Constitutional Law Commons^™

Toward A New Constitutional Anatomy, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

There is an important sense in which our Constitution's structure is not what it appears to be--a set of activities or functions or geographies, the 'judicial" or the "executive" or the "legislative" power, the "truly local and the truly national. "Indeed, it is only if we put these notions to the side that we can come to grips with the importance of the generative provisions of the Constitution: the provisions that actually create our federal government; that bind citizens, through voting, to a House of Representatives, to a Senate, to a President, and even, indirectly, to a Supreme Court. In …

The Proper Scope Of The Police Power, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In this Article, I will contend that the Constitution is not really silent at all on the proper scope of state powers; that the original meaning of what the Constitution says requires that state powers over their citizens have fairly easy to identify limits - though as with most constitutional provisions, applying these limits to particular cases requires judgment and is not a matter of strict deductive logic. This account will require me to briefly review the method of interpretation I advocate - original meaning originalism-and its limits. These limits require that interpretation of original meaning be implemented by means …

Aliens, The Internet, And "Purposeful Availment": A Reassessment Of Fifth Amendment Limits On Personal Jurisdiction, Wendy Collins Perdue

Georgetown Law Faculty Publications and Other Works

This Article first considers the Fourteenth Amendment cases and argues that the constitutional limits on the jurisdictional authority of state courts reflect a view about the limits of state authority. It then turns to the Fifth Amendment and, after considering the practices of other nations and lessons from prescriptive jurisdiction, argues that the United States's sovereign authority should allow it to assert personal jurisdiction solely on the basis of effects in the United States, without a requirement of "purposeful availment." It further argues that concerns about reasonableness should be addressed at the subconstitutional level. This Article is built on two …

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 …

Lessons From A Story Untold: Nike V. Kasky Reconsidered, David C. Vladeck

Georgetown Law Faculty Publications and Other Works

The Supreme Court's recent dismissal, apparently on jurisdictional grounds, of the writ of certiorari it had granted to review Nike, Inc. v. Kasky has brought into sharp focus a number of critiques of the commercial speech doctrine - some new, some longstanding. At issue in Nike were communications Nike made to customers, newspaper editors, college presidents and athletic directors, and others responding to allegations that Nike had engaged in, or was complicit in, the mistreatment of foreign workers. Respondent Marc Kasky contended that Nike's communications contained significant misstatements of fact and thus were actionable under California's unfair competition and false …

Constitutional Hardball, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

For the past several years I have been noticing a phenomenon that seems to me new in my lifetime as a scholar of constitutional law. I call the phenomenon constitutional hardball. This Essay develops the idea that there is such a practice, that there is a sense in which it is new, and that its emergence (or re-emergence) is interesting because it signals that political actors understand that they are in a position to put in place a new set of deep institutional arrangements of a sort I call a constitutional order. A shorthand sketch of constitutional hardball is this: …

The Effect Of The United States Supreme Court's Eleventh Amendment Jurisprudence On Clean Water Act Citizen Suits: Muddied Waters, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

This Article focuses on the impact of the Court's Eleventh Amendment jurisprudence on citizen suits authorized under the Clean Water Act (CWA), because that law's cooperative federalism structure is typical of many other environmental laws, and because citizen suits have historically played a critical role in its implementation. The CWA's citizen suit provision (section 505), which specifically incorporates the Eleventh Amendment, has brought on citizen suits the full force and effect of the Court's current state sovereign immunity jurisprudence. The prevailing wisdom is that the Court's state sovereign immunity jurisprudence will not bar CWA citizen suits brought to enforce federal …

Copy This Essay: How Fair Use Doctrine Harms Free Speech And How Copying Serves It, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

Defenders of transformative uses have invoked the First Amendment to bolster claims that such uses should not be subject to the copyright owner’s permission. But this focus on transformation is critically incomplete, leaving unchallenged much of copyright’s scope, despite the large number of nontransformative copying activities that are also instances of free speech. The current debate leaves the way open for expansions of copyright that, while not targeted at dissenting viewpoints, nonetheless may have a profoundly negative effect on freedom of speech. In other words, transformation has limited our thinking about the free speech interests implicated by copying. This essay …

