Showing papers on "Substantive due process published in 1999"

Rethinking the New Deal court : the structure of a constitutional revolution

Abstract: Rethinking the New Deal Court challenges the prevailing account of the New Deal era Supreme Court, which holds that in the spring of 1937 the Court suddenly abandoned jurisprudential positions it had staked out in such areas as substantive due process and commerce clause doctrine. In this view, the impetus for such a dramatic reversal was provided by external political pressures manifested in FDR's landslide victory in the 1936 election, and by the subsequent Court-packing crisis. Author Barry Cushman, by contrast, discounts the role that political pressure played in securing this "constitutional revolution." Instead, he reorients study of the New Deal Court by focusing attention on the internal dynamics of doctrinal development and the role of New Dealers in seizing opportunities presented by doctrinal change. Recasting this central story in American constitutional development as a chapter in the history of ideas rather than simply an episode in the history of politics, Cushman offers a thoroughly researched and carefully argued study that recharacterizes the mechanics by which laissez-faire constitutionalism unraveled and finally collapsed during FDR's reign. Identifying previously unseen connections between various lines of doctrine, Cushman charts the manner in which Nebbia v. New York's abandonment of the distinction between public and private enterprise hastened the demise of the doctrinal structure in which that distinction had played a central role.

Tribes, treaties, and constitutional tribulations

Abstract: Introduction Chapter I. Europeans and the New World Chapter II. The Articles of Confederation Chapter III. The Constitution and American Indian Tribes The Federalist Papers Explicit Clauses Dealing with Indians Implicit Clauses Dealing with Indians Chapter IV. The Relationship of Indian Tribes to the Three Branches of the Federal Government Indians and the Executive Branch Indians and the Legislative Branch Indians and the Judicial Branch Chapter V. The Historical Development of Constitutional Clauses The Treaty-making Power The Power to Regulate Commerce The Property Clause Miscellaneous Constitutional Clauses Chapter VI. The Constitutional Amendments The Bill of Rights The First Amendment: The Establishment of Religion The First Amendment: The Free Exercise Clause The Lyng Decision The Smith Decision The First Amendment: Freedoms of Speech and Assembly The Fourth Amendment: Search and Seizure The Fifth Amendment: Double Jeopardy The Fifth Amendment: Due Process The Fifth Amendment: Just Compensation The Sixth Amendment: Legal Counsel Chapter VII. The Later Constitutional Amendments The Thirteenth Amendment The Fourteenth Amendment: Citizenship and Due Process The Fifteenth Amendment The Sixteenth Amendment The Prohibition Amendments The Twenty-sixth Amendment Chapter VIII. The Status of Indian Tribes and the Constitution Notes References Index of Cases Ceneral Index

The Oxymoron Reconsidered: Myth and Reality in the Origins of Substantive Due Process

Abstract: The view that the due process clauses of the Constitution impose substantive restraints on governmental power has long been a subject of contention. It has become an article of faith in some quarters that due process pertains entirely to matters of procedure. Thus, John Hart Ely maintained: \"[W]e apparently need periodic reminding that 'substantive due process' is a contradiction in terms-sort of like 'green pastel redness.\"'' Other observers have also derided substantive due process as an \"oxymoron.\"2 Similarly, Robert H. Bork considers substantive due process to be \"a momentous sham\" that \"has been used countless times since by jud:fes who want to write their personal beliefs into a document.\" Of course, substantive due process has not been so easily banished from the constitutional dialogue as these dismissive comments suggest. As historians are well aware, federal and state courts relied on a substantive interpretation of due process in the nineteenth and early twentieth centuries to vindicate economic liberty. Following the political triumph of the New Deal,

We the People: The Fourteenth Amendment and the Supreme Court

Abstract: Preface 1. Introduction: "The Judicial Usurpation of Politics" 2. What is "the Constitution" (And Other Fundamental Questions) 3. The Fourteenth Amendment: What Norms Did "We the People" Establish? 4. The Fourteenth Amendment and Race: Segregation and Affirmative Action 5. Beyond Race: Sex and Sexual Orientation 6. Further Beyond: Abortion and Physician-Assisted Suicide 7. Concluding Reflections

