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On Extrajudicial Constitutional Interpretation
Abstract
In Cooper v. Aaron, the Supreme Court asserted that its interpretations of the Constitution bind all officials, and that the obligation of nonjudicial officials to obey the Constitution is an obligation to obey the Constitution as interpreted by the Supreme Court. Since Cooper, however, a consensus has developed among scholars and officials that Cooper cannot be taken at face value, and that nonjudicial officials need not treat Supreme Court opinions as authoritative in order to comply with their obligation to the Constitution. In this Article, Professors Alexander and Schauer challenge this consensus, and offer an unqualified defense of Cooper and the judicial supremacy that it asserted. They argue that settlement of contested issues is a crucial component of constitutionalism, that this goal can be achieved only by having an authoritative interpreter whose interpretations bind all others, and that the Supreme Court can best serve this role. They further argue that constitutionalism entails obeying a constitution even when its directives seem mistaken, and that once we accept the obligation of officials to follow a mistaken constitutional directive, it is only a small step to expect them to follow a court decision that they believe similarly mistaken. Both constitutionalism itself and judicial supremacy embody the goal of providing settlement of issues as to which people disagree, and the coordination function of law in general and constitutionalism in particular yields not only an obligation to obey the law, but also an obligation to obey a single authoritative interpreter of the law.
... Settlement theories of judicial review maintain that judicial supremacy is justifi ed on the grounds that it is conducive to settlement, coordination , and stability (Alexander & Schauer 1997, 1359 Alexander & Schauer 2000, 455). 12 Alexander and Schauer—the most infl uential contemporary advocates of settlement theories—suggest that authoritative settlement of disagreements is sometimes desirable, even when the settlement is suboptimal . ...
... Settlement theories of judicial review maintain that judicial supremacy is justifi ed on the grounds that it is conducive to settlement, coordination, and stability (Alexander & Schauer 1997, 1359Alexander & Schauer 2000, 455). 12 Alexander and Schauer—the most infl uential contemporary advocates of settlement theories—suggest that authoritative settlement of disagreements is sometimes desirable, even when the settlement is suboptimal. ...
This paper defends judicial review on the ground that judicial review is necessary for protecting “a right to a hearing.”
Judicial review is praised by its advocates on the basis of instrumentalist reasons; i.e., because of its desirable contingent
consequences such as protecting rights, promoting democracy, maintaining stability, etc. We argue that instrumentalist justifications
for judicial review are bound to fail and that an adequate defense of judicial review requires justifying it on non-instrumentalist
grounds. A non-instrumentalist justification grounds judicial review in essential attributes of the judicial process.
In searching for a non-instrumental justification, we establish that judicial review is designed to protect the right to a
hearing. The right to a hearing consists of three components: the opportunity to voice a grievance, the opportunity to be
provided with a justification for a decision that impinges (or may have impinged) on one's rights, and the duty to reconsider
the initial decision giving rise to the grievance. The right to a hearing is valued independently of the merits of the decisions
generated by the judicial process.
... 205 For instance, the legal developments 206 connected to Australia's growth into an independent, internationally sovereign nation are difficult to explain within a strict originalist model. 207 To take another example, in 1900 criminal juries in all Australian colonies were comprised of men of property. This reflected a basic British quasi-constitutional. principle: clause 11 of the Bill of Rights 1689 required that jurors on treason trials be freeholders. ...
... Los versus Condado de Shelby, 118 U.S. 425 (1886), la Corte declaró que "un acto inconstitucional no es una ley; no confiere ningún derecho; no impone ningún deber; esto es, desde la perspectiva legal, tan inoperante como si nunca hubiera pasado". Para una defensa de este punto de vista, véase Alexander y Schauer (1997: 1359-1387 funcionarios pueden estar en desacuerdo sobre dichas posturas; sin embargo, la declaración de la Corte señalando a una norma como inconstitucional vuelve claramente inaplicable dicha norma y, por tanto, como carente de la fuerza que parcialmente constituye a un proyecto de ley promulgado como ley en sentido estricto; las normas de un sistema S que no pueden ser legalmente forzadas para su ejecución no se caracterizan correctamente como "leyes" ni se dice de ellas que tengan la condición de "validez jurídica" o "legalidad". Las normas jurídicas son característicamente respaldadas por el poder de policía del Estado. ...
