Frank I. Michelman

Robert Walmsley University Professor, Emeritus

Langdell 334

617-495-4628

Assistant: Isaac Moore / 617-496-1760

Biography

Frank I. Michelman is Robert Walmsley University Professor, Harvard University, where he has taught since 1963. He is the author of Brennan and Democracy (1999), and has published widely in the fields of constitutional law and theory, comparative constitutionalism, South African constitutionalism, property law and theory, local government law, and general legal theory. Professor Michelman is a fellow of the American Academy of Arts and Sciences and a past President (1994-95) of the American Society for Political and Legal Philosophy. He has served on the Committee of Directors for the annual Prague Conference on Philosophy and the Social Sciences, the Board of Directors of the United States Association of Constitutional Law, and the National Advisory Board of the American Constitution Society. In 2005, Professor Michelman was awarded the American Philosophical Society’s Phillips Prize in Jurisprudence and, in 2004, the Brigham-Kanner Property Rights Prize.

In January, 1995, and again in January 1996, Professor Michelman served as a co-organizer and co-leader of Judges’ Conferences sponsored by the Centre on Applied Legal Studies of the University of the Witwatersrand, devoted to matters of constitutional law in South Africa. In December, 2011, Professor Michelman delivered the keynote address for a multi-day Conference on “The 20th Anniversary of Israel’s Human Rights Revolution,” at a session held at the Knesset, Jerusalem.