The Constitutionality of Mandatory Public School Community Service Programs

Abstract: RODNEY A. SMOLLA [*] I INTRODUCTION Proposals for public service programs have long had currency in America, and may be gaining a certain millennium momentum in current public debate. While proposals for national public service programs of varying ambition and scope continue to be debated, [1] at the local level a growing number of U.S. public school districts are implementing community service programs for high school students. [2] Community service programs generally require students to complete a specified number of hours of service as a condition for graduation. [3] In a typical program, a student may be required to complete forty to sixty hours of community service with organizations or agencies on an approved community service list during their high school years. There are often modest academic or introspective components to a community service program, such as a requirement that a student compose a paper reporting or reflecting upon his or her community service. [4] As with all innovations in U.S. public life, such programs are inevitably challenged in the courts. At first blush, the challenges appear plausible: These programs are forced labor of sorts, an oxymoronic coerced volunteerism, the imposition of a particular philosophic vision of civic duty and community life on the whole student populace, and the cry that this just can't be constitutional is at least colorably serious. Constitutional challenges to community service programs may be divided into two generic types--those raised by students or parents who object to the requirement of community service, and those raised by students, parents, organizations, or agencies who object to the selection criteria used to include or exclude organizations or agencies eligible to participate in community service programs. The first form of challenge will involve someone who claims to be a "conscientious objector" to compelled community service. The objection may be broadly articulated, contesting the entire idea of coerced community service, or it may be more narrowly conceived, claiming that for reasons unique to a certain student, participation in a community service program of a particular design violates the student's constitutional rights. Broad objections are likely to be grounded in the claim that community service is a form of involuntary servitude prohibited by the Thirteenth Amendment, or a deprivation of the students' or parents ' liberty protected under the substantive due process principles that have evolved from the Due Process Clause of the Fourteenth Amendment. More targeted challenges are likely to be grounded in First Amendment arguments, such as claims that for a particular student, participation in a community service program violates the student's rights of freedom of association, freedom against forced speech, or the free exercise of religion. Challenges to the selection criteria used to determine which groups are eligible for participation in community service programs may attack either a decision to keep a particular organization on or off of the "approved list" of participants, or a decision to include an organization or agency on the list. Thus, a service program operated by a local church might be excluded by a school board from participation on the ground that inclusion would violate principles of separation of church and state. The church might sue the school board, claiming that the exclusion of the church service program, when other similar programs run by secular organizations are not excluded, violates the Free Exercise Clause of the First Amendment. Or, imagine that a local chapter of the Ku Klux Klan creates what purports to be a community service program, and a school board refuses to include the program, on the ground that the Klan's racist agenda renders it inappropriate for participation in any joint venture with public schools. T he Klan might sue to challenge its exclusion, arguing that such ideology-based decisionmaking by the school board amounts to viewpoint discrimination prohibited by the Free Speech Clause of the First Amendment. …

Landmark Supreme Court Cases: A Reference Guide

Abstract: Preface Separation and Distribution of Powers The Power of Judicial Review The Power of the President The Power of Congress Power to Regulate or Affect the National Economy Federal Power to Regulate Interstate Commerce State Police Power and the Dormant Commerce Clause Federal Preemption of State Law Privileges and Immunities Equality Concepts Economic Regulation Racial Issues Gender Issues Fundamental Rights Individual Rights and Liberties The First Amendment: Freedom of Speech The First Amendment: Freedom of Association The First Amendment: Freedom of the Press The First Amendment: Freedom of Religion The Fourth Amendment: Search and Seizure The Fifth Amendment: Self-Incrimination The Sixth Amendment: The Right to Counsel The Eighth Amendment: Cruel and Unusual Punishment The Fourteenth Amendment Glossary Appendix A: Cases Appendix B: The Constitution of the United States Index