Sunsetting Judicial Opinions, Neal K. Katyal

Georgetown Law Faculty Publications and Other Works

Contemporary constitutional law, in its quest for judicial restraint, has primarily focused on "the how" of judging - what interpretive methods will constrain the decisionmaker? This Article, by contrast, focuses on the "when"- if there are reasons to think that today's judicial decisions might later prove to be problematic, then are there methods that alter the timing of those decisions' impact to produce better outcomes? This Article outlines one new method for judicial decisionmaking in the post-9/11 world. Informed by pervasive legislative practices, I contend that the Supreme Court should prospectively declare that some of its national security opinions will …

The Secret Life Of The Political Question Doctrine, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

"Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court."

The irony, of course, is that Marbury v. Madison, itself, "made" a political question, and the answer the Court gave was deeply political as well. As everyone reading this essay knows, the case arose out of a bitter political controversy, and the opinion for the Court was a carefully crafted political document - "a masterwork of indirection," according to Robert McCloskey's well-known characterization, "a brilliant example of Chief Justice Marshall's capacity to sidestep danger while seeming …

The Threat To Constitutional Academic Freedom, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

Since the late 1980s, the academic authority of colleges and universities has been subjected to continuing blasts of criticism. Culture warriors portray decayed institutions where sixties radicals have seized control and terrorize students and the few remaining honest faculty with demands for political conformity or bewilder them with incomprehensible theorizing. Some valid criticisms by these writers can be gleaned among their towering hyperbole and tendentious accusations. But the overall effect has been to paint for the broader public an alarming, misleading picture of intolerance and cant. The prevalence of this picture, however false it may be, imperils the constitutional autonomy …

Was The Right To Keep And Bear Arms Conditioned On Service In An Organized Militia?, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

This essay is a review of The Militia and the Right to Arms, or, How the Second Amendment Fell Silent by H. Richard Uviller & William G. Merkel (2002).

Those who deny that the original meaning of the Second Amendment protected an individual right to keep and bear arms on a par with the rights of freedom of speech, press and assembly no longer claim that the amendment refers only to a collective right of states to maintain their militias. Instead, they now claim that the right, although belonging to individuals, was conditioned on service in an organized militia. With …

War Everywhere: Rights, National Security Law, And The Law Of Armed Conflict In The Age Of Terror, Rosa Ehrenreich Brooks

Georgetown Law Faculty Publications and Other Works

Both international and domestic law take as a basic premise the notion that it is possible, important, and usually fairly straightforward to distinguish between war and peace, emergencies and normality, the foreign and the domestic, the external and the internal. From an international law perspective, the law of armed conflict is triggered only when a armed conflict actually exists; the rest of the time, other bodies of law are applicable. Domestically, U.S. courts have developed a constitutional and statutory jurisprudence that distinguishes between national security issues and domestic questions, with the courts subjecting government actions to far less scrutiny when …

Out Of Bounds, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

Lawrence v. Texas creates a crisis for inclusive constitutionalism. Too often, advocates of inclusion and tolerance wish to include only those ideas and groups with which they agree. The test for true inclusion and tolerance, however, is whether we are willing to protect groups when they engage in conduct of which we disapprove. It follows that the boundaries of inclusion cannot be established simply by moral argument; yet, any plausible version of constitutional law must use some method to bound the people and activity that it protects. Defenders of inclusive constitutionalism have not been successful in identifying a method, independent …

Interpreting Constitutions Comparatively: Some Cautionary Notes, With Reference To Affirmative Action, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

It has now become the conventional wisdom that many justices on the United States Supreme Court are thinking about the relevance of comparative constitutional law to the interpretation of the United States Constitution. An emerging conservative critique of doing so questions the democratic legitimacy of the practice. I believe that those questions are badly formed, but that other questions are worth raising about the (perhaps) emerging practice. In this comment I identify some reasons for caution about the use of transnational comparative law in interpreting domestic constitutions. Some reasons are institutional, others arise from the doctrinal context within which particular …

Judicial Review In The United States And In The Wto: Some Similarities And Differences, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

