Constitutional commentary最新文献

{"title":"Originalism and its Discontents (Plus a Thought Or Two About Abortion)","authors":"Mitchell N. Berman","doi":"10.2139/SSRN.957630","DOIUrl":"https://doi.org/10.2139/SSRN.957630","url":null,"abstract":"In Abortion and Original Meaning, Jack Balkin presents a new argument, based on his reconstruction of the principles that animated the Fourteenth Amendment, for the soundness of the result, though not the reasoning, of Roe v. Wade. That argument, however, serves the larger purpose of demonstrating why the debate between originalism and living constitutionalism rests on a false dichotomy. Once we reject the assumption that fidelity to the [constitutional] text means fidelity to original expected application, Balkin contends, we ought instead to agree that constitutional interpretation requires fidelity to the original meaning of the Constitution and to the principles that underlie the text. In maintaining such fidelity, moreover, [e]ach generation makes the Constitution their Constitution by calling upon its text and its principles and arguing about what they mean in their own time. It follows, Balkin claims, that [t]he choice between original meaning and living constitutionalism ... is a false choice. This short reply essay, to appear in a symposium devoted to Balkin's article, argues that Balkin mischaracterizes contemporary originalism and that his false choice claim cannot be maintained. Although Balkin is not alone in asserting that originalists believe that courts ought to be faithful to the originally expected applications of the constitutional text, almost no contemporary originalist theorist takes that view, and many have categorically rejected it. More important, though, is what follows once we all reject expectation originalism. Balkin's conclusion that originalism and non-originalism present a false choice rests squarely on his contention that fidelity to the Constitution requires fidelity to its original meaning and precludes contemporary interpreters from interpreting its text in accordance with other principles that the text can bear. Of course, it is precisely this claim that non-originalists deny. Yet Balkin presents precious little argument to support it, and nothing adequate to convince non-originalists that what they see as a true choice is in fact a false one. Not only is Balkin's proposed originalist method surprisingly undefended, but it seems inconsistent with his appreciation of the way that extra-judicial actors - especially social movements - shape constitutional meaning. Ironically, that understanding strongly suggests (though it does not entail) that the non-originalists have the better view of judicial constitutional interpretation. In short, this brief essay argues that, despite much in his article that is fresh and interesting, Balkin's empirical claim about the state of originalist argumentation rings false and his normative or conceptual claims about constitutional interpretation fail to persuade. The essay concludes by offering a few thoughts as well about the problem of abortion.","PeriodicalId":81001,"journal":{"name":"Constitutional commentary","volume":"24 1","pages":"383-404"},"PeriodicalIF":0.0,"publicationDate":"2008-03-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67908588","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Aggregate Harmony Metric and a Statistical and Visual Contextualization of the Rehnquist Court: 50 Years of Data","authors":"Peter A. Hook","doi":"10.2139/SSRN.987301","DOIUrl":"https://doi.org/10.2139/SSRN.987301","url":null,"abstract":"This article contains aggregated data from fifty years of the annual matrixes of justice inter-agreement for particular Supreme Court terms published by the Harvard Law Review (1956 to 2005 terms). Aggregating how often any two justices sided together on cases for a particular term relative to the amount of cases the two justices heard together allows one to derive a measure of the particular term that reflects the relative amount of agreement or disagreement for the term. This new metric, called the Aggregate Harmony Metric, allows for comparative benchmarks. For instance, the 2005 term, with an aggregate agreement of 70%, was the high water mark for agreement amongst the Court over the past 50 terms - significantly higher than the mean of 60% and the low of 50% (1970 term).Additionally, co-voting data is visualized spatially for teaching purposes. Spatial visualizations quickly convey to the viewer which justices are often in agreement, which are seldom in agreement, and which justices are outliers. In addition to providing new visualizations, the article surveys past visualizations and reporting of co-voting data. Another benefit of aggregating the Harvard Law Review's statistics for all 50 Terms (1956-2005) is the ability to see the highest and lowest voting agreement percentages between any two justices over the span of the dataset. The article contains charts of these voting superlatives. For instance, Warren and Marshall are at a 50 year high for those having decided more than 100 cases together (88%). Similarly, the polemic nature of Justice Douglas is evident in the fact that he is one of the Justices in each of the first six, lowest voting agreement percentages. Furthermore, the status of O'Connor and, to a lesser extent Kennedy, as swing voters is visually portrayed using the network graphic metaphor with nodes and edges. Metrics and visualizations go a long way towards making the tacit knowledge of expert scholars of the Court available to both law students and the general public. Data mining, statistical processing, and visualization tools with built-in layout algorithms make this possible. The field of information visualization as it relates to legal topics is still in its infancy and ripe for substantial growth.","PeriodicalId":81001,"journal":{"name":"Constitutional commentary","volume":"24 1","pages":"221-264"},"PeriodicalIF":0.0,"publicationDate":"2007-05-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67926154","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Constitutional Curiosities: a Twenty-One Question Scavenger