Volume 24, Issue 2
Volume 24 Number 2 Winter 1997
INTERPRETIVE METHODOLOGIES: PERSPECTIVES ON CONSTITUTIONAL THEORY
Alternative Visions of American Constitutionalism: Popular Sovereignty and the Early American Constitutional Debate.
By Christian G. Fritz
Scholars have argued that the enactment of our Constitution was the epitome of an American constitutional consensus. This Article, however, affirms that a vibrant debate about the Constitution continued long after its passage. By examining neglected original constitutional sources, this Article demonstrates that a dynamic tension existed throughout the nineteenth century about the meaning and implementation of "popular sovereignty," the principle underpinning our constitutional tradition.
Judicial Supremacy and Non-judicial Interpretation of the Constitution.
By Scott E. Gant
When do, and when should, actors other than judges interpret the Constitution? Over time, this question has received attention from many prominent political leaders. In recent years, it has generated a rich yet underexposed academic debate. This article seeks to draw attention to and further that debate.
This article has three main parts. The first is a survey of responses in academic literature to the question, "who interprets?" The Author argues that although judicial supremacy is widely embraced as a model of constitutional interpretation, other accounts raise serious challenges to its descriptive power and normative appeal. The second part of the article advances a revised model of judicial supremacy - one which retains the judiciary as the "ultimate" arbiter of what the Constitution means, but fosters the interpretative capacities of non-judicial actors, and vests their interpretations with enhanced significance. In the last part, the Author discusses several current legal issues that demonstrate the relevance and utility of the "who interprets" inquiry to constitutional interpretation at large.
Jewish Legal Theory and American Constitutional Theory: Some Comparisons and Contrasts.
By Samuel J. Levine
In recent years, American legal scholars have relied increasingly on Jewish law. Scholars have employed concepts from Jewish law in the analysis of health law, criminal law, legal ethics, legal interpretation, and constitutional law. Despite this trend, legal scholars continue to debate the value and validity of applying Jewish legal principles to American legal theory. This Article explores some of the ways in which Jewish law may shed light on issues in American constitutional theory. While acknowledging that there are fundamental differences between a religious legal system and a secular one, this Article argues that certain conceptual similarities between American Law and Jewish law allows for meaningful comparison of the two systems.
Justice Curtis's Dissent in the Dread Scott Case: An Interpretive Study
By Stuart A. Streichler
In the Dread Scott case, the Untied States Supreme Court ruled that no black, whether slave or free, could ever be a citizen of the United States and that Congress had no constitutional authority to prohibit slavery in federal territories. While this historically important case has been the subject of extensive commentary over the years, scholars have refrained from in-depth inquiry into Justice Curtis's dissent.
This Article analyzes Curtis's opinion in that case, with a view to unraveling his approach to constitutional interpretation. Contrary to the limited reading of citizenship attributed to Curtis, the Article argues that his theory of citizenship, though limited in some respects, was potentially far-reaching and that his view of the American political community was fundamentally egalitarian. On the territorial question, this Article offers a new explanation of Curtis's argument by showing that he relied mainly on constitutional structure to justify broad powers in Congress to regulate slavery in the territories.
Everything You Always Wanted to Know About How Amendments Are Made but Were Afraid to Ask
By Brendon T. Ishikawa
The single sentence in Article V of the United States Constitution governing the amending process fails to address three important questions: 1) May a state rescind its earlier ratification of a still pending amendment?, 2) Does an implicit ratification time limit exist? and 3) Who should declare an amendment effectively ratified? Various federal government brances and state legislatures have encountered these questions singly in the context of questionable ratifications of particular amendments. Unsurprisingly, the answers conflict.
This Article argues that these issues must be considered together and resolved under principles of federalism, separation of powers, and popular sovereignty. Ultimately, the Constitution's and Spirit requires that states remain free to rescind their earlier, that amendments not expire on their own, and that the Supreme Court reassume its role in clarifying the procedural rule of the amending process. This Article shows that the amendment process, often neglected in constutional scholarship, remains an integral part of the constitutional interpretive tradition.
Private Financing of Criminal Prosecutions and the Differing Protections of Liberty and Equality in the Criminal Justice System.
By Joseph E. Kennedy
Government Prosecutors have begun accepting, and in some cases soliciting, voluntary contributions from the private sector in order to finance certain types of criminal prosecutions. Such private financing introduces a new tension between society's interest in punishing the guilty and society's interest in equal treatment by the governement. Private financing of criminal prosecution also raises interesting questions as to whether institutions, as opposed to individuals, can be biased by money.
This Article concludes that private financing in any of its likely forms threatens important equality interests. Part I argues that conflict-of-interest rules provide the only protection for important equality interests implicated by prosecutorial decisions. Part II creates a framework for analyzing institutional bias created by private money and evaluates the conflicts of interest raised by various private financing arangements. Part III evaluates the economic efficiency and victim's rights arguments in favor of private financing and concludes that private financing serves those interests selectively, at best, and inevitably at the expense of important equality interests.