Among international organizations, the World Trade Organization (WTO) is widely credited with having the most effective dispute settlement system. Its highly developed dispute settlement system, which is one of the few in international law to include a standing appellate body, invites comparisons to the institution of judicial review in the United States under the paradigm of Marbury v. Madison. Such a comparison yields insights about both the WTO dispute settlement system and Marbury-style judicial review. This article first notes an important parallel between the two systems: like the WTO, judicial review in the United States began as the …

The Original Meaning Of The Judicial Power, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In this paper, the author refutes any claim that judicial review was invented in Marbury v. Madison, or that, because it is contrary to the original meaning of the Constitution, it must be justified by some nonoriginalist interpretive methodology. He will do so, not by discerning the shadowy and often counterfactual "intentions" of the founding generation, but by presenting as comprehensively as he can what the founders actually said during the constitutional convention, in state ratification conventions, and immediately after ratification. These statements, taken cumulatively, leave no doubt that the founders contemplated judicial nullification of legislation enacted by the …

The Priority Of Morality: The Emergency Constitution's Blind Spot, David Cole

Georgetown Law Faculty Publications and Other Works

Three aspects of Bruce Ackerman’s thesis, which is a proposal to legitimate the practice of suspicionless preventive detention during emergencies, are discussed in this essay—its premises, its efficacy, and its morality. Part I critiques three of Ackerman’s premises—his underestimation of courts and overestimation of legislatures as guardians of liberty, his misguided belief that the supermajoritarian escalator provides a one-size-fits-all solution to the conundrum of emergency powers, and his contention that the short-lived character of emergencies makes it sensible to cede to a minority of our popular representatives control over critically important and largely unpredictable decisions concerning the appropriate duration of …

The Aretaic Turn In Constitutional Theory, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

The author argues that the aretaic turn in constitutional theory is an institutional approach to theories of constitutional interpretation ought to be supplemented by explicit focus on the virtues and vices of constitutional adjudicators. Part I, The Most Dysfunctional Branch, advances the speculative hypothesis that politicization of the judiciary has led the political branches to exclude consideration of virtue from the nomination and confirmation of Supreme Court Justices and to select Justices on the basis of the strength of their commitment to particular positions on particular issues and the fervor of their ideological passions.

Part II, Institutionalism and Constitutional …

Response To State Action And A New Birth Of Freedom, Robin West

Georgetown Law Faculty Publications and Other Works

I have just a few comments. The first comment is a contribution to the ''analytic" question posed by Professor Black's work and made explicit by Professors Peller and Tushnet's paper. To make the case for the constitutional status of welfare rights, I do not think it is sufficient-although it may well be necessary-to show that the "state action" problem is merely a pseudo-problem, whatever the reason for finding it not to be a problem. I do not agree with one of the claims put forward by Peller and Tushnet,' that Black's perceptive analysis of the state action problem in his …

Lbj's Ghost: A Contextual Approach To Targeting Decisions And The Commander In Chief, James E. Baker

Georgetown Law Faculty Publications and Other Works

The moral imperative and relevance of the Law of Armed Conflict (“LOAC”) is more apparent today than before September 11, 2001. Law distinguishes democratic societies from the terrorists who attack them; nowhere is this more apparent than in the methods and means of warfare. Indeed, part of our revulsion and contempt for terrorism lies in the terrorists' indiscriminate, disproportionate, and unnecessary violence against civilians. In contrast, the enduring strength of the LOAC is its reliance on the principles of proportionality, necessity, and discrimination, which protect civilians and minimize combatant suffering. For these reasons, we should not begrudge the LOAC's limitations …

Suing The Federal Government: Sovereignty, Immunity, And Judicial Independence, Vicki C. Jackson

Georgetown Law Faculty Publications and Other Works

As I suggest below in Part I, federal sovereign immunity was a doctrine of limited effect in the early years of this republic and allowed for a number of remedies for governmental wrongdoing. Moreover, the constitutional provenance of federal "sovereign immunity" is obscure, and was a matter of genuine uncertainty in early years. Over time the doctrine developed, drawing support from some aspects of constitutional architecture as well as from unreasoning and mistaken extensions of other versions of "sovereign immunity." Among the strands of constitutional structure behind federal "sovereign immunity" are Congress' powers over appropriations and the jurisdiction of the …