Due Process, Jurisdiction and a Hague Judgments Convention

Abstract: Due process is perhaps one of the most misunderstood concepts in the U.S. legal system, especially as it appears to those outside the United States. For lawyers trained in the United States, 'due process' becomes a phrase with special meaning resulting from the study of a number of judicial decisions, especially those of the U.S. Supreme Court. For lay persons, and for lawyers from other countries, discussions of 'due process' may not always provide a clear understanding of what that phrase means in the U.S. legal system. This paper discusses the historical development of the concept of due process in U.S. law, particularly as it relates to issues of jurisdiction and the recognition and enforcement of judgments in U.S. courts. Like many aspects of amendments to the United States Constitution, the Due Process Clauses of the Fifth and Fourteenth Amendments provide limitations on the federal and state governments. This paper provides a historical look at the term as applied in U.S. jurisdiction decisions, and compares that approach with the due process implications of jurisdictional issues under the Brussels Convention in Europe. It also explains how due process limitations on jurisdiction result in limitations on the negotiating authority of the United States in the context of multilateral conventions on jurisdiction and the recognition and enforcement of judgments.

Will, Judgment and Economic Liberty: Mr. Justice Souter and the Mistranslation of the Due Proces Clause

Abstract: The modern law of substantive due process provides disparate treatment to certain “personal” rights, on the one hand, and so-called “economic rights,” on the other. Thus, laws that interfere with “liberty of contract” or regulate the use of property without destroying its value pass constitutional muster if a court can hypothesize a “rational basis” for the enactment. By contrast, courts subject laws burdening certain personal liberties, including the so-called right of privacy, to more intensive scrutiny and such provisions rarely survive judicial review. The most complete judicial explanation for this disparate treatment of economic and other rights can be found in two opinions — one a plurality opinion and one a concurrence — authored or co-authored by Justice Souter: Planned Parenthood v. Casey and Washington v. Glucksberg. Taken together, these opinions mount a comprehensive “original meaning” defense of the enterprise of substantive due process, while at the same time insisting that decisions such as Lochner v. New York and Adkins v. Childrens’ Hospital, each of which accorded significant protection to liberty of contract, were incorrect and, in addition, properly overruled. According to the Justice, “substantive due process” has a long historical pedigree, and the duty of judicial review articulated in Marbury v. Madison requires judges to employ the due process clauses to protect certain fundamental liberties. Ironically, in his Glucksberg concurrence, Justice Souter invoked decisions and scholarly commentary from the 19th and early 20th century recognizing economic liberties to help build his case that substantive due process has a deeply rooted historical pedigree. This article evaluates Justice Souter’s effort to justify the bifurcation between economic and other rights in the due process context. Both Casey and Glucksberg, it is shown, suggest or adumbrate several bases for “translating” the principles purportedly contained in the Due Process Clauses and enforced during the Lochner era, in light of changed economic circumstances. These changes, it is said, undermine the rationale for protecting economic liberties and supposedly required the Court to overrule the numerous and deeply-rooted decisions that did protect such liberties. Various constitutional scholars have offered similar translation-based justifications for abandoning meaningful protection for economic liberty in the due process context. None of the translations offered or hinted at by Justice Souter withstands scrutiny. For instance, Justice Souter and others have argued or adumbrated the claim that protection for economic liberties somehow brought on or exacerbated the Great Depression, and that abridgment of economic liberties was necessary to counter-act the Depression and stabilize the national economy. This claim has no basis in macroeconomic theory, which if anything suggests that many New Deal-era abridgments of contractual liberty, including the National Industrial Recovery Act, actually interfered with the process of normal economic adjustment, stultified economic expansion and thereby prolonged the Depression. Moreover, contrary to the Justice’s suggestion, no changed circumstances established that decisions protecting economic liberty somehow prevented states and the national government from assuring “minimal levels of human welfare.” Real wages rose during the Lochner era, thereby increasing human welfare. In addition, no aspect of the Court’s economic liberty jurisprudence prevented states and/or the national government from enhancing human welfare by means of redistributive taxation and spending. Furthermore, no “changed circumstance” suggested that employers were the sole beneficiaries of their employees’ labor or uniquely responsible for employees’ economic plight. Thus, no “new facts” justified repudiation of Adkins, for instance, which rested upon the purely normative judgment that minimum wage regulation was an invalid means of redistributing income between employers and employees, given the alternative of taxpayer-funded social programs. Finally, the apparent suggestion by Justice Souter and others that the presence of unequal bargaining power somehow justified wholesale repudiation of economic liberty cannot be taken seriously. Even if some industries are characterized by such unequal bargaining power, many, like the baking industry in Lochner, are not, and the presence of unequal bargaining power in some industries cannot justify trumping economic liberty in those industries that are highly competitive. In any event, none of Justice Souter’s suggested translations, either alone or taken together, even purports to justify the wholesale repudiation of economic liberty. Instead, each such translation merely purports to justify the reversal of decisions protecting liberty of contract from state or federal abridgment. None purports to justify the failure to protect other forms of economic liberty, particularly the liberty to pursue one’s occupation without harming others. Thus, decisions such as United States v. Carolene Products, that sustained statutes banning entire harmless industries without justification, cannot be justified as “translations” of earlier decisions, such as New State Ice Company v. Liebmann, that provided robust protection for occupational liberty. Justice Souter and other proponents of “translation” have thus failed to offer a convincing rationale for their repudiation of the sort of economic liberties protected under the aegis of the due process clause during the Lochner era. Absent some new explanation for this repudiation, the failure to protect economic liberties calls into question the assertion by Justice Souter and others that the disparate treatment of economic and other rights can be explained as a faithful application of the original meaning of the Due Process Clause.

