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

A Decent Respect to the Opinions of Mankind : Referring to Foreign Law to Express American Nationhood

Why might a court refer to non-U.S. law? Justice Stephen Breyer\u27s pragmatic defense of the practice is probably the most widely known, as are its defects. Here, I want to sketch a counterintuitive explanation for the practice. Referring to non-U.S. law in Supreme Court opinions might be a way in which Supreme Court Justices participate in the dissemination of a distinctively American self-understanding. By this I do not mean that Justices who refer to non-U.S. law necessarily endorse the (reasonable) interpretive theory that the U.S. Constitution instantiates universally true propositions of political morality. Rather, I mean that references to non-U.S. law might be a way of ensuring that the United States helps lead the world\u27s nations to a better way of governing themselves and their peoples

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

Shut Up He Explained

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, in turn, to ensure that nondomination prevails in political society. The courts might seem a promising alternative. Part II of this Commentary examines the contemporary Supreme Court\u27s participation in our constitutional conversations. After noting the ways in which the Court might be seen as a voice in the wilderness, speaking to no one but itself, I raise questions about the need for judicial participation in a conversation structured by the Constitution. Part II concludes with a more extended discussion of the contemporary Supreme Court as an institution that seeks to dominate its conversational partners. Resolving the controversies over what constitutes an appropriate condition of nondomination through the courts would require that the Court itself renounce the authoritarianism it has lately exhibited. My own view is that American constitutionalism has developed to the point where such a renunciation is extremely unlikely. But one can always hope

When Is Knowing Less Better than Knowing More? Unpacking the Controversy over Supreme Court Reference to Non-U.S. Law

My goal in this Essay is simply to lay out the criticisms of the use of non-U.S. law in constitutional interpretation, so as to identify what might be correct (not much, in the end) in those criticisms. I discuss criticisms based on theories of interpretation, on the claim that reference to non-U.S. law is merely decoration playing no role in generating outcomes, on the role the Constitution has in expressing distinctively American values, and on the proposition that judges are unlikely to do a good job in understanding - and therefore in referring to - non-U.S. law. This last quality-control criticism has some validity, as does one version of the expressivist criticism, but only when they are formulated much more carefully than they have been in prior discussions of the issue

Meet the New Boss : The New Judicial Center

A document entitled ‘Guidelines on Constitutional Litigation’ published in 1988 by the Reagan era Department of Justice is the springboard for Professor Tushnet\u27s discussion of the Supreme Court\u27s 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. The discussion begins by viewing the Guidelines\u27 characterization of Supreme Court jurisprudence as an indication of the Court\u27s old center. The discussion then examines the Court\u27s subsequent development to reach an understanding of the Court\u27s new center. Professor Tushnet finds that although the Court at times seemed to entertain some views espoused by the Guidelines, the present Court\u27s center is remarkably like the Court\u27s center in 1988. Original understanding remains only one method of constitutional interpretation -not even the most important one - and legislative history continues to play a role in statutory interpretation. Furthermore, changes in Court\u27s jurisprudence involving standing, unenumerated rights, and congressional power remain limited (though there appear to be greater constitutional protections of property rights). The only notable difference is that the present Court has developed doctrines that could swing constitutional interpretation toward the approach taken by the Guidelines should newly appointed Justices want to endorse that approach. But for now the current Court is much the same as before