Este trabajo se ocupa de la cuestion de si la supremacia judicial, segun el modelo estadounidense, satisface las normas de moralidad politica que caen bajo la rubrica del “Estado de Derecho” (en adelante, EdD). Hay una serie de preguntas que se plantean al respecto, las cuales se discutiran en este escrito: 1) ?Que es exactamente el EdD? 2) ?Como se conecta el EdD con otras normas de moralidad politica normativa relevantes en cuanto a la evaluacion de las practicas legales judiciales y de otro tipo? 3) ?Hay alguna razon para pensar que la supremacia judicial esta en conflicto con las normas relevantes del EdD? 4) Si se asume una respuesta afirmativa a la pregunta 3, ?que nos dice esto acerca de si la supremacia judicial esta moralmente justificada? Parto de la concepcion procesal-funcional de F. A. Hayek como mi concepcion de trabajo de EdD, para asi considerar si la supremacia judicial entra en conflicto o no con los principios relevantes del EdD. Aunque este documento se refiere especificamente a una tension aparente entre la supremacia judicial y los principios relevantes del EdD, la parte mas importante del analisis esta direccionada a la explicacion de la cuestion moral real y la forma en que esta va mas alla de las consideraciones del EdD
... 11 Settlement theories of judicial review maintain that judicial supremacy is justified on the grounds that it is conducive to settlement, coordination, and stability. 12 Alexander and Schauer believe that courts in general and the Supreme Court in particular are better capable of maintaining stability and achieving settlement than other institutions, e.g., the legislature. 13 In all of these cases, the justificatory method meets the general structure described above. ...
Este trabajo examina la potestad dictaminante de la Contraloría General de la República como un foro de resolución de disputas entre la Administración y los particulares. Se examinan cuatro características de esta potestad que permiten evaluarla como una alternativa al control judicial. Primero, se discute su especial combinación de imparcialidad y expertise. Segundo, se analizan los menores obstáculos para el acceso a tutela jurídica frente a actuación administrativa potencialmente antijurídica. Tercero, se considera el empleo de procedimientos de toma de decisión más flexibles e informales que los tribunales de justicia. Y, por último, se examina el débil carácter final de los dictámenes de la Contraloría que no son vinculantes para los tribunales de justicia.
This paper analyses five constitutional developments in Central and Eastern Europe that can impact the domestic implementation of the UN Guiding Principles on Business and Human Rights (UNGPs). Using Czechia, Poland and Slovenia as examples, the paper highlights four potential drivers, namely: (1) the process of constitutionalizing human rights; (2) the proliferation of the doctrine of horizontal effect of constitutional rights; (3) the constitutional legitimacy of state intervention in the free market economy; and (4) the mechanism of judicial review. Furthermore, the author underlines the most significant challenge, which is increasing resistance to international norms in some countries, e.g., Poland. The paper concludes that the jurisprudence of the constitutional courts can facilitate the domestic implementation of the UNGPs, particularly Pillars I (State duty to protect human rights) and III (access to remedy).
Resumo Teorias que propõem a apropriação popular da Constituição ligadas ao debate sobre constitucionalismo popular e democrático surgem como reações ao protagonismo do Poder Judiciário, em particular cortes constitucionais, no sistema político e nas agendas de pesquisa pautadas pelo juriscentrismo do Direito Constitucional. O artigo discute a aplicabilidade e a pertinência dessas teorias em contextos em que o autoritarismo se estabelece e progride gradualmente, notadamente pelas vias democráticas e com apoio das maiorias políticas, e em que o Judiciário não é percebido como a principal fonte de preocupação em relação à democracia constitucional. Para isso, o trabalho busca situar o debate sobre democratização da construção do significado constitucional na produção nacional mais ampla sobre mobilização social do direito, sugerindo razões para o seu desenvolvimento tardio. Recupera as principais características das propostas de constitucionalismo popular e constitucionalismo democrático nos Estados Unidos dos anos 2000, sua influência no Brasil e na América Latina e os influxos recebidos nesses novos contextos. Explora as críticas sofridas por essa literatura e suas contribuições para uma reflexão sobre a aplicabilidade e a pertinência dessas ideias em contextos de autoritarismo crescente. Por fim, apresenta dois casos ocorridos durante o governo de Jair Bolsonaro que ilustram alguns dos aspectos debatidos ao longo do artigo: a extinção de conselhos participativos no âmbito da Administração Pública Federal e a disputa pelo significado do artigo 142 da Constituição Federal de 1988.