The Frankenstein Controversy: The Constitutionality of a Federal Ban on Cloning

Abstract: Part I of this Article begins with a description of the science of cloning and concludes with a history of cloning research, both of which provide a much needed perspective on the current national debate over cloning. Part II summarizes the President's proposed cloning legislation, as well as the bills introduced in Congress since February of 1997, when Dolly's birth was announced. The quality of the drafting of these proposals suggests caution, because poorly crafted legislation leads to unintended consequences. Part III examines the federal response to cloning in the context of Supreme Court Commerce Clause jurisprudence. Part III concludes that Congress may ban cloning pursuant to its power to regulate interstate commerce, notwithstanding the Supreme Court's recent decision in United States v. Lopez. Finally, Part IV provides an analysis of the Supreme Court's substantive due process cases involving the right of personal privacy. The trends in the Court's case law strongly suggest that a majority of the current Court would hold that a federal government ban on cloning would not violate the Fifth Amendment's Due Process Clause. Although the reasoning used by individual Justices may vary, it is likely that a majority of the current Court would conclude that the right to use and have access to cloning technology is not a fundamental right protected by the Constitution.

Will, Judgment, and Economic Liberty: Mr. Justice Souter and the Mistranslation of the Due Process Clause

Abstract: Among other things, the Fourteenth Amendment forbids the deprivation of "liberty" without "due process of law."(1) To many, the Due Process Clause means what it says, that is, it merely requires states to follow certain procedures before depriving someone of liberty.(2) Others, however, maintain that the clause has a "substantive" component that limits the authority of the state over certain rights, even if fair procedures have been employed to abridge them.(3) Of course, a conclusion that the Due Process Clause provides substantive protection for certain liberties begs two important questions: which liberties, and how much protection? The logical place to begin, it might seem, would be with the meaning attached to the Due Process Clause when the Fourteenth Amendment was written and ratified. An investigation of that meaning, many have argued, would reveal that the Framers and Ratifiers believed that the phrase "liberty" referred to the right to contract and the right to pursue an occupation--rights that were subject to abridgement only in certain narrow circumstances.(4) Still, for decades, the Supreme Court has refused to offer even the slightest protection for liberty of contract and liberty of occupation under the aegis of the Due Process Clause.(5) Similarly, many influential scholars embrace the distinction drawn by modern constitutional doctrine between economic liberties and so-called personal rights.(6) Predictably, this bifurcation between economic and other rights has led to the charge that the Supreme Court and the scholars who endorse this bifurcation have invoked substantive due process selectively, in furtherance of value choices not discernible from the Constitution.(7) For those few scholars who subscribe to the theory of "constitutional moments," this charge is easy to rebut. As they see things, the Due Process Clause was effectively amended in 1937.(8) This amendment did not take the form required by Article V. Instead, "The People," after significant mobilization and political deliberation, rejected the protection accorded economic liberties in substantive due process decisions such as Adkins v. Children's Hospital(9) and Lochner v. New York.(10) The Supreme Court confirmed this amendment, it is said, in West Coast Hotel Co. v. Parrish(11) and United States v. Carolene Products Co.,(12) in which the Court abandoned aggressive protection for liberty of contract and liberty of occupation respectively.(13) Thus, even if decisions such as Lochner and Adkins were faithful renderings of the Fourteenth Amendment's original meaning, these scholars say, the events of 1937 superseded that meaning.