415,876 research outputs found

    Lower Courts and Constitutional Comparativism

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    The issue of constitutional comparativism has been a topic of significant commentary in recent years. However, there is one aspect of this subject that has been almost completely ignored by scholars: the reception, or lack thereof, of constitutional comparativism by state and lower federal courts. While the Supreme Court\u27s enthusiasm for constitutional comparativism has waxed and now waned, lower state and federal courts have remained resolutely agnostic about this new movement. This is of tremendous practical significance because over ninety-nine percent of all cases are resolved by lower state and federal courts. Accordingly, if the lower courts eschew constitutional comparativism, then this constitutes the rejection of a comparative interpretive methodology in virtually all cases. This article examines this issue in consideration of the related opinions of two leading constitutional law scholars, David Fontana (who favors the use of comparative material in lower courts) and Vicki Jackson (who opposes it)

    Reverse Incorporation of State Constitutional Law

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    State supreme courts and the United States Supreme Court are the independent and final arbiters of their respective constitutions, and may therefore take different approaches to analogous state and federal constitutional issues. Such issues arise often, because the documents were modeled on each other and share many of the same guarantees. In answering them, state courts have, as a matter of practice, generally adopted federal constitutional doctrine as their own. Federal courts, by contrast, have largely ignored state constitutional law when interpreting the federal constitution. In McDonald v. Chicago, to take only the most recent example, the Court declined to adopt the state courts’ near-unanimous conclusion that the proper standard of review for regulations of the “individual” right to bear arms is intermediate scrutiny. In an age of growing international comparativism, this lack of intranational borrowing is striking, especially since state constitutions served as the template for the federal constitution and generally protect the same rights as are found in the federal Bill of Rights. In a constitutional system that claims to be committed to federalism and respect for the states, why is it that state constitutional law has had such a slight impact on federal constitutional doctrine? This Article seeks to answer that question, and suggests that in certain circumstances federal courts should look to state constitutional law when faced with analogous federal constitutional controversies

    The Authoritarian Impulse in Constitutional Law

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    Should there be greater participation by legislators and citizens in constitutional debate, theory, and decision-making? An increasing number of legal theorists from otherwise divergent perspectives have recently argued against what Paul Brest calls the principle of judicial exclusivity in our constitutional processes. These theorists contend that because issues of public morality in our culture either are, or tend to become, constitutional issues, all political actors, and most notably legislators and citizens, should consider the constitutional implications of the moral issues of the day. Because constitutional questions are essentially moral questions about how active and responsible citizens should constitute themselves, we should all engage in constitutional debate. We should stop relying on the courts to shoulder the burden of resolving the constitutional consequences of our political decisions. According to this argument, our methods of resolving moral issues in this country are deeply flawed. The flaw is that we have delegated to the courts, rather than kept for ourselves, the moral responsibility for our decisions. By protecting, cherishing, and relying upon judicial review, we have essentially alienated our moral public lives to the courts. I agree with Brest that our methods of resolving issues of public morality in this culture are deeply flawed, but I view with skepticism both the diagnosis--insufficient community participation in constitutional processes--and the cure--increased community participation in constitutional processes--suggested by the participation theorists. The call for increased participation in constitutional thought rests on the assumptions that constitutional questions are moral questions, and that constitutional debate is the forum in which we engage in moral decision-making. From these assumptions it follows that all citizens, not just courts, should take up issues of constitutionalism. If we take very seriously the text of the opinions in a significant number of recent constitutional cases, however, it is clear that as a descriptive matter, the assumption that constitutional questions are moral questions is flatly false. According to the Justices themselves, constitutional issues are by definition legal issues, as opposed to moral issues. Countless neutral principles constitutional theorists as well insist upon making a distinction between constitutional issues and moral issues. Thus, according to a well-respected strand of constitutional theory, as well as an increasing number of recent cases, constitutional questions are definitionally amoral, as are the answers they propose