In a time of disenchantment with democracy, massive social protests and the 'erosion' of the system of checks and balances, this book proposes to reflect upon the main problems of our constitutional democracies from a particular regulative ideal: that of the conversation among equals. It examines the structural character of the current democratic crisis, and the way in which, from its origins, constitutions were built around a 'discomfort with democracy'. In this sense, the book critically explores the creation of different restraints upon majority rule and collective debate: constitutional rights that are presented as limits to (and not, fundamentally, as a product of) democratic debate; an elitist system of judicial review; a checks and balances scheme that discourages, rather than promotes, dialogue between the different branches of power; etc. Finally, the book proposes a dignified constitutional democracy aimed at enabling fraternal conversation within the framework of a community of equals.
In this chapter I want to discuss the relationship between anti-elitism and liberal constitutionalism. Although anti-elitism is often defined as one of the two prongs of populist thin ideology,1 to define any possible attitude of populism towards constitutional democracy most, if not exclusive, attention has been paid to populism’s second prong, that is the appeal to a monolithic will of the people. The result has often been to end up in a vicious circle. Populist constitutionalism is usually described as proposing an institutional setting whereby populist governments entrench their power and privileges and weaken the media and the opposition by claiming to be morally backed by massive popular support. Populists are seen as betraying the core elements of liberal constitutionalism because they hold a perverted idea of popular sovereignty, which rejects most constitutional limitations that characterise liberal democracies.2 There is surely something appropriate in this reasoning and it is not my intention to question the conclusions of scholars who have followed this approach.3 My more limited aim is to enquire whether, and if so to what extent, the fundamental antagonism supported by populist ideology, and thus anti-elitism, can tell us something more about the attitude of populism towards constitutionalism.
biological, philosophical and legal aspects of human embryonic stem cell research
Modern democratic constitutions mediate the tension between democracy and the rule of law through institutions that check unrestrained popular rule with expert judicial bodies. This paper considers the alternative arrangement that existed in ancient Athens, where checks on popular rule coexisted with strong popular control. Judicial review in Athens, however, raised two additional threats to democracy and the rule of law: unpredictability and partisanship. We combine a formal model with historical exegesis to show how the strategic incentives of Athenian institutional design, along with a strong societal consensus on the value of constitutional democracy, were necessary ingredients for dispelling both threats. In Athens, institutions responsive to citizens’ demands existed alongside a robust rule of law. This case study provides empirical evidence allowing us to reflect on the feasibility of extensive democratic input to the process of constitutional review. [JEL: H11—structure, scope, and performance of government; K40—legal procedure, the legal system, and illegal behavior (general)]
Putusan Mahkamah Konstitusi (MK) Nomor 30/PUU-XVI/2018 bertanggal 23 Juli 2018 menjadi salah satu putusan penting bagi desain lembaga perwakilan di Indonesia. Dalam Putusan tersebut, MK menyatakan bahwa pengurus partai politik dilarang menjadi calon anggota Dewan Perwakilan Daerah. Namun, tindak lanjut dari Putusan ini memicu polemik ketatanegaraan. Sebab, terjadi kontradiksi mengenai waktu pemberlakuan larangan tersebut akibat adanya perbedaan pemaknaan terhadap Putusan MK di dalam Putusan MA Nomor 64/P/HUM/2018, Putusan PTUN Nomor 242/G/SPPU/2018/PTUN-JKT, dan Putusan Bawaslu Nomor 008/LP/PL/ADM/RI/00/XII/2018. MK secara eksplisit menyatakan bahwa Putusannya berlaku sejak Pemilu 2019. Akan tetapi, Putusan MA, Putusan PTUN, dan Putusan Bawaslu menyatakan larangan tersebut berlaku setelah Pemilu 2019. Artikel ini mengkaji kontradiksi Putusan-Putusan tersebut dengan menggunakan tiga pisau analisis, yaitu: (1) finalitas putusan; (2) respons terhadap putusan; dan (3) validitas atau keberlakuan norma. Dengan menggunakan doktrin responsivitas terhadap putusan pengadilan dari Tom Ginsburg, artikel ini menyimpulkan bahwa Keputusan KPU yang tetap kukuh untuk memberlakukan larangan bagi pengurus partai politik sebagai calon anggota DPD sejak Pemilu tahun 2019 sesungguhnya merupakan tindakan yang formal konstitusional karena telah mengikuti (comply) penafsiran konstitusional yang terkandung di dalam Putusan MK. Di lain sisi, tindakan KPU juga merupakan bentuk yang secara sekaligus mengabaikan (ignore) Putusan MA, Putusan PTUN, dan Putusan Bawaslu. Meskipun demikian, respons KPU tersebut dapat dibenarkan karena Putusan MK memiliki objek dan dasar pengujian lebih tinggi dalam hierarki peraturan perundang-undangan, sehingga memiliki validitas atau keberlakuan hukum yang lebih tinggi pula dibandingkan dengan Putusan MA, Putusan PTUN, atau Putusan Bawaslu. Dengan demikian, tindakan KPU yang konsisten mengikuti Putusan MK tersebut merupakan respons konstitusional yang memiliki justifikasi hukum dan konstitusi.