(14) Because this purported "amendment" did not repudiate substantive due process as such, nothing about it was inconsistent with recognition of non-economic liberties,(15) such as the so-called right of privacy announced in Griswold v. Connecticut(16) and applied in subsequent decisions, such as Roe v. Wade.(17) Many scholars have rejected the theory of constitutional moments.(18) Moreover, while scholars can speak of constitutional moments, judges cannot. Whatever their true interpretive theories, our legal culture ensures that judges at least purport to explain their decisions as faithful interpretations of our written Constitution, a document that does not always include the "amendments" produced by constitutional moments.(19) In so doing, they must rely upon the traditional sources of meaning: text, structure, and history.(20) They must appear to exercise judgment, rather than will, implementing decisions not their own.(21) Because the purported Constitutional Moment of 1937 did not produce any changes in constitutional text, we would not expect judges to explain the repudiation of Lochner and Adkins by invoking the "amendment" of 1937. Moreover, scholars wishing to influence judicial doctrine must provide an account of 1937 that is consistent with common conceptions about the judicial role. …

The Right to Die and the Ninth Amendment: Compassion and Dying after Glucksberg and Vacco

Abstract: The Ninth Amendment acknowledges that people have not given the government the power to infringe upon "rights .... retained by the people." Identification of those rights is best accomplished by applying a standard of determining whether the failure to infringe those rights would create a clear and direct danger of harm to others. Recognizing the fundamental human right to control one's own body and to determine the manner and timing of one's own death does not create a "clear and direct danger of harm to others." Euthanasia, or the practice of killing others for purported reasons of "mercy" without the victim's informed consent, has nothing to do with the practice of physician-assisted suicide. The Oregon Death with Dignity Act represents an important first milestone on what is sure to be a long and difficult road toward recognition of the fundamental human right to die. The next major step will be to assert a Ninth Amendment right to die before the United States Supreme Court. The plaintiffs in Glucksberg and Vacco failed to press this argument. Thus, the existence of a Ninth Amendment right to die therefore remains an open legal question -- even if the current Court shows little indication that it wishes to rely upon the Ninth Amendment in deciding cases. Until the Ninth Amendment issue is addressed, the right to die will continue to be evaluated under the Fourteenth Amendment, where it receives no protection. Under the Due Process Clause, courts examine whether an asserted right is "deeply rooted in this Nation's history and tradition." Yet this is the wrong question and therefore provides the wrong answer. As in Bowers, in which the Court found no "history and tradition" of oral sex between married individuals, or in Buck, in which Oliver Wendell Holmes upheld forced sterilization on grounds that "three generations of imbeciles are enough," conclusions based on a Due Process analysis will diverge from what a sound Ninth Amendment analysis would provide.If courts fail to recognize the right to die under the Ninth Amendment, it will be necessary to continue the process of legalization state by state through ballot initiatives and statutes. This is unfortunate. If Roe had left the question of the right of a woman to control her own body to each state, we would now be enduring the spectacle of the balkanization of states on the issue of abortion, complete with underground railroads, continual challenges to the full faith and credit clause, and annual battles in the legislatures of each state. As the case of Ray Frank illustrates, acknowledging a fundamental right to die will substantially reduce suicides in the United States. A cause of death which takes the lives of one percent of the American population rightly deserves to be called an epidemic. Suicide is an epidemic in the United States. Only by recognizing the fundamental right to die can the scourge of suicide be abated, and the lives of millions of suffering people be saved or prolonged.