Hunt","authors":"J. Chen","doi":"10.2139/SSRN.929012","DOIUrl":"https://doi.org/10.2139/SSRN.929012","url":null,"abstract":"This essay is intended to make the task of reading the United States Constitution a little more enjoyable. It presents twenty-one constitutional curiosities, all of which can be answered by reference to the text of the Constitution.","PeriodicalId":81001,"journal":{"name":"Constitutional commentary","volume":"23 1","pages":"139"},"PeriodicalIF":0.0,"publicationDate":"2006-09-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67891126","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"La Constitución de los Estados Unidos en Español: un servicio para el pueblo americano","authors":"J. M. Chen","doi":"10.2139/SSRN.925271","DOIUrl":"https://doi.org/10.2139/SSRN.925271","url":null,"abstract":"Yo prometo lealtad, no solo a la bandera de los Estados Unidos, sino tambien a su Constitucion, que promete libertad y justicia para todos. Por esta razon, este articulo ofrece al publico estadounidiense la traduccion oficial en espanol de la Constitucion de los Estados Unidos, anotada con un ojo hacia la ambiguedad interpretativa, la curiosidad linguistica y desconcierto entre las culturas.Among the many cultural shibboleths that distinguish conservatives from their fellow Americans, a certain disdain for the Spanish language looms large. George W. Bush, perhaps the most capable speaker of Spanish ever to serve as President, has publicly opposed the rendering of the national anthem in any language besides English, but most of all in Spanish. Scarcely a generation ago, however, the United States government actively promoted the translation of iconic texts into Spanish. For instance, the Constitutional Bicentennial Commission published a Spanish version of the Constitution.Given the sharp increase in the United States' Spanish-speaking population, this country might someday embrace the notion, pioneered by the United Nations and later embraced by the European Union, that a political system's fundamental law can be expressed in more languages than one. The possibility of placing the English and Spanish versions of the Constitution on equal footing cannot be dismissed out of hand, especially in a polity whose highest court has exhibited increasing willingness to consult foreign sources of constitutional wisdom. Out of a patriotic desire to serve our fellow Americans, I offer the United States government's official Spanish translation of the Constitution, annotated with an eye toward interpretive ambiguity, linguistic curiosity, and cross-cultural bemusement.","PeriodicalId":81001,"journal":{"name":"Constitutional commentary","volume":"28 1","pages":"347-381"},"PeriodicalIF":0.0,"publicationDate":"2006-08-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.925271","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67887050","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Presidential Signing Statements and Executive Power","authors":"C. Bradley, E. Posner","doi":"10.2139/SSRN.922400","DOIUrl":"https://doi.org/10.2139/SSRN.922400","url":null,"abstract":"A recent debate about the Bush administration's use of presidential signing statements has raised questions about their function, legality, and value. We argue that presidential signing statements are legal and that they provide a useful way for the president to disclose his views about the meaning and constitutionality of legislation. Although President Bush has challenged more statutory provisions in signing statements than prior administrations have, his signing statements are similar in many respects to the signing statements issued by prior presidents, such as President Clinton. In addition, basic tenets of positive political theory suggest that signing statements do not undermine the separation of powers or the legislative process and that, under certain circumstances, they can provide relevant evidence of statutory meaning.","PeriodicalId":81001,"journal":{"name":"Constitutional commentary","volume":"23 1","pages":"307-364"},"PeriodicalIF":0.0,"publicationDate":"2006-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.922400","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67883625","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Taxes, Conscience, and the Constitution","authors":"S. Smith","doi":"10.2139/SSRN.803544","DOIUrl":"https://doi.org/10.2139/SSRN.803544","url":null,"abstract":"It was often claimed in the founding period - and it is claimed today by jurists like Justice Souter and by scholars like Noah Feldman - that citizens have a right of conscience not to pay taxes that will be used to advance religious teachings which they do not believe. But advocates of this position typically reject the corresponding claim that citizens have a right of conscience not to pay taxes that will be used to advance non-religious (or, in their view, anti-religious) teachings in which they do not believe. Are these positions reconcilable? This essay investigates the question and concludes that they are not. Nor is it a tenable position to hold that conscience is violated by the use of a citizen's tax dollars to promote any beliefs, religious or non-religious, that particular taxpayers reject. So jurists and scholars would do well to drop the selective and opportunistic appeal to the ostensible connection between taxes and conscience.","PeriodicalId":81001,"journal":{"name":"Constitutional commentary","volume":"23 1","pages":"365-380"},"PeriodicalIF":0.0,"publicationDate":"2005-10-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67832274","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Progressive Political Theory and Separation of Powers on the Burger and Rehnquist Courts","authors":"Eric R. Claeys","doi":"10.2139/ssrn.480691","DOIUrl":"https://doi.org/10.2139/ssrn.480691","url":null,"abstract":"This article proposes a positive explanation why the Supreme Court has erratically veered from functionalism to formalism and back in its separation of powers law for almost 30 years. The explanation suggests that most members of the Court are drawing on normative ideas about separation of powers heavily influenced by Progressive political theory. The Progressives generated a theory of government the