Constitutional Law Commons^™

A Goldilocks Account Of Judicial Review?, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

According to Professor Christopher Eisgruber, judicial review of the sort embedded in United States constitutional practice is a practical mechanism for implementing the Constitution's commitment to self-government. "The justices ... make a distinctive contribution to representative democracy" because they are "better positioned [than elected officials] to represent the people's convictions about what is right." Judges can articulate "a conception of justice with which Americans in general [can] plausibly identify themselves. "

I will focus here on two themes in Professor Eisgruber's argument. The first theme can be found in many works of constitutional theory - the construction of a strong …

The New Deal ‘Constitutional Revolution’ As An Historical Problem, Edward A. Purcell Jr.

Articles & Chapters

No abstract provided.

Introductory Remarks: The Burden Of Judicial Bypass Proceedings , Ann Shalleck

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Publicity And The Judicial Power, Daniel N. Hoffman

The Journal of Appellate Practice and Process

The judicial branch was created in order to ensure that the rule of law and not the rule of man prevailed. Judges must use reasoning and analysis to fulfill this role. Making decisions based on mere coin tosses or without giving a reason for the decision detracts from the rule of law. Issuing decisions that cannot be published or cited also detracts the judicial role of ensuring that law rules the land.

Constitutional Revolutions: A New Look At Lower Appellate Review In American Constitutionalism, Robert Justin Lipkin

The Journal of Appellate Practice and Process

Judicial review allows the Supreme Court of the United States to perform revolutionary constitutional change. The United States Courts of Appeals could also be a vehicle for revolutionary constitutional adjudication.

The Natural Rights-Based Justification For Judicial Review, James E. Fleming

Faculty Scholarship

On this panel, we are to consider questions such as "What form should constitutional interpretation by courts take in light of our aspirations to a good society?" For example, should courts engage in "moral readings" of the Constitution by elaborating abstract moral principles of liberty and equality or by making moral arguments about fostering human goods or virtues? In his paper, Justifying the Natural Law Theory of Constitutional Interpretation, Professor Michael Moore defends a sophisticated and powerful version of a moral realist or natural law answer to these questions.2 He confesses that, despite numerous criticisms, his views on the desirability …

A Funny Thing Happened On The Way To The Multiple-Choice Exam: Or, The Schoolroom Lessons From Bush V. Gore, Marcella David

Journal of Legal Education

No abstract provided.

Remanding To Congress: The Supreme Court's New ʺOn The Recordʺ Constitutional Review Of Federal Statutes, A. Christopher Bryant, Timothy J. Simeone

Faculty Articles and Other Publications

In recent years, the fate of federal statutes has increasingly turned on the contents of their formal legislative records. The Supreme Court has shown a new willingness to find statutes unconstitutional because their legislative records do not support the factual judgments that justify congressional action. In this Article, Professors Bryant and Simeone trace the development of the trend toward increased judicial scrutiny of legislative records in recent Supreme Court rulings on the constitutionality of federal statutes. They then critique the Court's new approach, arguing that it is not only inconsistent with precedent, but also fundamentally ill advised, most importantly because …

Piercing The Veil: William J. Brennan's Account Of Regents Of The University Of California V. Bakke, Lee Epstein, Jack Knight

Faculty Scholarship

No abstract provided.

What Is It Good For? War Power, Judicial Review, And Constitutional Deliberation, J. Richard Broughton

Oklahoma Law Review

No abstract provided.

Constitution-Talk And Justice-Talk, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

Inside the courts, one might distinguish between constitution-talk and justice-talk on the ground that the former, but not the latter, results in enforceable legal judgments. So, inside the courts, we might interpret the Constitution with justice in mind, but what we do is produce legally enforceable judgments. Outside the courts, however, it might seem that all we do is interpret and talk. It is not immediately obvious that cloaking justice-talk as constitution-talk outside the courts has much rhetorical force. As I will argue, the fact that invoking the Constitution outside the courts, in the course of discussing justice, does have …

Defending Congress, Seth P. Waxman

Georgetown Law Faculty Publications and Other Works

Every year the Solicitor General must decide, one case at a time, what the interests of the United States are with respect to several thousand different cases in the federal and state courts. Should the United States appeal, or seek rehearing, or petition for certiorari, or file a brief amicus curiae, or intervene? What issues should the United States raise, and what arguments should it make? How should the law be interpreted or the doctrine applied? The goal is for the United States to speak with one voice - a voice that reflects the interests of all three branches of …

Subconstitutional Constitutional Law: Supplement, Sham, Or Substitute?, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

In this brief Comment I make two points. First, the subconstitutional doctrines appear to have the advantage of allowing elected lawmakers to pursue whatever course they wish, as long as they satisfy the requirements of these subconstitutional doctrines. In practice, however, what appears to be a provisional invalidation based on subconstitutional law turns out to be - and, indeed, might be expected at the moment of decision to be - a final, unrevisable decision. Further, courts might strategically deploy these sub constitutional doctrines to avoid the sting of the charge that they are foreclosing legislative choice while effectively doing so. …

"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, …

How Democratic Are Initiatives?, Richard B. Collins

Publications

No abstract provided.

