The Elysian Fields of the Law

IF 4.9 1区 社会学 Q1 Social Sciences
K. M. Sullivan, Pamela S. Karlan
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引用次数: 3

Abstract

In Democracy and Distrust and War and Responsibility, John Hart Ely advanced a participation-oriented, representation-reinforcing approach to judicial review that addressed problems of entrenchment, discrimination, and legislative delegation. This essay, which was written as the foreword to a symposium honoring Ely held at Stanford Law School in April 2004, discusses four recent Supreme Court decisions that map onto the central preoccupations in Ely's work: McConnell v. Federal Election Commission; Lawrence v. Texas; Vieth v. Jubelirer; and Hamdi v. Rumsfeld. McConnell raises important questions about how the Court ought to approach campaign finance legislation, given cross-cutting concerns with problems of entrenchment. While there are anti-entrenchment arguments on both sides of the debate over campaign finance reform, we suggest that, given the way in which Ely's anti-entrenchment theory focused on incumbent holders of government power, courts should be especially wary of restrictions that limit the speech of challengers. Lawrence offers an intriguing variation on judicial protection of discrete and insular minorities. Ely was a harsh critic of substantive due process. While the Court's opinion rests as a formal matter on substantive due process, rather than equal protection, a close reading suggests that Lawrence gives perhaps the first known Elysian reason for a substantive due process ruling: that it was necessary to invalidate a discriminatory law as if it applied to all persons in order to prevent the aftereffects of discrimination that would linger if it were not. Vieth shows how questions of political gerrymandering lie at the intersection of Ely's concerns with entrenchment and discrimination. While the Supreme Court has seen political gerrymandering as a species of discrimination, the larger problem is one of entrenchment, rather than the mistreatment of discrete and insular groups. The problem with the contemporary approach is not just that it is factually ill grounded: whatever else may be the case, it is hard to view the adherents of the two major political parties as discrete and insular minorities incapable of protecting themselves and victimized by prejudice. Rather, the problem is that the failure to recognize the issue as one of entrenchment can actually exacerbate political channel clogging and undercut effective and accountable representation. Finally, Hamdi confronts the question of how judicial review can reinforce congressional responsibility with respect to the use of military force and the protection of civil liberties given a world in which our most threatening enemies are no longer other nations. We show how War and Responsibility fleshes out one of the often-overlooked sections of Democracy and Distrust - its proposal to revive some version of the nondelegation doctrine - as a tool for ensuring accountability in decisions regarding the decision to go to war and identify echoes of Ely's theory in the three opinions in Hamdi that reject the government's sweeping assertion of executive power.
法律的极乐世界
在《民主与不信任》和《战争与责任》一书中,约翰·哈特·伊利提出了一种以参与为导向、强化代表权的司法审查方法,以解决堑壕、歧视和立法授权等问题。这篇文章是作为2004年4月在斯坦福大学法学院举行的纪念伊莱的研讨会的前言而写的,讨论了最近最高法院的四个判决,这些判决反映了伊莱工作中的核心问题:麦康奈尔诉联邦选举委员会;劳伦斯诉德克萨斯州案;维思诉朱贝利;以及哈姆迪诉拉姆斯菲尔德。麦康奈尔提出了一些重要的问题,即最高法院应该如何处理竞选财务立法,考虑到对壕沟问题的交叉关注。虽然在竞选资金改革的辩论中,双方都有反对壕沟的论点,但我们认为,鉴于伊利的反壕沟理论关注的是政府权力的现任掌权者,法院应该特别警惕限制挑战者言论的限制。劳伦斯在司法保护离散和孤立的少数群体方面提供了一个有趣的变化。伊利是实质性正当程序的严厉批评者。虽然法院的意见是关于实质性正当程序的正式问题,而不是平等保护,但仔细阅读就会发现,劳伦斯可能是已知的第一个关于实质性正当程序裁决的极乐世界理由:有必要使歧视性法律无效,就好像它适用于所有人一样,以防止歧视的后遗症,如果它不适用,就会持续存在。维思展示了政治上不公正地划分选区的问题是如何在伊利对壕沟和歧视的关注的交叉点上出现的。虽然最高法院认为政治上的不公正划分选区是一种歧视,但更大的问题是一种壕沟,而不是对离散和孤立群体的虐待。当代方法的问题不仅在于它缺乏事实依据:无论其他情况如何,都很难将两大政党的追随者视为孤立的、孤立的少数群体,他们无法保护自己,并受到偏见的伤害。相反,问题在于,未能认识到这个问题是一个堑壕问题,实际上可能加剧政治渠道堵塞,削弱有效和负责任的代表。最后,哈姆迪面对的问题是,在一个我们最具威胁的敌人不再是其他国家的世界里,司法审查如何加强国会在使用军事力量和保护公民自由方面的责任。我们展示了《战争与责任》如何充实了《民主与不信任》中经常被忽视的部分之一——它提议恢复某种版本的非授权原则——作为一种工具,以确保在决定是否参战的决策中负责任,并在哈姆迪的三个观点中发现了伊利理论的回声,这些观点反对政府对行政权力的全面主张。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
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CiteScore
4.80
自引率
2.00%
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0
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