The Alleged Unaccountability Of The Academic: A Biographical Sketch Of Carl Schmitt, Manfred H. Wiegandt

Cardozo Law Review

In recent years, especially after the breakdown of the Soviet bloc, we have witnessed numerous attempts to establish viable democratic structures in states formerly in the tight grip of dictatorially ruling elites, be it in the countries of the former Communist bloc, at the African Cape, or in Latin America. The questions that concern people in these regions above all are how their systems can be made strong enough to survive the economic crises that go along with establishing democratic frameworks and how the states can ensure the necessary coherence to survive on the background of a lingering challenge by …

The Identity Of The Constitutional Subject, Michel Rosenfeld

Cardozo Law Review

The identity of the constitutional subject is elusive and problematic as uncontroverted foundations are hard to come by in contemporary constitutional regimes. The notion of the constitutional subject is itself ambiguous because it is not clear whether it refers to those subject to the constitution, or to the makers of the constitution, or to the subject matter of the constitution. Moreover, even if the who or what of the constitutional subject were settled, the concept of constitutional identity would still be fraught with difficulties. Not only is constitutional identity likely to change over time, but it is also likely to …

National Socialism And Constitutional Law: Carl Schmitt, Otto Koellreutter, And The Debate Over The Nature Of The Nazi State, 1993-1937, Peter Caldwell

Cardozo Law Review

On January 30, 1933, President von Hindenburg named Adolf Hitler chancellor of the German Republic. One year later, the conservative (and by then National Socialist) constitutional lawyer, Carl Schmitt noted that Hitler's chancellorship was an event that had "already led beyond the Weimar Constitution." But where had the seizure of power led? What was the nature of the new constitution of the German Empire? As historian David Schoenbaum has noted, 1933 was a kind of "constitutional no man's land"; it was unclear how the principles enumerated in the Nazi Party Program of 1920 would translate into the reality of the …

The Religious Freedom Restoration Act: Letting The Fox Into The Henhouse Under Cover Of Section 5 Of The Fourteenth Amendment, Marci A. Hamilton

Cardozo Law Review

The Religious Freedom Restoration Act ("RFRA") has now been in effect for over a year. RFRA is an understandable, but unconstitutional, attempt to supplement the contemporary Supreme Court's crabbed reading of the Free Exercise Clause. In a nutshell, RFRA sets the standard of review-the "compelling interest" test-to be applied to federal and state law burdening the free exercise of religious conduct. RFRA has already been employed to decide a series of cases, most of which were brought by prison inmates. The time rapidly approaches when the courts of appeals, and even the Supreme Court, will be asked to pass on …

“Now The Machine Runs Itself”: Carl Schmitt On Hobbes And Kelsen, David Dyzenhaus

Cardozo Law Review

Carl Schmitt claimed that the fundamental distinction of politics is the distinction between friend and enemy. That distinction, he said, has to be put on a substantive basis, which, in the era of the nation state, he supposed must amount to an idea of the homogeneity of the people. Since liberal democracy is opposed to this kind of substance, Schmitt argued that liberalism cannot make the distinction between friend and enemy. It thus cannot defend itself against its enemies. It is no wonder that he remains the leading theorist of fascism.

Girls Lean Back Everywhere: The Law Of Obscenity And The Assault On Genius By Edward De Grazia, Robert M. O'Neil

Cardozo Law Review

Such a headline from the 1990s reminds American readers that, however shameful may have been the treatment of obscenity and pornography in the United States during the past one hundred years, things could have been worse. Even so, the record here is hardly a source of pride-nor does the story have an altogether happy ending, if it has one at all. Yet it is a story that badly needs to be told, and never has it been better told than by Edward de Grazia in Girls Lean Back Everywhere.

Looking For Rights In All The Wrong Places: Resolving Custody Disputes In Divorce Proceedings, Katherine Hunt Federle

Cardozo Law Review

Eleven-year-old Shane P. left the office of his court-appointed law guardian in tears. Already upset by the escalating custody battle between his divorcing parents, Shane told his father that he wanted to "get rid of" his law guardian and subsequently sent her a letter notifying her that she was fired. Influenced, in part, by the case of Gregory K., Shane then retained the services of another attorney with funds provided by his father. Although the trial judge initially ruled that only the court could dismiss the law guardian who had been appointed to represent Shane's best interests, the judge subsequently …

Models Of The Opinion Function Of The Attorney General: A Normative, Descriptive, And Historical Prolegomenon, John O. Mcginnis

Cardozo Law Review

The judiciary is not the only branch of government that offers authoritative constructions of the Constitution and other federal laws. Since the beginning of the Republic, the executive branch has made formal pronouncements on constitutional and statutory issues of such a substantial scope and variety that they rival the opinions of the Supreme Court. A public recording of the executive branch's most authoritative legal voice is contained in forty-three volumes of published opinions of the Attorney General and sixteen volumes of published opinions of the Office of Legal Counsel ("OLC")-the office to which the Attorney General now delegates the great …