    The Pros and Cons of Politically Reversible Semisubstantive Constitutional Rules

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    Most observers of constitutional adjudication believe that it works in an all-or-nothing way. On this view, the substance of challenged rules is of decisive importance, so that political decision makers may resuscitate invalidated laws only by way of constitutional amendment. This conception of constitutional law is incomplete. In fact, courts often use so-called “semisubstantive” doctrines that focus on the processes that nonjudicial officials have used in adopting constitutionally problematic rules. When a court strikes down a rule by using a motive-centered or legislative-findings doctrine, for example, political decision makers may revive that very rule without need for a constitutional amendment. For such an effort to succeed, however, those decision makers must comply with special, deliberation-enhancing procedural requirements crafted by courts to ensure that constitutional concerns receive fair attention in the lawmaking process. Is semisubstantive review legitimate and sensible? In this Article, the author disentangles—and then responds to—each of ten critiques that judges and scholars have directed at semisubstantive decision making. While acknowledging that most of these critiques have some merit, the author concludes that courts should continue to deploy semisubstantive doctrines as one, but not the only, tool of constitutional review. This approach, it is argued, serves a worthy aim. It protects constitutional values in a meaningful way, while taking due account of the salience of republican self-rule

    Against Textualism

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    Modern textualists have assumed that careful attention to constitutional text is the key to the recovery of the Constitution\u27s original public meaning. This article challenges that assumption by showing the importance of nontextual factors in early constitutional interpretation. The Founding generation consistently relied on structural concerns, policy, ratifiers\u27 and drafters\u27 intent, and broad principles of government. To exclude such nontextual factors from constitutional interpretation is to depart from original public meaning because the Founders gave these factors great weight in ascertaining meaning. Moreover, for a modern judge seeking to apply original public meaning, the threshold question is not simply; How did the Founding generation think the Constitution should be interpreted? ; rather, it should be: How did the Founding generation think courts should interpret the Constitution? The early caselaw shows that courts aggressively used the federal Constitution and state constitutions to protect the power and autonomy of courts and juries; federal courts also closely circumscribed state powers when they appeared to violate the federal Constitution or implicated federal powers or other states. Outside of these areas, courts were wholly deferential. This caselaw indicates, then, that, for a modern court, recovering original meaning necessitates a central focus on structural concerns--protecting juries, courts, and the national government--rather than text

    Constitutionalism Outside the Courts

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    This essay is a chapter to be included in the forthcoming Oxford Handbook on the U.S. Constitution. Using the actions of Arkansas Governor Orville Faubus during the Little Rock crisis of 1957 and the U.S. Supreme Court’s subsequent decision in Cooper v. Aaron as a lens, it explores constitutional interpretation and enforcement by extrajudicial institutions. I explore the critique of Cooper’s notion of judicial supremacy by departmentalists like Walter Murphy, empirical scholars skeptical of judicial efficacy like Gerald Rosenberg, and popular constitutionalists like Larry Kramer and Mark Tushnet. I also consider four distinct institutional forms of extrajudicial constitutional interpretation and enforcement: protection of constitutional values through political processes and checks and balances; the role of social movements in shaping constitutional meaning; resolution of particular constitutional controversies in the political branches through processes of “constitutional construction”; and the role of “administrative constitutionalism.” The critique of judicial supremacy and the analysis of extrajudicial interpretation and enforcement have had a salutary impact in broadening the horizons of constitutional law. To the extent that theories of constitutionalism outside the courts are used to go further and attack judicial review, however, I find them less persuasive. One need not believe in judicial supremacy to value the courts’ ultimate settlement function in litigated constitutional controversies. If the Constitution is to continue to act as an external constraint on political action, then constitutionalism outside the courts can never be wholly autonomous of constitutionalism inside

    Disagreement and Interpretation

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    The question of what weight--if any--courts should give to elected government resistance to court decisions is examined. A principle is sought that explains why courts should not consider local resistance when deliberating on constitutional questions

