Weak-Form Judicial Review and Core Civil Liberties

In this Essay, I want to unearth some subordinated strands in the Rehnquist Court\u27s free speech jurisprudence. For example, the Rehnquist Court allowed Congress to regulate campaign finance in ways subject to credible First Amendment objections, and to impose obligations on cable television systems that would almost certainly be unconstitutional were they imposed on newspapers. These decisions, I suggest, do not rest simply on the kind of deference to legislative judgment that fits comfortably into a system of strong-form review. Rather, they represent what I call a managerial model of the First Amendment, which accords legislatures a large role in setting rules that, in the judges\u27 eyes, aim to maximize either the amount or the diversity of views disseminated through society. The managerial model exemplifies what I call weak-form judicial review, a form of judicial review in which judges\u27 rulings on constitutional questions are expressly open to legislative revision in the short run

Marbury v. Madison Around the World

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 particular elements into an overall system that is nearly unique in the world

Thinking About the Constitution at the Cusp

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 teaching constitutional law for a long time may find ourselves in the position of law professors in 1938 and 1939, whose way of thinking about the Constitution was developed in the 1920s: we are intimately familiar with a whole raft of cases that simply do not have much to do with the Constitution in this new constitutional order. A law professor who said in 1940 that the farm program at issue in Wickard v. Filburn would be unconstitutional under the standards the Court used in the 1920s might have been right, but his statement would also have been profoundly irrelevant. I sometimes have the same feeling about critical comments about the Supreme Court\u27s recent work: the criticisms are that the Court\u27s current actions are not what the Court would have done ten years ago, and that the Court\u27s actions are inconsistent with the way most law professors have come to understand the Constitution. This criticism may be true enough, but it is perhaps profoundly irrelevant

Non-commutative Stone duality: inverse semigroups, topological groupoids and C*-algebras

We study a non-commutative generalization of Stone duality that connects a class of inverse semigroups, called Boolean inverse $\wedge$-semigroups, with a class of topological groupoids, called Hausdorff Boolean groupoids. Much of the paper is given over to showing that Boolean inverse $\wedge$-semigroups arise as completions of inverse semigroups we call pre-Boolean. An inverse $\wedge$-semigroup is pre-Boolean if and only if every tight filter is an ultrafilter, where the definition of a tight filter is obtained by combining work of both Exel and Lenz. A simple necessary condition for a semigroup to be pre-Boolean is derived and a variety of examples of inverse semigroups are shown to satisfy it. Thus the polycyclic inverse monoids, and certain Rees matrix semigroups over the polycyclics, are pre-Boolean and it is proved that the groups of units of their completions are precisely the Thompson-Higman groups $G_{n,r}$. The inverse semigroups arising from suitable directed graphs are also pre-Boolean and the topological groupoids arising from these graph inverse semigroups under our non-commutative Stone duality are the groupoids that arise from the Cuntz-Krieger $C^{\ast}$-algebras.Comment: The presentation has been sharpened up and some minor errors correcte

New Forms of Judicial Review and the Persistence of Rights - And Democracy-Based Worries

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 long run lead constitutional systems back to wither judicial or legislative supremacy

The Canon(s) of Constitutional Law: An Introduction

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 courses. Each participant was asked to write a short paper describing the canon of constitutional law, either as reflected in his or her choices, or in the range of materials available in the field. What do coursebook authors\u27 reflections on their choices show about the canon(s) of constitutional law? In my view, three themes pervaded our discussions, and many of the papers that follow. A crude classification is that one theme involves the focus of the constitutional law canon, another involves the canon\u27s substance, and the third involves the audience for constitutional law studies

Referring to Foreign Law in Constitutional Interpretation: An Episode in the Culture Wars

As Judge Messitte\u27s essay demonstrates, recent references in Supreme Court decisions to non-U.S. legal materials have generated a great deal of controversy. Those who make such references say that doing so is no big deal. I have called the controversy a tempest in a teapot. My topic here is the disjuncture between the perception on one side that something important and troubling has happened - or, as I will argue, may be about to happen - and the perception on the other that there is nothing to be concerned about. After describing in Section I the practice that has given rise to the controversy, I examine in Section II one feature of the controversy that, I believe, has not yet been addressed in detail: The target of criticism is not really what Justices of the Supreme Court have done, but rather what they might do. I then argue that the fact that the target is an imagined practice rather than the real one is a clue to the nature of the controversy. The controversy, I conclude in Section III, is a skirmish in the ongoing culture wars over the courts. The claims made against and for references to non-U.S. law in constitutional interpretation ought to be analyzed as cultural artifacts rather than as arguments, that is, in terms of the reasons given against and for the practice

Some Legacies of Brown v. Board of Education

The litigation campaign against segregation that culminated in Brown v. Board of Education\u27 remains an important subject of study. Brown continues to be controversial because Americans remain uncertain about what its substantive commitments were, and, perhaps more important, how those commitments, as we now understand them, fit together with the other values and institutions that provide the structure of contemporary politics. This Essay will follow up on three aspects of the litigation campaign preceding Brown in an effort to show how Brown and its legacy illuminate enduring features of the organization of the U.S. political system

Defending Korematsu?: Reflections on Civil Liberties in Wartime

According to Justice William J. Brennan, After each perceived security crisis ended, the United States has remorsefully realized that the abrogation of civil liberties was unnecessary. But it has proven unable to prevent itself from repeating the error when the next crisis came along. This Article examines that observation, using Korematsu as a vehicle for refining the claim and, I think, reducing it to a more defensible one. Part I opens my discussion, providing some qualifications to the broad claim about threats to civil liberties in wartime. Part II then deals with Korematsu and other historical examples of civil liberties in wartime. It identifies a pattern in those examples and provides a sketch of a social theory that might account for the pattern. Part III describes, in relatively optimistic terms, a process of social learning in which past examples of what come to be understood as incursions on civil liberties progressively reduce the scope of civil liberties violations in wartime. Part IV raises jurisprudential questions about the role of emergency powers in liberal constitutions. In the end, I defend Korematsu in the perhaps ironic sense that Korematsu was part of a process of social learning that both diminishes contemporary threats to civil liberties in our present situation and reproduces a framework of constitutionalism that ensures that such threats will be a permanent part of the constitutional landscape