Constitutional Law Commons^™

Political Bargaining And Judicial Intervention In Constitutional And Antitrust Federalism, Jim A. Rossi

Vanderbilt Law School Faculty Publications

Federal judicial deference to state and local regulation is at the center of contentious debates regarding the implementation of competition policy. This Article invokes a political process bargaining framework to develop a principled approach for addressing the appropriate level of judicial intervention under the dormant commerce clause and state action immunity from antitrust enforcement. Using illustrations from network industries, it is argued that, at core, these two independent doctrines share a common concern with political (not only market) failure by focusing on the incentives faced by powerful stakeholders in state and local lawmaking. More important, they share the common purpose …

The Coherentism Of Democracy And Distrust, Michael C. Dorf

Cornell Law Faculty Publications

No abstract provided.

Judicial Review Without Judicial Supremacy: Taking The Constitution Seriously Outside The Courts, James E. Fleming

Faculty Scholarship

Larry Sager and Larry Kramer have written important books that, in quite different ways, call for taking the Constitution seriously outside the courts. Sager's Justice in Plainclothes' and Kramer's The People Themselves2 nonetheless join issue in significant ways, and therefore it is illuminating to analyze them as a pair.

To get a handle on the differences between the two Larrys' books, I have concocted the following fanciful hypothetical. Imagine a law school with a faculty that includes Ronald Dworkin: court-centered constitutional theorist extraordinaire and proponent of a liberal moral reading of the American Constitution.3 Further imagine that the faculty includes …

The Unfulfilled Promise Of The Constitution In Executive Hands, Cornelia T.L. Pillard

Michigan Law Review

Many leading constitutional scholars now argue for greater reliance on the political branches to supplement or even supplant judicial enforcement of the Constitution. Responding to our national preoccupation with the judiciary as the mechanism of constitutional enforcement, these scholars stress that the executive and legislature, too, bear responsibility to think about the Constitution for themselves and to take steps to fulfill the Constitution's promise. Joining a debate that goes back at least as far as Marbury v. Madison, current scholars seek to reawaken the political branches to their constitutional potential, and urge the Supreme Court to leave the other …

Just Blowing Smoke? Politics, Doctrine, And The Federalist Revival After Gonzales V. Raich, Ernest A. Young

Faculty Scholarship

No abstract provided.

The Jacksonian Makings Of The Taney Court, Mark A. Graber

Faculty Scholarship

Many twentieth century commentators regard the willingness of Taney Court majorities to declare laws unconstitutional as proof that the justices on that tribunal adjured Jacksonian partisanship upon taking the bench. Old Republicans during the 1820s fulminated against judicial review of state legislation and sought to repeal Section 25 of the Judiciary Act of 1787, but they were apparently frustrated by a Taney Court which continued imposing contract clause and dormant commerce clause limits on state power. This paper demonstrates that Jacksonians in office supported judicial power. Jacksonian animus was more directed at McCulloch v. Maryland than either Marbury v. Madison …

"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. …

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.

Why You Should Read My Book Anyhow: A Reply To Trevor Morrison, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Authors rarely have the opportunity to respond to their reviewers in the same issue in which the review is published, so I am grateful to the Cornell Law Review for inviting me to do so and to Trevor Morrison for graciously agreeing. I am also appreciative of the respectful tone that Professor Morrison employs in his comments on a book with which he so obviously disagrees. Coming from a critic, the positive qualities he attributes to Restoring the Lost Constitution: The Presumption of Liberty are especially significant. Yet he does disagree with me, which means that I disagree with him, …

Judicial Review Before Marbury, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

While scholars have long probed the original understanding of judicial review and the early judicial review case law, this article presents a study of the judicial review case law in the United States before Marbury v. Madison that is dramatically more complete than prior work and that challenges previous scholarship on the original understanding of judicial review on the two most critical dimensions: how well judicial review was established at the time of the Founding and when it was exercised. Where prior work argues that judicial review was rarely exercised before Marbury (or that it was created in Marbury), …

Constitutionalization, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

Students of constitutional law tend to suspect pretty early on that the Constitution simply means whatever the Supreme Court says that it means. Rather than fight that intuition, I think it is best to treat the student insight as one of the basic starting assumptions when teaching a course in Constitutional Law. The goal then becomes to help students figure out how best to maneuver and feel comfortable in a legal universe where the Constitution has only contingent meaning.