Cambridge Core - Constitutional and Administrative Law - Constitutional Dialogue - edited by Geoffrey Sigalet
The idea of public reason requires that citizens in their public deliberation employ considerations stemming from a shared conception of justice. One worry is that public reason's content will be incomplete, in that it does not contain sufficient material for adequate public debate. Rawls has a way of expanding the content of public reason to address such concerns—by including in public reason all those things you and I say in our justification of the conception of justice. After arguing that this strategy fails, a new way of expanding public reason's content is proposed. Instead of understanding the Supreme Court—which Rawls famously calls the “exemplar” of public reason—as an institution that appeals to exogenously determined public reasons, we should understand the judicial authority in a liberal democratic society as an endogenous fountain of public reason.
The design of appropriate institutional arrangements to satisfy the demands for legal accountability has been a pervasive challenge since the emergence of the modern administrative state. While some commentators have celebrated the development of increasingly searching judicial techniques to control bureaucratic power, others have expressed their preference for nonjudicial forms of administrative justice. Recent literature has explored the development of a rich accountability landscape inhabited by numerous institutions that complement and sometimes substitute for courts in the task of securing administrative compliance with the rule of law. This study examines the Chilean Office of the Comptroller-General as one of these nonjudicial institutions of administrative justice. The contribution of this legal accountability institution is particularly remarkable considering the Latin American context, which is characterised by strong presidential government, authoritarian experiences, and fragile bureaucratic capacities. This thesis suggests that this organisation represents an attractive institutional incarnation of the idea that legal accountability, and particularly administrative justice, could be realised through non-court arrangements. Adopting a socio-legal approach, this case study uses historical and archival data along with in-depth interviewing methods to explore the evolution and current performance of the Chilean Comptroller-General as an instance of nonjudicial administrative justice. The thesis looks at historical and current uses of legality within the administrative process in Chile and also its use in the interaction of public bureaucracy with other branches of government, as well as private affected parties. Addressing the historical evolution of the institution, the emergence, consolidation, and critical junctures for the Chilean Comptroller-General are analysed. In addition, the current contribution of the office to legality within the administrative process, and the delimitation of its role from the judicial function are examined. Overall, the thesis aims to shed light on the possibilities and limits of nonjudicial administrative justice in the modern Latin American state.
With contributions from leading scholars in constitutional law, this volume examines how carefully designed and limited doctrines of proportionality can improve judicial decision-making, how it is applied in different jurisdictions, its role on constitutionalism outside the courts, and whether the principle of proportionality actually advances or detracts from democracy. Contributions from some of the seminal thinkers on the development of scholarship on proportionality (e.g. Alexy, Barak, and Beatty) extend their prior work and engage in an important dialogue on the topic. Some offer substantial critiques, others defend the doctrine and offer important clarifications and extensions of their prior work. Throughout, the authors engage not only with case law from around the world but also with existing scholarly treatments of the subject. Mathematical treatments are avoided, making the book accessible to readers from both 'soft' and hard' social science backgrounds.
This wide-ranging comparative account of the legal regimes for controlling administrative power in England, the USA and Australia argues that differences and similarities between control regimes may be partly explained by the constitutional structures of the systems of government in which they are embedded. It applies social-scientific and historical methods to the comparative study of law and legal systems in a novel and innovative way, and combines accounts of long-term and large-scale patterns of power distribution with detailed analysis of features of administrative law and the administrative justice systems of three jurisdictions. It also proposes a new method of analysing systems of government based on two different models of the distribution of public power (diffusion and concentration), a model which proves more illuminating than traditional separation-of-powers analysis.
