There is much to say about Dobbs and the various opinions in it. My jurisprudential sympathies, truth be told, run in favor of the decision. But I plan to say little about it. I would prefer to focus on the source of those sympathies rather than on the decision itself. My concern is that we are asking too much of the U.S. Supreme Court. My claim is that we should decentralize more of our debates about American constitutional law. One question dominates every other in American history: What should be national and what should be local?Over the last 100 years or so, we have tended to favor national answers over local ones when it comes to American constitutional law. Often with good reasons: dealing with the imperatives of the Great Depression; bringing Jim Crow to heel; addressing policy challenges that have emerged from an increasingly national and global economy. Even as we recall the reasons not to forget these chapters inAmerican history and even aswe contend with chapters still unfolding, I wonder whether, halfway through our third century, we should pay more attention to the localism side of federalism and be more patient when it comes to the nationalism side
{"title":"What Should Be National and What Should Be Local in American Judicial Review","authors":"Jeffrey S. Sutton","doi":"10.1086/724658","DOIUrl":"https://doi.org/10.1086/724658","url":null,"abstract":"There is much to say about Dobbs and the various opinions in it. My jurisprudential sympathies, truth be told, run in favor of the decision. But I plan to say little about it. I would prefer to focus on the source of those sympathies rather than on the decision itself. My concern is that we are asking too much of the U.S. Supreme Court. My claim is that we should decentralize more of our debates about American constitutional law. One question dominates every other in American history: What should be national and what should be local?Over the last 100 years or so, we have tended to favor national answers over local ones when it comes to American constitutional law. Often with good reasons: dealing with the imperatives of the Great Depression; bringing Jim Crow to heel; addressing policy challenges that have emerged from an increasingly national and global economy. Even as we recall the reasons not to forget these chapters inAmerican history and even aswe contend with chapters still unfolding, I wonder whether, halfway through our third century, we should pay more attention to the localism side of federalism and be more patient when it comes to the nationalism side","PeriodicalId":46006,"journal":{"name":"Supreme Court Review","volume":null,"pages":null},"PeriodicalIF":2.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41502587","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Despite bitter criticism and the defiance of Georgia which refused to obey this Court’s mandate in Worcester the broad principles of that decision came to be accepted as law. Over the years this Court has modified these principles in cases where essential tribal relations were not involved and where the rights of Indians would not be jeopardized, but the basic policy of Worcester has remained. (Williams v. Lee, 358 U.S. 217, 219 (1959).)
尽管格鲁吉亚受到严厉的批评和蔑视，拒绝服从法院在伍斯特的授权，但该决定的广泛原则最终被接受为法律。多年来，本院在不涉及基本部落关系和印第安人权利不会受到损害的情况下修改了这些原则，但伍斯特的基本政策保持不变。(Williams v. Lee, 358 U.S. 217, 219(1959)。)
{"title":"Too Much History: Castro-Huerta and the Problem of Change In Indian Law","authors":"Gregory Ablavsky","doi":"10.1086/724831","DOIUrl":"https://doi.org/10.1086/724831","url":null,"abstract":"Despite bitter criticism and the defiance of Georgia which refused to obey this Court’s mandate in Worcester the broad principles of that decision came to be accepted as law. Over the years this Court has modified these principles in cases where essential tribal relations were not involved and where the rights of Indians would not be jeopardized, but the basic policy of Worcester has remained. (Williams v. Lee, 358 U.S. 217, 219 (1959).)","PeriodicalId":46006,"journal":{"name":"Supreme Court Review","volume":null,"pages":null},"PeriodicalIF":2.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44757269","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Hidden Judicial Springs of U.S. Foreign Policy","authors":"Mariano-Florentino Cuéllar, Aziz Z Huq","doi":"10.1086/724920","DOIUrl":"https://doi.org/10.1086/724920","url":null,"abstract":"","PeriodicalId":46006,"journal":{"name":"Supreme Court Review","volume":null,"pages":null},"PeriodicalIF":2.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49619479","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
It is not every day that a state enacts a law that is designed to prevent people from exercising a constitutional right. The Texas statute known as S.B. 8 is such a law. It prohibited pre-viability abortions at a time when that prohibition was unquestionably inconsistent with the SupremeCourt’s decisions. S.B. 8 then accompanied the prohibition with procedural rules that served no discernible purpose except to make it very difficult for anyone to challenge the law. The question that a law like that raises—or ought to raise—is whether our system of constitutional remedies has the resources to prevent a state from doing what Texas did. InWholeWoman’s Health v. Jackson, the case in which the Supreme Court upheld S.B. 8, the Court did not ask that question. As a result, the Court gave the wrong answers to the questions it did ask. The answers it gave may also suggest that the Court is prepared to limit federal courts’ power to enforce the Constitution in ways that go beyond the specific circumstances of S.B. 8. Those limits, if the Court were to follow through on the suggestions in Whole Woman’s Health, would be inconsistent with established principles that are central both to enforcing constitutional rights and to the supremacy of federal law.