    McKithen v. Brown: Due Process and Post-Conviction DNA Testing

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    When the Second Circuit decided McKithen v. Brown, it joined an ever-growing list of courts faced with a difficult and pressing issue of both constitutional and criminal law: is there a federal constitutional right of post-conviction access to evidence for DNA testing? This issue, which sits at the intersection of new forensic technologies and fundamental principles of constitutional due process, has divided the courts. The Second Circuit, wary of reaching a hasty conclusion, remanded McKithen’s case to the district court for consideration. The district court for the Eastern District of New York was asked to decide whether a constitutional right of access to evidence for DNA testing exists both broadly as well as under the defendant’s circumstances. This iBrief concludes that although a due process post-conviction right of access to evidence for DNA testing may exist under some circumstances, it does not exist under current constitutional jurisprudence in McKithen’s case

    A Dollar for Your Thoughts: Determining Whether Nominal Damages Prevent an Otherwise Moot Case from Being an Advisory Opinion

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    This Note examines whether nominal damages should sustain an otherwise moot constitutional claim. A majority of circuit courts have held that a lone claim for nominal damages is sufficient. A minority of circuit courts have determined that nominal damages are insufficient because there is no practical effect in determining such a case. The courts in the minority analogize nominal damages to declaratory judgments and justify their rulings on the basis of judicial economy. This Note proposes that the minority rule is impermissible under current precedent from the U.S. Supreme Court. However, this Note also proposes that the majority rule be adjusted slightly to address the concerns and criticisms of the minority rule. This Note argues that courts should scrutinize the lone claim for nominal damages and require that plaintiffs allege a specific incident of constitutional deprivation to ensure that there is an ongoing case and controversy. Finally, this Note suggests that the Supreme Court provide more guidance to federal courts on the doctrine of mootness

    What Makes for More or Less Powerful Constitutional Courts?

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    It is sometimes suggested that one or another constitutional or supreme court (for example, the U.S., Indian, or German) is the “most powerful in the world.” And yet it is often far from clear what the measure of power is or should be, what the sources of judicial power are under the given measure, and what explains why some courts are more powerful than others. Is strength mostly a function of formal powers, so that, for example, a court with the authority to invalidate a constitutional amendment on substantive grounds is ipso facto more powerful than one that may only invalidate statutes, which in turn is more powerful than a court that can do neither? Yet, both the U.S. and Japanese supreme courts are in this middle category; indeed they have roughly similar sets of legal powers overall, but while the former is often considered among the most powerful courts in the world, the latter is often considered among the weakest. Thus, it seems clear that formal powers do not tell the whole story, but what part do they play, if any, and what else helps to fill in the picture? Although looking to how courts actually use their legal powers is obviously also relevant, it too falls short. For what we are additionally in search of are factors that help to explain why, for example, the U.S. and Japanese courts use their powers in such different ways. This Article seeks to shed light on all three parts of the uncertainty: the measure; sources; and explanation of judicial power. It begins by proposing that the proper measure of the power of a constitutional court is its consequential nature as an institutional actor in terms of affecting the outcomes of important constitutional and political issues. Although more diffuse and harder to quantify, this conception of judicial power is more inclusive and realistically nuanced than commonly employed uni-dimensional alternatives, such as international influence or strike-down rate. The Article next argues that the consequential nature of a constitutional court is a function of three broad variables: formal rules and powers, legal and judicial practice, and the immediate electoral and political context in which it operates. Through a process of mutual interaction, each of these three helps to shape and constitute the more specific components of a court’s institutional power, which include the nature, scope, and content of the constitution it enforces, the jurisdictional and remedial powers it has and employs, the ease or difficulty of constitutional amendment, and its composition and tenure. Moving from measuring to explaining the strength or weakness of constitutional courts, the Article next identifies and discusses three explanatory variables: deliberate constitutional design choices, legal culture, and general or structural political context. The Article concludes with case studies of the supreme courts of India and Japan that illustrate the role and interaction of these multidimensional evidentiary and explanatory factors
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