Executive Autonomy, Judicial Authority And The Rule Of Law: Reflections On Constitutional Interpretation And The Separation Of Powers, Michel Rosenfeld

Cardozo Law Review

The United States Constitution is remarkably silent on the subject of ultimate responsibility for constitutional interpretation, despite its elaborate prescriptions for a scheme of separation of powers that interweaves elements of independence and of interdependence among the distinct branches of the federal government. It is hardly surprising, therefore, that there have been several disputes between the President and the Supreme Court concerning the scope of executive autonomy in constitutional interpretation. In recent years, moreover, the conflict between judicial authority and executive autonomy has been exacerbated by efforts to legitimize presidential interpretations of the Constitution that are inconsistent with Supreme Court …

The Unitary Executive In A Unified Theory Of Constituional Law: The Problem Of Interpretation, Geoffrey P. Miller

Cardozo Law Review

Among theoretical issues in the area of federal separation of powers, the status of the Unitary Executive may be the most controversial: To what extent does the Constitution establish the President as a national chief executive with ultimate authority over activities of national administration? In this paper, I propose a model of the Unitary Executive which differs in some respects from prior work, including my own work on independent agencies, which I now view as incomplete. The model is grounded in a unified theory of constitutional law-i.e., a theory that includes issues both of rights and of structure within a …

Ways To Think About The Unitary Executive: A Comment On Approaches To Government Structure, Michael Fitts

Cardozo Law Review

Over the past few years public law debates have invariably focused on the relative significance of legal institutions as expressed in formal legislative and administrative structures versus everyday politics in the resolution of policy questions. This emphasis has been particularly evident in the examination of the appropriate structure and distribution of responsibility for administrative decision making, in general, and presidential authority versus agency autonomy, in particular.

Attorney General's Remarks, Benjamin N. Cardozo School Of Law, November 15, 1992, William P. Barr

Cardozo Law Review

While the modem Attorney General is active in a broad array of policy decisions and legal matters, this evening we are concerned only with what was once the core of the Attorney General's duties: legal interpretation within the executive branch. First, I would like to trace the evolution of the office of Attorney General from part-time legal advisor for the new government to head of a major department involved in making policy across a broad range of subjects. Second, I want to discuss the Attorney General's role in interpreting the law, both in rendering legal advice to the executive branch …

Imposing Unified Executive Branch Statutory Interpretation, Michael Herz

Cardozo Law Review

Since the birth of the administrative state, the dominant legal debate about the fourth branch has concerned the powers of the other three to control it. In recent years, the particular focus has been on presidential oversight, in part as a result of the increasingly systematic efforts of every President since Richard Nixon to gain control of the federal bureaucracy. This enormous, and in general, illuminating literature has tended, I think, to overlook two aspects of the problem.

The Merryman Power And The Dilemma Of Autonomous Executive Branch Interpretation, Michael Stokes Paulsen

Cardozo Law Review

Most everybody today concedes some degree of executive branch autonomy in the interpretation of federal law. The examples most frequently given of areas of executive interpretive autonomy involve situations where the President interprets the law incident to the exercise of those constitutional powers that are thought to be exclusively presidential (and thus unreviewable by the courts), such as the pardon and the veto. The President may grant a pardon (it is generally conceded) on legal grounds rejected by the courts. For example, he may issue a pardon based on his opinion that a conviction was unconstitutional, notwithstanding the judiciary's contrary …

Seqra’S Too Valuable To Trash: A Reply To Stewart Sterk, Philip Weinberg

Cardozo Law Review

No abstract provided.

Hatching The Egg: A Child-Centered Perspective On Parents' Rights, Barbara Bennett Woodhouse

Cardozo Law Review

No abstract provided.

The Constitution Outside The Courts, Frederick A.O. Schwarz Jr.

Cardozo Law Review

The forty-fourth Cardozo Lecture, delivered in memory of Benjamin N. Cardozo at the House of the Association on December 5, 1991.

An Enriched Economic Model Of Political Patronage And Campaign Contributions: Reformulating Supreme Court Jurisprudence, Richard L. Hasen

Cardozo Law Review

No abstract provided.

Strange Bedfellows: Two Paradoxes In Constitutional Discourse Over Corporate And Individual Political Activity, Andrew Stark

Cardozo Law Review

No abstract provided.

A New Birth Of Constitutionalism: Genetic Influences And Genetic Defects, Louis Henkin

Cardozo Law Review

No abstract provided.

Constitutionalism And Revolution, Stanley N. Katz

Cardozo Law Review

No abstract provided.