Areas of Interest

Frank I. Michelman, Proportionality Outside the Courts (With Special Reference to Popular and Political Constitutionalism), in Proportionality: New Frontiers, New Challenges (Vicki Jackson & Mark Tushnet eds., Cambridge Univ. Press, forthcoming 2017).
Categories:
Constitutional Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Constitutional History
,
Legal Theory & Philosophy
Type: Article
Abstract
As used in this paper, “proportionality” names a protocol for use in deciding questions of the constitutionality of laws. The protocol is typically understood to consist of a four- or five-step order of decisional march, of which there are multiple close-kindred versions in circulation. Debates about the virtues, vices, and variations of the protocol and its deployment routinely construct the theater of action as a court of law engaged in judicial constitutional review. Adjudicative use of the protocol is what we think of as the central case. An aim of this paper is to achieve some first steps towards figuring out what relevance, if any, the protocol of proportionality might have for “extended” cases (as we may call them) of constitutional discourses outside the courts. I try here to think about the protocol’s pertinence, if any, to political-practice idealizations in which other political actors displace independent judiciaries as sole or final arbiters of constitutional compliance.
Frank I. Michelman, A Constitutional Horizon?, 42 Phil. & Soc. Criticism 640 (2016).
Categories:
Constitutional Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
Type: Article
Abstract
In The Democratic Horizon: Hyperpluralism and the Renewal of Political Liberalism, Alessandro Ferrara seeks a philosophical breakthrough from what looks like it could be a pending dead-end for democracy. The best hope, Ferrara superbly maintains, lies through an extension or updating – a “renewal,” as he calls it – of lines of thought bequeathed to us, by John Rawls and others, under the name of political liberalism. Somewhere near the crux of Ferrara’s reflection stands a class of institutional fixtures whose name is missing from his title. I mean the class “constitution.” I use that word to name a country’s scriptural basic law, its publicly cognizable corpus of canonically worded sentences ordaining the country’s basic institutional framework. My suggestion will be that it is no less tellingly a “constitutional” than a “democratic” horizon that Ferrara’s work, in conjunction with Rawls’, shows us to be facing.
Frank I. Michelman, The Ghost of the Declaration Present: The Legal Force of the Declaration of the Declaration of Independence Regarding Acts of Congress, 89 S. Cal. L. Rev. 575 (2016).
Categories:
Constitutional Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Constitutional History
,
Legal Theory & Philosophy
Type: Article
Abstract
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.
Frank I. Michelman, The Unbearable Lightness of Tea Leaves: Constitutional Political Economy in Court, 94 Tex. L. Rev. 1403 (2016).
Categories:
Constitutional Law
,
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Constitutional History
,
Legal Theory & Philosophy
,
Courts
Type: Article
Abstract
Frank Michelman offers a critical discussion of the sense—if any—in which Fishkin and Forbath’s argument is a constitutional argument. He carefully teases out some different senses in which such an argument makes claims about the Constitution in court. He asks whether Fishkin and Forbath are essentially opening the door to an unraveling of the New Deal settlement, and a return of what Holmes called “economic theory” to the work of the courts. And finally, he questions why the argument contains much talk of the Constitution, but relatively little talk of constitutional rights.
Frank I. Michelman, Good Government, Core Liberties, and Constitutional Property: An Essay for Joe Singer, 5 Brigham-Kanner Property Rights Conf. J. 27 (2016).
Categories:
Property Law
Sub-Categories:
Property Rights
,
Eminent Domain
Type: Article
Frank I. Michelman, Legitimacy, The Social Turn and Constitutional Review: What Political Liberalism Suggests, 3 Critical Q. Legis. & L. 183 (2015).
Categories:
Constitutional Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Constitutional History
,
Legal Theory & Philosophy
Type: Article
Abstract
Alongside the regulative and integrative functions we theorize for constitutions, a function of legitimation perhaps deserves a focus of its own. By legitimation, I mean the social and communicative processes by which a country’s people sustain among themselves a sense of assurance of the deservingness of its political regime of general and regular support. On the level of political philosophy, the idea of the constitution as a platform for legitimation finds expression in John Rawls’s proposal – named by him as “the liberal principle of legitimacy” – that enactments by political majorities can be justified to dissenters in any given case (regardless of which side of the case you might think true justice and policy would favor) by a showing that the winners have acted within the terms of a good-enough (in the paper’s terms, a “legitimation-worthy”) constitution. The Rawlsian proposal figures as one for what the paper calls “legitimation by constitution” or “LBC.” The paper posits, as a hypothesis, the activity of this idea in a population’s political consciousness, with a view to tracing resultant effects on constitutional-legal practice and debate. As a prime case in point, the paper points to an apparent correlation, within the world of broadly-speaking liberal constitutional thought, of a recent spread of receptivity to the idea of “weak-form” judicial constitutional review with a spread, within that same world, of conviction that a legitimation-worthy constitution would have to include guarantees respecting the so-called socioeconomic rights of citizens vis-a-vis their states. The paper suggest that LBC (the idea) provides a hinge between these two developments.
Frank I. Michelman, Book Review, 22 Constellations 614 (2015) (reviewing Alexander Somek, The Cosmopolitan Constitution (2014)).