{"title":"Rights, Remedies, and Texas’s S.B. 8","authors":"D. Strauss","doi":"10.1086/725213","DOIUrl":"https://doi.org/10.1086/725213","url":null,"abstract":"It is not every day that a state enacts a law that is designed to prevent people from exercising a constitutional right. The Texas statute known as S.B. 8 is such a law. It prohibited pre-viability abortions at a time when that prohibition was unquestionably inconsistent with the SupremeCourt’s decisions. S.B. 8 then accompanied the prohibition with procedural rules that served no discernible purpose except to make it very difficult for anyone to challenge the law. The question that a law like that raises—or ought to raise—is whether our system of constitutional remedies has the resources to prevent a state from doing what Texas did. InWholeWoman’s Health v. Jackson, the case in which the Supreme Court upheld S.B. 8, the Court did not ask that question. As a result, the Court gave the wrong answers to the questions it did ask. The answers it gave may also suggest that the Court is prepared to limit federal courts’ power to enforce the Constitution in ways that go beyond the specific circumstances of S.B. 8. Those limits, if the Court were to follow through on the suggestions in Whole Woman’s Health, would be inconsistent with established principles that are central both to enforcing constitutional rights and to the supremacy of federal law.","PeriodicalId":46006,"journal":{"name":"Supreme Court Review","volume":null,"pages":null},"PeriodicalIF":2.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44956135","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Last term, the Supreme Court issued its first major Second Amendment decision in more than a decade, New York State Rifle and Pistol Association, Inc. v. Bruen. The case concerned a challenge to New York’s century-old “may-issue” regulation, which required applicants to show “proper cause” to receive a license to carry a concealed handgun in public. Petitioners described New York’s may-issue law as an outlier compared to forty-three other states with more relaxed “shall-issue” or permitless carry laws. At oral argument, Paul Clement, representing the petitioners, framed the case as a simple request: “[W]e’d like what they’re having.” In a 6-3 majority opinion striking down New York’s law, Justice Clarence Thomas embraced petitioners’ characterization of the regulation as a contemporary outlier—and went further, casting it as a historical outlier as well. New York and supporting amici had amassed a
{"title":"Manufacturing Outliers","authors":"Darrell A. H. Miller, Joseph Blocher","doi":"10.1086/725159","DOIUrl":"https://doi.org/10.1086/725159","url":null,"abstract":"Last term, the Supreme Court issued its first major Second Amendment decision in more than a decade, New York State Rifle and Pistol Association, Inc. v. Bruen. The case concerned a challenge to New York’s century-old “may-issue” regulation, which required applicants to show “proper cause” to receive a license to carry a concealed handgun in public. Petitioners described New York’s may-issue law as an outlier compared to forty-three other states with more relaxed “shall-issue” or permitless carry laws. At oral argument, Paul Clement, representing the petitioners, framed the case as a simple request: “[W]e’d like what they’re having.” In a 6-3 majority opinion striking down New York’s law, Justice Clarence Thomas embraced petitioners’ characterization of the regulation as a contemporary outlier—and went further, casting it as a historical outlier as well. New York and supporting amici had amassed a","PeriodicalId":46006,"journal":{"name":"Supreme Court Review","volume":null,"pages":null},"PeriodicalIF":2.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42925067","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Surveillance, State Secrets, and the Future of Constitutional Rights","authors":"L. Donohue","doi":"10.1086/724432","DOIUrl":"https://doi.org/10.1086/724432","url":null,"abstract":"","PeriodicalId":46006,"journal":{"name":"Supreme Court Review","volume":null,"pages":null},"PeriodicalIF":2.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49256994","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Neglected Origins of the Hearsay Rule in American Slavery: Recovering Queen v. Hepburn","authors":"D. Sklansky","doi":"10.1086/724278","DOIUrl":"https://doi.org/10.1086/724278","url":null,"abstract":"","PeriodicalId":46006,"journal":{"name":"Supreme Court Review","volume":null,"pages":null},"PeriodicalIF":2.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49088580","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Opportunistic Originalism: Dobbs v. Jackson Women’s Health Organization","authors":"M. Goodwin","doi":"10.1086/724759","DOIUrl":"https://doi.org/10.1086/724759","url":null,"abstract":"","PeriodicalId":46006,"journal":{"name":"Supreme Court Review","volume":null,"pages":null},"PeriodicalIF":2.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47057524","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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