What the Supreme Court does when it clothes its political policy preferences in the garb of constitutional law can be described …

The Statutory President, Kevin M. Stack

Vanderbilt Law School Faculty Publications

American public law has no answer to the question of how a court should evaluate the president's assertion of statutory authority. In this Article, I develop an answer by making two arguments. First, the same framework of judicial review should apply to claims of statutory authority made by the president and federal administrative agencies. This argument rejects the position that the president's constitutional powers should shape the question of statutory interpretation presented when the president claims that a statute authorizes his actions. Once statutory review is separated from consideration of the president's constitutional powers, the courts should insist, as they …

The Unfulfilled Promise Of The Constitution In Executive Hands, Cornelia T. Pillard

Georgetown Law Faculty Publications and Other Works

Many leading constitutional scholars now argue for greater reliance on the political branches to supplement or even supplant judicial enforcement of the Constitution. Responding to our national preoccupation with the judiciary as the mechanism of constitutional enforcement, these scholars stress that the executive and legislature, too, bear responsibility to think about the Constitution for themselves and to take steps to fulfill the Constitution's promise. Joining a debate that goes back at least as far as Marbury v. Madison, current scholars seek to reawaken the political branches to their constitutional potential, and urge the Supreme Court to leave the other branches …

Questioning Deference, Christina E. Wells

Faculty Publications

This article examines the accepted axiom that courts should defer to the government's actions during national security crises even when such actions potentially violate citizens' constitutional rights. The paper questions two assumptions underlying that axiom - first, that executive officials are best equipped to determine when security needs justify liberty infringements and, second, that judges are particularly unqualified to meddle in security issues, even when civil liberties are involved. Relying on psychological theories regarding the role that fear plays in skewing risk assessment and historical analyses of past crises, the paper argues that times of crisis lend themselves to unnecessary …

Hong Kong Right Of Abode: Ng Siu Tung & (And) Others V. Director Of Immigration - Constitutional And Human Rights At The Mercy Of China, Teresa Martin

San Diego International Law Journal

This Comment argues that the Court's refusal to sidestep the Standing Committee's reinterpretation using either the Doctrine of Legitimate Expectation, or the judgments previously rendered clause in the Basic Law, signifies its capitulation to the Standing Committee, and its inability to protect constitutional rights and/or human rights in Hong Kong. This Comment will first give a brief background on the concept of one country, two systems and the drafting of the basic law. Second, it will introduce the Right of Abode cases, and explain the constitutional crisis of 1999. Third, it analyzes Ng Siu Tung & Others v. Director of …

Lords Of Democracy: The Judicialization Of "Pure Politics" In The United States And Germany, Russell A. Miller

Washington and Lee Law Review

No abstract provided.

Putting The Democracy In Democracy And Distrust: The Coherentist Case For Representation Reinforcement, Michael C. Dorf

Cornell Law Faculty Working Papers

No abstract provided.

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: …

Judicial Review And Diversity, Deseriee A. Kennedy

Scholarly Works

No abstract provided.

The Political Origins Of The New Constitutionalism, Ran Hirschl

Indiana Journal of Global Legal Studies

Globalization, Courts, and Judicial Power Symposium

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 …

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 …

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 …

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 …

Marbury V. Madison As The First Great Administrative Law Decision, Thomas W. Merrill

Faculty Scholarship

Marbury v. Madison is our foremost symbol of judicial power. Not only is the decision regarded as the root of judicial authority to strike down statutes as violating the Constitution; it is also taken to mean that "the federal judiciary is supreme in the exposition of the Constitution." In other words, Marbury has come to stand for the proposition that courts should enforce their own understanding of the meaning of the Constitution, without deferring or even paying much attention to the views of the other branches.

I will not in this essay engage in yet another analysis of Marbury's …

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 …

Public Ruses, James E. Krier, Christopher Serkin

Articles

The public use requirement of eminent domain law may be working its way back into the United States Constitution. To be sure, the words "public use" appear in the document-and in many state constitutions as well, but the federal provision applies to the states in any event-as one of the Fifth Amendment's limitations on the government's inherent power to take private property against the will of its owners. (The other limitation is that "just compensation" must be paid, of which more later.) Any taking of private property, the text suggests, must be for public use. Those words, however, have amounted …

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" …