Embora seja uma criação estadunidense, o controle de constitucionalidade das normas produzidas pelo legislador ordinário encontrou acolhida em diversos sistemas jurídicos, mesmo aqueles não filiados à tradição jurídica do common law, como é o caso de boa parte da Europa continental. Nestes países, desenvolveu-se uma técnica diferente: em vez de provocar os tribunais constitucionais apenas a partir de litígios concretos, como nos Estados Unidos, a fiscalização da constitucionalidade das normas inicialmente era sempre exercida pela via abstrata, questionando-se a compatibilidade entre as leis ordinárias e o texto constitucional apenas em tese. Ao longo do século XX, no entanto, observa-se que as nações européias incorporam a possibilidade de controle concreto de constitucionalidade, pela via dos “recursos constitucionais”. O artigo pretende abordar justamente as diferenças e semelhanças existentes entre o controle concreto de constitucionalidade praticado na Europa continental (Alemanha e Espanha) e aquele exercido na América do Norte (Estados Unidos, berço do judicial review, e Canadá). Para o Brasil, país que mescla componentes de ambos os sistemas de fiscalização de constitucionalidade, a análise parece oportuna, especialmente frente às recentes alterações neste modelo híbrido adotado entre nós.
The common law style of judging appears to be on its way out. Trial courts rarely shape legal policymaking by asserting decisional autonomy through distinguishing, limiting, or criticizing higher court precedent. In an earlier study, we demonstrated the reluctance of lower court judges to assert decisional autonomy by invoking the holding-dicta dichotomy. In this Article, we make use of original empirical research to study the level of deference U.S. district court judges exhibit toward higher courts and whether the level of deference has changed over time. Our analysis of citation behavior over an eighty-year period reveals a dramatic shift in judges' practices. In the first fifty years included in our study, district court judges were not notably deferential to either their federal court of appeals or the U.S. Supreme Court. District court judges regularly assessed the relevance and scope of precedents from those higher courts and asserted their prerogative to disregard many of them. Since then, judges have become far more likely to treat a given higher court precedent as dispositive. In so doing, lower courts have embraced a hierarchical view of judicial authority at odds with the common law style of judging. The causes of this shift are multifold and likely permanent; we discuss several of them, including dramatic changes in legal research, the proliferation of law clerks throughout the legal system, the growing docket of lower court judges, the growth of the administrative state, and the Supreme Court's increasing embrace of judicial hierarchy.
Este artículo estudia la doctrina de las cuestiones políticas, desarrollada por la Corte Suprema de los Estados Unidos, con el fin de justificar su incompetencia para resolver determinadas materias, dada su naturaleza eminentemente política. El interés de esta doctrina estriba en el reconocimiento explícito de un ámbito vedado a la jurisdicción constitucional. En este sentido, se argumenta que esta doctrina refleja la naturaleza doble de la Constitución, jurídica y política, y, en consecuencia, la pluralidad de intérpretes constitucionales que coexisten, unos políticos y otros jurídicos.
Why is it so difficult to qualify the Court of Justice’s decisions as ‘sources of law?’ Does the Court of Justice only ‘interpret’ law, or does it ‘make’ it? To what extent should its pronouncements be taken into account by others? This chapter shows how a particular theoretical approach to precedent and judicial lawmaking shapes the answers to the queries mentioned above. It examines a set of interrelated questions concerning precedent and judicial lawmaking by the US Supreme Court and the French Cour de cassation and then applies these findings to the Court of Justice. The questions are: first, in what sense is it said that these courts make law; secondly, who is bound by their pronouncements; and, thirdly, how does this binding force actually work? It is suggested that while the US and French systems have found ways in which to reconcile judicial lawmaking with the basic premises of their constitutional and political systems, especially by allowing other actors to respond to judicial lawmaking (in the particular sense of the word ‘lawmaking’ used in these two systems), the EU system is still waiting for a satisfactory answer.
In the debate about the legitimacy of judicial supremacy, Cooper v. Aaron , the Little Rock desegregation case, is identified by both sides as critical to their argument. Defenders insist that Cooper exemplifies the need for a final authority in matters constitutional. Critics argue that the Court was wrong as a matter of democratic theory or empirical reality. In this article I argue that while it is true as a matter of empirical reality that the Court's interpretation is not the final word, the Court's assertion can be defended nonetheless. Relying on archival sources from the case, I explore the conditions under which the Court made the claim. To defend Cooper, however, does not require the defense of all assertions of judicial supremacy. I conclude by offering a preliminary analysis of how we might distinguish between more legitimate assertions of judicial supremacy and less legitimate ones.