State Regulatory Jurisdiction and the Internet: Letting the Dormant Commerce Clause Lie

Abstract: I. INTRODUCTION Cyberspace2 seems to pose a dual threat to "Our Federalism."3 Only one aspect of this threat, however, has captured the scholarly imagination. Commentators have devoted a great deal of attention to the problems of horizontal federalism raised by the new technology.4 Cyberspace, they point out, is a profoundly integrative social and economic force. As a result, local legislation touching on cyberspace is likely to produce effects beyond local borders.5 State laws like a recently deceased Georgia statute that arguably would have prohibited all Internet users from "falsely identifying" themselves onlines convince observers that the information superhighway is a dangerous new means for states to export their legislative products to other jurisdictions. Although the danger is more potential than actual, the pages of recent law reviews echo with calls for preemptive federal legislation,' or more commonly, for self-regulation with minimal governmental interference. The more strident of these calls highlight the cyberspace threat that has largely been ignored: the threat to vertical federalism. Cyberspace imbues state regulation with tremendous potential for extraterritorial effect, potential which invites the federal judiciary to cut down a broad swath of state law. This invitation is made all the more appealing by the rather amorphous nature of the Supreme Court's extraterritoriality jurisprudence. The Constitution contains no explicit command forbidding states from projecting their legislation beyond their own borders. The Court might be expected to infer that directive from constitutional structure,9 but instead has sited the proposition in a succession of unlikely textual locales: the Contracts Clause, the Full Faith and Credit Clause, and the Due Process Clause.10 The current locus of the extraterritoriality principle seems to be a line of dormant Commerce Clause cases stemming from Edgar v. MITE Corp.11 One commentator has dubbed Edgar and its progeny "the new territorialism;"12 others have seized on the cases' seeming insistence on strict territorial sovereignty and suggested that the dormant Commerce Clause seriously curtails states' ability to regulate the Internet.lg Such expansive readings of the cases have found an appreciative audience in the Southern District of New York, where, in American Libraries Ass'n ["ALAr v. Pataki,l4 a federal court flatly ruled that states have no jurisdiction to enact cyberlaw.ls The prospect of the states being stripped of their traditional powers to provide for the health, safety, and morals of their citizensl6 while in cyberspace has excited surprisingly little academic commentary. This silence is especially odd given the general agreement that "[flederalism is exceedingly popular these days."17 This Note seeks to redress the imbalance between horizontal and vertical federalism concerns. Placing the Edgar family of cases in the broader historical context of the Supreme Court's extraterritoriality rulings reveals that the dormant Commerce Clause is not nearly so destructive of state sovereignty as has recently been supposed. Rather, the cases document the Court's struggles with the concern that states regulate only those enterprises that bear a substantial relation, or "nexus,' to state interests. Historically, the roots of this notion rest in substantive due process. Today, however, the nexus concern survives quite explicitly in a subset of dormant Commerce Clause cases-tax cases. Why courts apply the nexus concept to tax cases but not others poses a disturbing question; there is very little reason to think that "jurisdiction to tax" should be much different from "jurisdiction to regulate." This Note argues that modern extraterritoriality cases like Edgar do in fact reflect nexus concerns, rather than the Court's announced dormant Commerce Clause analysis, and properly so. Recognition of distinct nexus issues sheds considerable light on state power to regulate Internet conduct. …

