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.
本文包含了《哈佛法律评论》(Harvard Law Review)发表的50年来最高法院特定条款的年度司法协议矩阵(1956年至2005年条款)的汇总数据。将任何两位大法官在某一特定任期内站在一起的次数与这两位大法官一起审理的案件数量相结合，可以得出对特定任期的衡量标准，该标准反映了该任期内一致或不一致的相对数量。这个新的度量标准被称为“综合和谐度量”，允许进行比较基准。例如，在2005年的任期内，法院达成一致意见的总数达到70%，是过去50个任期内达成一致意见的最高水平，大大高于60%的平均值和50%的低点(1970年任期)。此外，为了教学目的，共同投票数据在空间上可视化。空间可视化可以迅速向观众传达哪些法官经常意见一致，哪些法官很少意见一致，哪些法官是异常值。除了提供新的可视化之外，本文还调查了过去的可视化和共同投票数据的报告。汇总《哈佛法律评论》所有50个任期(1956-2005)的统计数据的另一个好处是，能够看到在数据集的跨度内，任何两位大法官之间最高和最低的投票一致百分比。这篇文章包含了这些投票的图表。例如，沃伦和马歇尔共同裁决100多起案件的比例达到了50年来的最高水平(88%)。同样，道格拉斯法官的争论本质也很明显，因为他是前六名中投票赞成率最低的法官之一。此外，奥康纳和肯尼迪(在较小程度上)作为摇摆选民的地位，使用带有节点和边缘的网络图形隐喻，在视觉上被描绘出来。计量标准和可视化对使法院专家学者的隐性知识向法律学生和公众开放大有帮助。内置布局算法的数据挖掘、统计处理和可视化工具使这成为可能。与法律主题相关的信息可视化领域仍处于起步阶段，需要大量发展。
{"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}
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.
{"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}
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.
你们要促进法治，不要独行我素，不要独行我素，不要独行我素，不要独行我素，不要独行我素，不要独行我素。穷人，穷人，穷人，穷人，穷人，穷人，穷人，穷人，穷人，穷人，穷人，穷人，穷人，穷人，穷人，穷人，穷人，穷人，穷人，穷人，穷人，穷人，穷人，穷人，穷人。在将保守派与美国同胞区分开来的许多文化教条中，对西班牙语的某种蔑视显得尤为突出。乔治·w·布什(George W. Bush)可能是有史以来最会说西班牙语的总统，他公开反对用英语以外的任何语言演唱国歌，但最反对的是用西班牙语演唱。然而，不到一代人之前，美国政府积极推动将标志性文本翻译成西班牙语。例如，宪法二百周年纪念委员会出版了西班牙语版的宪法。鉴于美国讲西班牙语的人口急剧增加，这个国家可能有一天会接受这样一种观念，即一个政治制度的基本法律可以用多种语言表达，这种观念是由联合国(United Nations)首创的，后来又得到了欧盟(European Union)的认可。将《宪法》的英文和西班牙文版本置于同等地位的可能性不能立即排除，特别是在一个最高法院越来越愿意咨询外国宪法智慧来源的政体中。出于一种为美国同胞服务的爱国愿望，我提供了美国政府官方的西班牙语宪法译本，并对解释上的歧义、语言上的好奇和跨文化的困惑进行了注解。
{"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}
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.
{"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}
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.
{"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}
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.
{"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}
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.
{"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}
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.
围绕最近颁布的2003年《部分分娩禁止堕胎法》的宪法争议集中在该法案是否对妇女选择堕胎的权利施加了不适当的负担。更具体地说，问题在于该法案是否违反了Stenberg v. Carhart, 530 U.S. 914(2000)一案所阐明的原则。本文的重点是一个独立的宪法问题，即，根据美国诉洛佩兹案(514 U.S. . 549)(1995)和美国诉莫里森案(529 U.S. . 598)(2000)所阐明的原则，该法案是否代表了商业权力的有效行使。作者的结论是，在现行的商业条款理论标准下，成文法案的合宪性受到严重质疑。由于这是一个工作草案，作者欢迎评论和批评。
{"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}
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.