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 …

Eldred And Lochner: Copyright Term Extension And Intellectual Property As Constitutional Property, Paul M. Schwartz, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

Since the ratification of the constitution, intellectual property law in the United States has always been, in part, constitutional law. Among the enumerated powers that Article I of the Constitution vests in Congress is the power to create certain intellectual property rights. To a remarkable extent, scholars who have examined the Constitution's Copyright Clause have reached a common position. With striking unanimity, these scholars have called for aggressive judicial review of the constitutionality of congressional legislation in this area. The champions of this position--we refer to them as the IP Restrictors--represent a remarkable array of constitutional and intellectual property scholars. …

The Imperative Of Natural Rights In Today's World, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

If there is any group that really needs to understand the concept of natural rights, it is professors of constitutional law. The document they teach was written by a generation who uniformly believed in natural rights, used the concept to justify a violent revolution from their mother country, and professed their continued commitment to natural rights long after the separation—a commitment that only intensified in the years that culminated in the Civil War and the adoption of the Fourteenth Amendment.

Yet few constitutional law professors know much, if anything, about this fundamental concept even as a historical matter, much less …

Looking Ahead: The Future Of Affirmative Action, Susan Low Bloch

Georgetown Law Faculty Publications and Other Works

Fifty years after Brown v. Board of Education, race is still a serious issue in this country. Fortunately, we no longer debate whether it is legal for the government to operate segregated schools or to treat blacks as second-class citizens. We finally answered that question correctly—it is unconstitutional for the law to segregate and to treat blacks worse than whites.

Today, we face the more difficult question of ascertaining the constitutionality of “affirmative action” or “benign discrimination” programs. The Supreme Court first addressed this issue in 1978 in the landmark case Regents of the University of California v. Bakke …

Non-Judicial Review, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

Professor Mark Tushnet challenges the view that democratic constitutionalism requires courts to dominate constitutional review. He provides three diverse examples of non-judicial institutions involved in constitutional review and examines the institutional incentives to get the analysis" right." Through these examples, Professor Tushnet argues that non-judicial actors may perform constitutional review that is accurate, effective, and capable of gaining public acceptance. Professor Tushnet recommends that scholars conduct further research into non-judicial review to determine whether ultimately more or less judicial review is necessary in constitutional democracies.

Tom Paine's Constitution, Robin West

Georgetown Law Faculty Publications and Other Works

In Common Sense, our brief for the American Revolution, the pamphleteer Tom Paine famously declared that “in America the law is king.” What, precisely, is the “law” that Paine declared to have dethroned the king? Does the phrase, penned by the advocate not only of our revolution but also of the rights of man everywhere, presage our modern practice of rights-based constitutionalism? This reading – in America, constitutional law is king – might also make Paine an early friend of judicial review, as he was unquestionably also a friend of United States constitutionalism, both federal and state. Paine’s manifesto can …

Are Foreign Nationals Entitled To The Same Constitutional Rights As Citizens?, David Cole

Georgetown Law Faculty Publications and Other Works

Are foreign nationals entitled only to reduced rights and freedoms? The difficulty of the question is reflected in the deeply ambivalent approach of the Supreme Court, an ambivalence matched only by the alternately xenophobic and xenophilic attitude of the American public toward immigrants. On the one hand, the Court has insisted for more than a century that foreign nationals living among us are "persons" within the meaning of the Constitution, and are protected by those rights that the Constitution does not expressly reserve to citizens. Because the Constitution expressly limits to citizens only the rights to vote and to run …

Remarks Of Seth P. Waxman At The Memorial Observance For Justice Byron R. White, United States Supreme Court, Seth P. Waxman

Georgetown Law Faculty Publications and Other Works

Members of the Court, members of the family, and friends of Justice White- Alone among today's speakers, I met Justice White only late in his life. Growing up in the law, my relationship with him was the one many kids today have with Michael Jordan - I wanted to be "like White" -like the kind of man he was. I still have that aspiration. Like Byron White, I served in the Department of Justice and was altered forever by that honorable institution. And - like Justice White, in my own lesser way, I strove within the walls of this institution …