Local Evidence in Constitutional Interpretation

The Supreme Court frequently relies on state law when interpreting the U.S. Constitution. What is less understood is the degree and manner in which the Supreme Court and other federal courts look not to state law, but to local law. Although it has largely gone unnoticed, there is a robust practice of acknowledging and accounting for local law in the course of constitutional interpretation. To take an example, one area in which the Supreme Court has examined local enforcement patterns is in death penalty jurisprudence. In 2015, Justice Stephen Breyer, dissenting in Glossip v. Gross, cited to empirical data to raise an Eighth Amendment arbitrariness concern with geographic variation in local practice, where in a five-year period, “just 29 counties (fewer than 1% of counties in the country) accounted for approximately half of all death sentences imposed nationwide.” In other rulings, judges seek to minimize constitutional interpretations that might disrupt local law and practice. As is done with respect to states, judges take into account whether local practices are outlying or common. Judges also look to local law and practice to inform the development of constitutional norms. This Article analyzes and defends reliance on local law and practice in constitutional interpretation — not to advocate localism or deference to local government — but as evidence in constitutional interpretation. Using local evidence in constitutional law is particularly important at a time in which empirical research on county-level data is providing a wealth of information that can better inform constitutional law

Introduction to the material study of global constitutional law

The article addresses the question of how to study global constitutional law by suggesting a material methodology. Drawing from previous studies of the notion of the material constitution, both from materialist and institutionalist types (Marx, Mortati, Poulantzas), the article proposes to look at the development of global constitutional law, in its many instantiations, in terms of its relation with the state. Accounts of the autonomy of global constitutional law are requalified in terms of relative autonomy. More specifically, global constitutional law is conceived as a legal construction functional to the transformation of the contemporary state. From the perspective of the material study of constitutional law, the state is still deemed to be the main unit of analysis, but, at the same time, state-centred accounts based on an exceptionalist understanding of sovereignty are rejected as reductive and, at times, inaccurate

Local Evidence in Constitutional Interpretation

The Supreme Court frequently relies on state law when interpreting the U.S. Constitution. What is less understood is the degree and manner in which the Supreme Court and other federal courts look not to state law, but to local law. Although it has largely gone unnoticed, there is a robust practice of acknowledging and accounting for local law in the course of constitutional interpretation. To take an example, one area in which the Supreme Court has examined local enforcement patterns is in death penalty jurisprudence. In 2015, Justice Stephen Breyer, dissenting in Glossip v. Gross, cited to empirical data to raise an Eighth Amendment arbitrariness concern with geographic variation in local practice, where in a five-year period, “just 29 counties (fewer than 1% of counties in the country) accounted for approximately half of all death sentences imposed nationwide.” In other rulings, judges seek to minimize constitutional interpretations that might disrupt local law and practice. As is done with respect to states, judges take into account whether local practices are outlying or common. Judges also look to local law and practice to inform the development of constitutional norms. This Article analyzes and defends reliance on local law and practice in constitutional interpretation — not to advocate localism or deference to local government — but as evidence in constitutional interpretation. Using local evidence in constitutional law is particularly important at a time in which empirical research on county-level data is providing a wealth of information that can better inform constitutional law

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

A New Constitutionalism for Liberals?

It has been apparent for at least a decade that liberal constitutional theory is in deep trouble. Of course there are many versions of liberal constitutional theory, but they have essentially no connection to existing practices of constitutional law, considering as practices of constitutional law all the activities of our institutions of government that implicate - interpret, advance, deal with, whatever - fundamental principle. Instead, liberal constitutional theory\u27s vision of the future is nostalgia for the past. For liberal constitutional theorists the Warren Court, or Justice Brennan, basically got everything right, at least in their approach to identifying constitutional law. True, they may have faltered sometimes in implementing constitutional principles, but all that needs to be done today (or tomorrow, or after the next presidential election, or ... ) is to appoint justices in the mold of Warren, Brennan, or Thurgood Marshall. And here I really do mean all that needs to be done: No rethinking of what constitutional law is all about seems needed to liberal constitutional theorists

Difficult Questions for the Senate Minority

This column is the first in a biweekly Constitutional Connections series that will examine the constitutional implications of various topics in the news. The author, John Greabe, teaches constitutional law and related subject at the University of New Hampshire School of Law. He also serves on the board of trustees of the New Hampshire Institute for Civics Education

Substitute Arguments in Constitutional Law

In this article, I argue that that substitution is crucial to our practice of constitutional law. Of course, if one wished, one could easily extend the domain of substitution beyond these boundaries. Substitute arguments are an important aspect of law more generally and, indeed, of life. I have nonetheless chosen to limit my discussion to constitutional substitution because, I believe, overt discussion of substitution in this particular area illuminates important aspects of our constitutional regime-–aspects that substitution itself regularly obscures. To put my central point directly, I hope to show that constitutional law amounts to one, giant substitute argument

Constitutional court and constitutional economy: A study on decisions of Indonesian constitutional court

Indonesian constitutional court has the authority to determine the constitutionality of statutes. This paper focuses on the study on the decisions of the Constitutional court in judicial review cases concerning legal issues of economic system as promulgated in article 33 of the Constitution. Study on the decisions on the cases of electricity law, water law and oil and gas law shows how the Constitutional court take part in economic policy. It is argued that constitutional interpretation of judges upon the question of economy converges at the following issue: the role of state in economic system; the meaning of welfare state; and economic market and interrelation among them. However, in broader perspective, the role of constitutional court raise more general questions about the interrelations of law (constitution) and economics and the role of economic reasoning in judicial review