Terry Firma: Background Democracy And Constitutional Foundations, Frank I. Michelman

Michigan Law Review

Ages ago, I had the excellent luck to fall into a collaboration with Terrance Sandalow to produce a casebook now long forgotten. There could have been no more bracing or beneficial learning experience for a fledgling legal scholar (meaning me). What brought us together indeed was luck from my standpoint, but it was enterprise, too - the brokerage of an alert West Publishing Company editor picking up on a casual remark of mine as he made one of his regular sweeps through Harvard Law School. A novice law professor, I mentioned to him how much I admired a new essay …

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 …

Reducing The Overburden: The Doris Coal Presumption And Administrative Efficiency Under The Black Lung Benefits Act, Eric R. Olson

Michigan Law Review

Coal dust build-up prevents many coal miners' lungs from functioning properly. This condition, commonly referred to as black lung or pneumoconiosis, can make common activities nearly impossible. The Black Lung Benefits Act covers the cost of medical treatment for many affected miners, though procedural impediments often prevent miners from receiving care. The miner's current or former employer, when identifiable, must pay for medical care relating to the miner's black lung. Most disputes over miners' claims for medical care arise when the miner has a history of cigarette smoking and the need for medical care could arise from either coal dust …

Assessing The New Judicial Minimalism, Christopher J. Peters

All Faculty Scholarship

In this article, which has been published in slightly revised form at 100 Colum. L. Rev. 1454 (2000), I critique some recently prominent arguments for "judicial minimalism" in constitutional decisionmaking. Current minimalist arguments, I contend, are primarily "policentric," that is, focused on the role the judiciary can play in bolstering the accountability and deliberativeness of the political branches. Drawing in part on a previous article, I offer an alternative approach to minimalism that is "juricentric" - focused on the inherent democratic legitimacy of the adjudicative process and the unique competence of that process to produce decisions about individual rights. I …

Choosing Justices: A Political Appointments Process And The Wages Of Judicial Supremacy, John C. Yoo

Michigan Law Review

William H. Rehnquist is not going to be Chief Justice forever - much to the chagrin of Republicans, no doubt. In the last century, Supreme Court Justices have retired, on average, at the age of seventy-one after approximately fourteen years on the bench. By the end of the term of the President we elect this November, Chief Justice Rehnquist will have served on the Supreme Court for thirty-two years and reached the age of eighty. The law of averages suggests that Chief Justice Rehnquist is likely to retire in the next presidential term. In addition to replacing Chief Justice Rehnquist, …

Losing Faith: America Without Judicial Review?, Erwin Chemerinsky

Michigan Law Review

In the last decade, it has become increasingly trendy to question whether the Supreme Court and constitutional judicial review really can make a difference. Gerald Rosenberg, for example, in The Hollow Hope, expressly questions whether judicial review achieves effective social change. Similarly, Michael Klarman explores whether the Supreme Court's desegregation decisions were effective, except insofar as they produced a right-wing backlash that induced action to desegregate. In Taking the Constitution Away from the Courts, Mark Tushnet approvingly invokes these arguments (pp. 137, 145), but he goes much further. Professor Tushnet contends that, on balance, constitutional judicial review is harmful. He …

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 …

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 …

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, …

Indirect Constitutional Discourse: A Comment On Meese, Robert F. Nagel

Publications

No abstract provided.

Is The Clean Air Act Unconstitutional?, Cass R. Sunstein

Michigan Law Review

This Article deals with two linked questions. The first involves the future of the Clean Air Act. The particular concern is how the Environmental Protection Agency ("EPA") might be encouraged, with help from reviewing courts, to issue better ambient air quality standards, and in the process to shift from some of the anachronisms of 1970s environmentalism to a more fruitful approach to environmental protection. The second question involves the role of the nondelegation doctrine in American public law, a doctrine that shows unmistakable signs of revival. I will suggest that improved performance by EPA and agencies in general, operating in …

The Charter Of Rights And Freedoms And The Rebalancing Of Liberal Constitutionalism In Canada, 1982-1997, James B. Kelly

Osgoode Hall Law Journal

This article presents a statistical analysis of the first 352 Charter of Rights and Freedoms decisions by the Supreme Court of Canada between 1982 and 1997. The author argues that the emerging approach to Charter review by the Supreme Court of Canada has led to a rebalancing of liberal constitutionalism and to a reconciliation between Charter rights and federalism. This stands in stark contrast to the highly activist approach to Charter review detected in studies by Morton, Russell, and Withey and, to a lesser extent, by Morton, Russell, and Riddell. Several factors illustrate the rebalancing of liberal constitutionalism in Canada. …

The Origins Of Judicial Review Revisited, Or How The Marshall Court Made More Out Of Less, Gordon S. Wood

Washington and Lee Law Review

No abstract provided.

The Origins Of Judicial Review: A Historian's Explanation, Charles F. Hobson

Washington and Lee Law Review

No abstract provided.