{"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}
Professor Lund is virtually alone in defending not only the Supreme Court's equal protection rationale in Bush v. Gore, but also the Court's startling decision to shut down the Florida recount process and thereby foreclose any opportunity for the State of Florida to actually implement the equal protection principles the Court purported to be enforcing. Professor Lund even characterizes Bush v. Gore as "simply not a close case." If the case was not close, the reasons are not those Lund so cavalierly assays. Part I defends my argument that the Court's per curiam opinion cannot be grounded in any previously recognizable form of equal protection doctrine. Professor Lund's argument to the contrary is that Bush v. Gore was but a logical extension of the "one-person, one-vote" jurisprudence illustrated by Reynolds v. Sims. He relies almost exclusively on the statement in Reynolds that the Constitution forbids weighing "votes of citizens differently, by any method or means." Professor Lund (conveniently unwilling to embrace this principle as a proper reading of the Equal Protection Clause) treats this statement as establishing a precedent so sweeping and amorphous that it cannot be taken seriously, particularly in the context of ballot counting. Professor Lund apparently would extrapolate the statement to encompass virtually all disparities, not only between classes of voters, but among methods of recording and tallying votes and interpreting ballots. Far from a "disinterested" analysis, this absurdly literal fidelity to "one-ballot, one-vote" is the essence of jurisprudence by slogan. Any coherent approach to "one-person, one-vote" must incorporate a structural theory of how votes should be aggregated. Nothing in Reynolds or any other case suggests that a state cannot be selective in deciding which types of ballot errors are worth recounting in a particular circumstance, subject only to a requirement of rationality. Bush v. Gore did not involve a problem of valuing or weighing some votes more than others, much less deliberately packing or diluting groups of voters, but instead involved the obviously distinct problem of differentially treating ballots as evidence of votes. The Florida Supreme Court's remedy did nothing to alter the manner in which legally cast votes were weighed in the overall state scheme to choose presidential electors. At most, the scheme created the possibility that different standards would be used for determining what constituted a legal vote. But the much maligned "intent of the voter" standard on its face treated all voters equally. It was only in the application of that standard that equal protection violations could have arisen - and even those violations were correctable under the supervision of a single, impartial state judge. Thus, even if the Florida Supreme Court's plan for a statewide recounting of ballots to discern voters' intent could be said to have launched a scheme under which the "weight" of some votes cast in Flor
{"title":"The Unbearable Wrongness of Bush v. Gore","authors":"L. Tribe","doi":"10.2139/SSRN.431080","DOIUrl":"https://doi.org/10.2139/SSRN.431080","url":null,"abstract":"Professor Lund is virtually alone in defending not only the Supreme Court's equal protection rationale in Bush v. Gore, but also the Court's startling decision to shut down the Florida recount process and thereby foreclose any opportunity for the State of Florida to actually implement the equal protection principles the Court purported to be enforcing. Professor Lund even characterizes Bush v. Gore as \"simply not a close case.\" If the case was not close, the reasons are not those Lund so cavalierly assays. Part I defends my argument that the Court's per curiam opinion cannot be grounded in any previously recognizable form of equal protection doctrine. Professor Lund's argument to the contrary is that Bush v. Gore was but a logical extension of the \"one-person, one-vote\" jurisprudence illustrated by Reynolds v. Sims. He relies almost exclusively on the statement in Reynolds that the Constitution forbids weighing \"votes of citizens differently, by any method or means.\" Professor Lund (conveniently unwilling to embrace this principle as a proper reading of the Equal Protection Clause) treats this statement as establishing a precedent so sweeping and amorphous that it cannot be taken seriously, particularly in the context of ballot counting. Professor Lund apparently would extrapolate the statement to encompass virtually all disparities, not only between classes of voters, but among methods of recording and tallying votes and interpreting ballots. Far from a \"disinterested\" analysis, this absurdly literal fidelity to \"one-ballot, one-vote\" is the essence of jurisprudence by slogan. Any coherent approach to \"one-person, one-vote\" must incorporate a structural theory of how votes should be aggregated. Nothing in Reynolds or any other case suggests that a state cannot be selective in deciding which types of ballot errors are worth recounting in a particular circumstance, subject only to a requirement of rationality. Bush v. Gore did not involve a problem of valuing or weighing some votes more than others, much less deliberately packing or diluting groups of voters, but instead involved the obviously distinct problem of differentially treating ballots as evidence of votes. The Florida Supreme Court's remedy did nothing to alter the manner in which legally cast votes were weighed in the overall state scheme to choose presidential electors. At most, the scheme created the possibility that different standards would be used for determining what constituted a legal vote. But the much maligned \"intent of the voter\" standard on its face treated all voters equally. It was only in the application of that standard that equal protection violations could have arisen - and even those violations were correctable under the supervision of a single, impartial state judge. Thus, even if the Florida Supreme Court's plan for a statewide recounting of ballots to discern voters' intent could be said to have launched a scheme under which the \"weight\" of some votes cast in Flor","PeriodicalId":81001,"journal":{"name":"Constitutional commentary","volume":"19 1","pages":"571-607"},"PeriodicalIF":0.0,"publicationDate":"2003-08-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68769947","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}
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