article identifies as the Progressive theory of apolitical administration. The Progressives held that politics, the formation of a national will, needed to be kept separate from administration, the rational implementation of that will. The basic distinction between politics and administration became an important staple of legal education during and shortly after the New Deal - when most of the Justices on the Burger and Rehnquist Courts went to law school. Most of the Justices on these Courts have relied on Progressive norms about independent administration in deciding separation of powers cases since the 1970s. These Justices have applied formalism and functionalism selectively to promote the Progressive theory of apolitical administration in the Court's case law. If a law transfers power to independent agency administrators, most Justices apply functionalism, cite Progressive normative values in the functionalist analysis, defer to Congress, and uphold the law. If, however, a law enables politicians, and especially members of Congress, to supervise agency administration closely, the same Justices apply formalism to justify striking it down. The article has two main lessons. First, it explains in positive terms a phenomenon that has puzzled administrative-law commentators for years. Second, it offers a useful correction to several leading retrospectives written to date about the Rehnquist Court. The Progressive/New Deal influence in the Court's separation of powers law suggests that there are strong intellectual limits on the extent to which the Rehnquist Court or a future Court may repudiate the constitutional achievements of the New Deal.","PeriodicalId":81001,"journal":{"name":"Constitutional commentary","volume":"21 1","pages":"405-444"},"PeriodicalIF":0.0,"publicationDate":"2005-06-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67746601","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Resolving Political Questions into Judicial Questions: Tocqueville's Thesis Revisited","authors":"M. Graber","doi":"10.2139/SSRN.506842","DOIUrl":"https://doi.org/10.2139/SSRN.506842","url":null,"abstract":"This paper explores whether national political questions during the second party system were resolved into questions adjudicated by the Supreme Court of the United States. The essay details an appropriate test for Tocqueville's thesis, demonstrates that most national political questions that excited Jacksonians were not resolved into judicial questions, and explains why Tocqueville's thesis does not accurately describe national constitutional politics during the three decades before the Civil War. That most political questions were not resolved into judicial questions during the three decades before the Civil War given common political science claim that \"(v)irtually any issue the Court might wish to resolve is offered to it.\" That Jacksonian political actors did not resolve all political questions into constitutional questions or into constitutional questions adjudicated by the Supreme Court requires major rethinking of the role of law and political choice in structuring the Supreme Court's agenda.","PeriodicalId":81001,"journal":{"name":"Constitutional commentary","volume":"21 1","pages":"485-545"},"PeriodicalIF":0.0,"publicationDate":"2004-06-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67753856","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Partial-Birth Abortion Ban Act of 2003 and the Commerce Clause","authors":"Allan Ides","doi":"10.2139/SSRN.471441","DOIUrl":"https://doi.org/10.2139/SSRN.471441","url":null,"abstract":"The constitutional controversy surrounding the recently enacted Partial-Birth Abortion Ban Act of 2003 has focused on whether the Act imposes an undue burden on a woman's right to choose an abortion. More specifically, the question is whether the Act runs afoul of the principles enunciated in Stenberg v. Carhart, 530 U.S. 914 (2000). The focus of this essay is on a separate constitutional question, namely, whether the Act represents a valid exercise of the commerce power under the principles enunciated in United States v. Lopez, 514 U.S. 549 (1995), and United States v. Morrison, 529 U.S. 598 (2000). The author concludes that under current Commerce Clause doctrinal standards the constitutionality of the Act as written is in serious doubt. Since this is a working draft, the author invites comments and criticisms.","PeriodicalId":81001,"journal":{"name":"Constitutional commentary","volume":"20 1","pages":"441-462"},"PeriodicalIF":0.0,"publicationDate":"2003-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67743102","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Constitutional Rules, Constitutional Standards, and Constitutional Settlement: Marbury v. Madison and the Case for Judicial Supremacy","authors":"L. Alexander","doi":"10.2139/SSRN.445900","DOIUrl":"https://doi.org/10.2139/SSRN.445900","url":null,"abstract":"Even after 200 years, Marbury v. Madison continues to generate scholarly attention. There is a huge and rich literature on the merits and implications of the Marshall opinion apart from its assertion of judicial review. Nevertheless, the main body of the vast Marbury oeuvre is devoted to judicial review. Is judicial review provided for in the Constitution? If not, has its legitimacy been established other than by constitutional provenance? What is the scope of judicial review? In other words, to what governmental acts is it applicable? Finally, what is the force of judicial review? Does it have stare decisis effect as well as res judicata effect? And if it has stare decisis effect, is that effect as strong as or stronger than the Supreme Court's gloss on Marbury in Cooper v. Aaron implies? In this paper I focus on the force question, its relation to the so-called countermajoritarian difficulty, and to what extent attacks on Cooper v. Aaron are meritorious.","PeriodicalId":81001,"journal":{"name":"Constitutional commentary","volume":"20 1","pages":"369-378"},"PeriodicalIF":0.0,"publicationDate":"2003-09-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.445900","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68789546","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}