Chief Justice Marshall in the Context of His Times

Abstract: There are many things to admire in Professor Wood's presentation.1 Not least is the admirable mix of scholarship and common sense along with a rare gift for making complicated ideas understandable. In these traits, he is not unlike John Marshall himself. Professor Wood's presentation also is admirably heuristic - important for the questions it raises as well as for the answers it gives. In this essay, I will touch on some of the points I found most inviting. One point has to do with Wood's insistence on placing Marshall and judicial review in the context of history. Contextualization has, in fact, been the tendency of much recent Marshall scholarship. By tracking the development of judicial review into the nineteenth and twentieth centuries, recent scholars have shown persuasively that Marshall's formulation of judicial review in Marbury v. Madison2 was much more inchoate and restrained than scholars once assumed. The hey-day of judicial review, in fact, came in the late nineteenth and early twentieth century with the Court's foray into substantive due process (ironically during one of its most conservative phases). Decisions by "liberal" majorities in more recent cases like Brown v. Board of Education,3 Roe v. Wade,4 and even the less controversial Baker v. Carr5 represent a law-making exercise of judicial power that makes Marshall's position in Marbury look very modest indeed. By avoiding the pitfall of anachronism (and escaping the long shadow of Albert Beveridge's hagiographic biography), recent scholars have performed a much needed service. The danger, however, as Professor Wood rightly reminds us, is in diminishing Marbury (and Marshall) too much. Revisionist scholars draw heavily on historical perspective. Wood asks us to consider their conclusions in the same light. Their perspective is judicial review in the nineteenth and twentieth centuries; Wood's perspective is judicial review (or the lack of it) in the seventeenth and eighteenth centuries. What strikes him about the judiciary during this early period is how constricted it was both in England and in the colonies. Even if we concede that Marshall's definition of judicial review in Marbury was neither sweeping nor definitive, the compelling truth remains: Under his guidance and in a relatively short period of time, judicial review became a standard feature of American government. And so it has continued to be. Not unsurprisingly, Marbury remains the pivotal decision and John Marshall the epic hero of the story. Several thousand citations by the Supreme Court over the years speak to the point, as does the fact Marbury and Marshall invariably are called on by the Justices when they need to defend the Court from its critics or to speak authoritatively on controversial issues. When Wood reaffirms Marbuy's prominence, then, he has the Supreme Court of the United States in his comer. Efforts to understand the intricacies of the case will no doubt continue, and scholars will continue the search for Marshall's complex and elusive motives. Marbury's place, however, in the pantheon of great cases, is secure. So also, I suspect, is the assumption that John Marshall is the undisputed father of judicial review - even though the story is much more complicated. This assumption brings me to yet another question: Why, given the limitations of Marshall's actual opinion (as well as its lack of originality) does Marbury continue to loom so large in the grand narrative of American constitutional history? Why must we have one great dazzling moment, one great decision, one representative legal giant? One reason for Marbury's mythic status (and Marshall's too), I submit, is institutional in nature. Simply put, the Supreme Court as an institution takes care of its own - and is uniquely equipped to do so. Marshall and Marbury, the two inextricably linked in public memory, have been celebrated and memorialized in countless ways over the years by all sorts of people and groups. …

Taking the Pennsylvania Constitution Seriously When it Protects the Environment: Part I - An Interpretative Framework for Article I, Section 27