I distinguish three ways by which references to the Declaration of Independence might enter into American legal argument. In primary-legal mode, the Declaration ranks as supreme law beside or above the Constitution, setting mandates as the Constitution does for other purported exercises of legal authority, from Acts of Congress on down. In interpretive-contextual mode, the Declaration provides informative historical context for determinations of the meanings of the Constitution and other laws. In creedal mode, the Declaration serves as a canonical marker for axiomatic principles of good or right government. Creedal uses of the Declaration are common and benign. Interpretive-contextual uses invite debates like those attending other uses of history in legal interpretation. A supreme-law status for the Declaration finds little support in our legal history, nor is there good reason to press in that direction.
This chapter challenges the supposed normative justifications of constitutional stare decisis in the Supreme Court. The author contends that a Justice who believes the Constitution must be obeyed even when it would produce what she believes to be unjust results should, for the same reasons, presumptively reject a supposed obligation to follow incorrect constitutional precedents. The author acknowledges that this presumption might in theory be overcome, if the consequences of overruling a precedent would be calamitous. But he suggests that this will rarely be the case, as the Court could delay implementation of an overruling in order to mitigate its effects or to allow the enactment of a corrective constitutional amendment. The author then specifically addresses the arguments for stare decisis advanced by the well-known plurality opinion in Planned Parenthood v. Casey, finding them poorly reasoned and unpersuasive.
A theory of authority has important implications for justifying the institutions of judicial review. In this paper, I attempt to take part in the current debates about the authority of constitutional courts, with a view to showing some of the difficulties of systems of strong judicial review in constitutional democracies. On the one hand, I discuss two theses put forward by Joseph Raz, the Pre-Emptive Thesis and the Normal Justification Thesis. On the other hand, I try to explain how the authority of a constitutional court’s decision looks like in the contexts provided by Raz’s two theses, as well as how a theoretical account of legal authority might provide the basis for a normative critique of the systems of strong judicial review. In short, I hold that the Pre-Emptive Thesis does not offer a clear picture of the authority of law in general, since it does not provide a complete explanation of the argumentative character of law and the interpretive dimension of legal reasoning. Nonetheless, I think that it is able to explain the authority of constitutional courts in systems of strong judicial review, since at least some of their decisions cut off further deliberation about the validity of certain statutes and have the pre-emptive status that Raz assigns to the law in general. This is not the case, as I intend to show, in systems of weak judicial review, where the decisions of the court lack pre-emptive force and the legal issues are open to further interpretive activity by citizens and institutions. This distinction has a practical import, since even if the instrumental justification for legal authority provided by Raz’s ‘Normal Justification Thesis’ is too weak to justify the pre-emptive authority of strong judicial review, it might turn out to be enough to provide a moral justification for a system of weak judicial review.
This chapter takes up the debate that is going on in contemporary legal and political philosophy under the rubric of dialogic constitutionalism, dialogic justice or dialogic judicial review. These issues are studied with special emphasis on historical considerations about the separation of powers and the contemporary context of Latin American Constitutions. In the same spirit of some of my previous writings, including a larger version of this paper, I maintain that, beside the genuine reasons we have to celebrate the coming of dialogic constitutionalism, we also have reasons for concern, particularly if we are not willing to modify the basic structure of the system of checks and balances on which it is usually based.