Abstract: Article I, Section 27 of the Pennsylvania constitution does something that statutes and regulations cannot do; it makes environmental and historic protection part of the constitutional purpose of state government. This two-part Article explains how the Amendment accomplishes that purpose and what it should mean for Pennsylvania, and suggests the value of similar inquiries under other state and national constitutions. Pennsylvania's experience is particularly important in understanding such provisions because Article I, Section 27 is the most prominent environmental amendment to a state constitution. Part I of this Article suggests an interpretative framework for understanding the Amendment that is based on its text, legislative history, and purposes. First, the Amendment creates two separate constitutional rules - one concerning the public's right to clean air, pure water, and the preservation of certain environmental values; and the other creating a public right in the conservation and maintenance of public natural resources.Second, Article I, Section 27 gives the environment the same legal protection that other provisions of the state constitution give to individual property rights. The Amendment, when balanced by provisions protecting property rights, is thus not anti-development. Rather, it is directed toward environmentally sustainable development.Third, Article I, Section 27 needs to be understood primarily on the basis of governmental responsibilities. While citizen rights are an essential part of the Amendment, such rights should be directed primarily at enforcement of the government's duties.Finally, when legislation or administrative regulation provides as much protection as Article I, Section 27, or even more protection, there is no need for judicial enforcement of the Amendment. Where legal gaps exist, however, courts should enforce the substantive rules contained in the Amendment. Courts should also use Article I, Section 27 to support the application of other legal rules. These four premises create a framework for understanding the environmental rights and public trust parts of the Amendment, which are discussed in detail in Part II of this Article.

The Fragmented Liberty Clause

Abstract: This conference charitably opens with a gift. Its organizers begin by granting to substantive due process the right to exist. This is hot a small or insignificant gift. Political experience suggests how big a step it is for one antagonist to grant the other's right to exist. With that matter conceded, it seems, the contenders need hot fight the battle for legitimacy, but may devote all their energies to the definition of boundaries. But this gift is a Trojan Horse; it poses a menacing challenge hidden deep within. If the proponents of substantive due process cannot defend its boundaries satisfactorily, then evidently the principle of enforceable liberty itself is at risk of being banished to oblivion with a pronouncement of illegitimacy across the board. Alan Meese admits as much: The absence of such an explanation [for the way in which the Supreme Court has treated liberty], or, what may be worse, the provision of an explanation that will not withstand scrutiny, suggests that the distinction between personal rights and economic rights, and, with it, the legitimacy of the enterprise of substantive due process, is an illusion.(1) This Essay is an effort to rout the troops crouched in the bowels of the marvelous Horse, to challenge them with a strong offensive charge on behalf of vigorous liberty protection under the Fourteenth Amendment. More prosaically, my purpose is to suggest some of the limitations of what I will call the "conservative critique" of substantive due process, a critique taken up in Meese's paper.(2) The foundation of that critique is that, because the Framers valued some of the types of liberty that we now call economic rights, modern courts should give robust protection to these rights, and only these rights, against most types of government regulation.(3) The judiciary's failure since 1937 to do so, the critique maintains, constitutes a breach of fidelity to the Constitution itself and casts serious doubt on any judicial effort to protect liberties of any kind from state abridgment. The conservative critique propounds impoverished notions of both liberty and fidelity. This Essay offers some reminders about the development of liberty in this country, as well as some historical, theoretical, and common sense considerations that might guide us in the development of a better approach to the protection of liberty under the Constitution. Professor Meese is on the right track when he questions the relatively recent splitting of liberty into two distinct categories, economic and personal.(4) He correctly questions the Supreme Court's decision to apply strict scrutiny to laws curtailing personal liberties while seeking only a rational basis fort laws impinging upon economic liberties. This artificial pigeonholing--particularly when the arbitrary choice of pigeonhole has such radically significant consequences--serves neither history nor principle. Though I grant Meese this first step of his argument, my concession ends here. Meese goes astray when he suggests that the categories themselves are meaningful, but that if substantive due process is to be "principled,"(5) then the specific freedoms occupying privileged and nonprivileged positions should simply switch places. He does hot go far enough in taking on the categorical jurisprudence that characterizes modern analysis of liberty under the Due Process Clause. In place of the dichotomous reasoning that has developed around the question of constitutional liberty, I propose a more integrated, common sense understanding of the place of liberty in the roster of individual rights protected by judicial scrutiny under the Fourteenth Amendment. A critical comment on the conservative critique of substantive due process, which would still allow for the fragmenting of liberty into two categories, is one step in the process of reaching that goal. This Essay discusses the way in which courts have traditionally understood a constitutional claim to liberty under the Due Process Clause, suggesting that liberty did hot originate as a fragmented or hierarchical notion. …