Although the executive detention of individuals outside the criminal justice system implicates the historical core of the writ of habeas corpus, there persists in this area a remarkable amount of disagreement over the nature of habeas corpus and its place in our constitutional system. This phenomenon is especially evident in Hamdi v. Rumsfeld, the 2003 Supreme Court case involving a challenge to the executive branch's detention, without charge, of a U.S. citizen alleged to be an enemy combatant. The case divided the Court, producing four opinions in all. Two of those opinions - a plurality by Justice O'Connor and a dissent by Justice Scalia - are particularly intriguing, especially when read against one another. Although both opinions adopted positions substantially favoring the alleged enemy combatant, they did so in radically different ways, reflecting starkly opposed visions of habeas corpus and the Suspension Clause, and, more deeply, the nature of the separation of powers in our constitutional system. This article takes up those differences. In particular, I aim to show that although Justice Scalia's dissent has been widely hailed as the most liberty-protective of all the Hamdi opinions, in fact it could, if adopted more broadly, pose a serious threat to the safeguards of liberty built into the law of habeas corpus and the Constitution itself. According to Justice Scalia, the government's only options with respect to U.S. citizen detainees are to charge them criminally, release them, or convince Congress to suspend habeas corpus. The problem, I argue, lies with the suggestion in the third of these options that suspending the writ is necessary and sufficient to authorize otherwise-unlawful detention. I contend that this view is both formally untenable and functionally undesirable. Formally speaking, suspending the writ simply removes a judicial remedy. It does not authorize any executive action that was not already permitted; unlawful detention remains unlawful even after the writ is suspended. Functionally speaking, Justice Scalia's approach requires one branch of government (the judiciary) to be read out of the equation in order for another (the executive) to act. But that is contrary to the basic principle of checks and balances established by the constitutional separation of powers. In contrast, Justice O'Connor's approach preserves a role for all three branches even in times of national security crisis. On one hand, by permitting Congress to authorize the executive branch to engage in extraordinary executive detention, Justice O'Connor embraced a process-based, institutionally oriented approach in the tradition of Justice Jackson's famous concurrence in the Steel Seizure Case. That is, Justice O'Connor adopted a judicial approach that privileges, and largely defers to, the joint action of the legislative and executive branches. On the other hand, Justice O'Connor also preserved for the courts a vital role in ensuring that the executive's use of the authority conferred by Congress comports both with the scope of the statutory grant and with basic constitutional demands. In this respect, her approach combines a general focus on second-order questions of institutional process with an attentiveness to at least some basic, first-order constitutional values. This approach, I argue, is most consistent with the three-branch structure of the Constitution.
Given law-school postmodernism's epistemo/ontology of juvenile anti-realist agnosticism, its commitment to Gadamerian and/or Derridean notions of linguistic indeterminacy, its monomaniacal dedication to centrifugal end-justifies-the-means Lefty politics, its abhorrence of commonly recognized conceptions of neutral principle, its concomitant disrespect for the very notion of truth, and its inextricably intertwined obsession with names and propensity for linguistic doublespeak, Professor Arrow confesses to initially wondering what it might "mean" to take anything uttered by a postmodernist "literally," or at "face value." But undaunted by that "paradox," Professor Arrow not only takes up Feldman's challenge to "critique postmodernism on its own terms" (by playing a pantomime Spaceball game with Feldman), but also critiques it logically-and (gasp!) pragmatically (not "pragmatically"). Maintaining the tonal and stylistic "playfulness" to which law-school pomoers profess to aspire (but in no known instance have achieved), Professor Arrow assures the reader that there will be numerous interesting (not "interesting") plot twists along the way. In the process, Professor Arrow also offers speculation about the way in which the postmodernists' ultimate contribution to American law schools is likely to be assessed-but cautions (as is appropriate under the circumstances) that you'll have to find it in a footnote.
In this Article, Professor Hartnett enters the longstanding debate over whether elected officials are obliged to follow the Supreme Court's interpretation of the Constitution Responding to a call by Professors Larry Alexander and Frederick Shauer for complete deference to judicial opinions-a stance echoed by a broad range of scholars, now including former antideference advocate Edwin Meese-Professor Hartnett attempts to identify, serious flaws in this position. He maintains that because the scope of the judicial role is narrowly limited to deciding cases and controversies, and not "pronouncing the law," there is a profound distinction between judgments and opinions. Therefore, we should not confuse deference with obedience and grant the Supreme Court a monopoly on constitutional interpretation.
The 1990s saw an exponential growth in the number and political sensitivities of claims by original owners of stolen art against good-faith purchasers of that art. These cases have challenged courts, threatened international relations, created public relations nightmares for museums, and generally shakem the art world. In defining whose claim should prevail as between original owners and good-faith purchasers, states and nations have adopted significantly varied rules to reach divergent resolutions of complicated issues of public policy and private right. In the relatively rare case in which the original owner/good-faith purchaser dispute is connected with a single state or nation, the application of that sovereign's chosen rules presumably furthers the sovereign's interest. When, as is much more often the case, the journey of the art and the domicile of the claimants link the dispute to more than one state or nation, the multijurisdictional character of the case may substantially complicate the issue of ownership. When implicated jurisdictions have been driven by different policy preferences to adopt different ownership rules, the result on a micro-level will be a choice of law that may well further a single state or nation's interest. The result on a macro-level is virtually certain to undermine all relevant policy aspirations. This Article explores the cause and effect of this universally unattractive results.
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