Categories:
Constitutional Law
Sub-Categories:
Constitutional History
Type: Article
Frank I. Michelman, RSB, the Social Contract, and a Bridge Across the Gap: Delgado Talks to Rawls, 33 Law and Ineq. 417 (2015).
Categories:
Disciplinary Perspectives & Law
,
Criminal Law & Procedure
,
Legal Profession
Sub-Categories:
Critical Legal Studies
,
Legal Theory & Philosophy
,
Biography & Tribute
Type: Article
Abstract
Symposium: Examining Critical Race Theory: Honoring Professor Richard Delgado
Frank I. Michelman, The Compelling Idea of Social & Economic Rights: Reciprocating Perturbations in Liberal and Democratic Constitutional Visions, in Social and Economic Rights in Theory and Practice: Critical Inquiries (Helena Alviar García, Karl Klare & Lucy A. Williams eds., 2015).
Categories:
Constitutional Law
,
Discrimination & Civil Rights
,
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Poverty Law
,
Social Welfare Law
,
Law & Political Theory
,
Comparative Law
Type: Book
Frank I. Michelman, The Priority of Liberty: Rawls and "Tiers of Scrutiny", in Rawls's Political Liberalism 175 (Thom Brooks & Martha C. Nussbaum eds., Colum. Univ. Press 2015).
Categories:
Constitutional Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
Type: Book
Abstract
In the United States, exceptionally, an established judicial protocol for constitutional clearance of legislative incursions on freedom of action sets up a two-track scheme, prescribing a searching form of review for a subset of such incursions and a markedly more cursory review for the rest. The model further sets up a general standard of 'fundamentality' by which to sort such incursions into the two classes – as opposed, say, to a name-by-name specification of protected liberties drawn directly from the text of the bill of rights. Political Liberalism, I argue, should be at home with both these features of the U.S. jurisprudence. The role assigned by that jurisprudence to fifth and fourteenth amendment 'liberty' is matched by the role assigned to 'liberty of conscience' in Rawlsian political philosophy; while the second principle of justice (and not, as might appear, any Rawlsian philosophical denial of value to freedom of action 'as such') points toward a refusal of heightened-scrutiny protection for freedom of action across the board. In a Rawlsian well-ordered society, two-track scrutiny would be understandable as a device for holding the two principles of justice in equipoise.
Frank I. Michelman, Why Not Just Say No? An Essay on the Obduracy of Constitution Fixation, 94 B.U. L. Rev. 1141 (2014).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
,
Constitutional Law
Sub-Categories:
Constitutional History
,
Legal Theory & Philosophy
,
Politics & Political Theory
Type: Article
Abstract
The article focuses on political dysfunction in the U.S. and discusses U.S. constitutional law. Topics include constitutional interpretation and construction, legitimization by constitution, and the role of the U.S. Supreme Court in constitutional application. Information is provided on counterconstitutionalism, a term used by the author to discusses the rejection of constitutional rules.
Frank I. Michelman, Antipoverty in Constitutional Law: Some Recent Developments, 67 Ark. L. Rev. 213 (2014).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
,
Discrimination & Civil Rights
Sub-Categories:
Poverty Law
,
Comparative Law
Type: Article
Frank I. Michelman, Poverty in Liberalism: A Comment on the Constitutional Essentials, 60 Drake L. Rev. 1001 (2012).
Categories:
Constitutional Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Constitutional History
,
Law & Political Theory
Type: Article
Abstract
Does a political culture’s embrace of liberal constitutionalism – or does liberal political thought more generally – come laden with a deep-seated resistance to recognition of the injustice of structural poverty within a broadly affluent society, or to getting done politically whatever is required in order to abolish that injustice? For those inclined to say so, the philosophy of John Rawls might seem to pose a testing case. In our time, Rawls’s philosophical excavations of liberalism are the ones we might well regard as the most dedicatedly antipoverty of all, and so his works would seemingly be the last place to go hunting for evidence of an ineluctable resistance in liberalism to the subjugation of poverty by political means. If we find such evidence there, where in liberalism will we not? Rawls compiles a roster of “constitutional essentials,” meaning commitments that must be observable, in practice as well as in form, in the basic laws that constitute a country’s political and legal regime, in order to render that regime legitimate in the sense it can command morally the compliance of citizen with laws and policies that issue from it, regardless of disagreements about whether those laws and policies are truly compatible with the demands of justice. Now, Rawls decidedly and deliberately excludes from the constitutional essentials a guarantee to everyone of what he calls “fair” (as distinguished from merely “formal”) equality of opportunity – even though, in Rawls’s view, a regime that fails to satisfy fair equality of opportunity may for that very reason be gravely unjust. This paper asks whether the Rawlsian exclusion of fair equality of opportunity from the constitutional essentials should be taken as a sign, even within the thought of Rawls, of the incapacity of liberal constitutionalism, with its prioritized commitment to individual rights and liberties, to grasp and respond fully to the injustice of avoidable structural poverty. The paper answers “no.” It finds that constitutionalization of fair equality of opportunity remains an open and debatable question within liberalism as conceived by Rawls, and furthermore that Rawls’s own reasons for deciding against constitutionalization contain nothing to detract from his insistence that fair equality of opportunity is a strict requirement of justice. This paper was prepared for a symposium on “Constitutionalism and the Poor,” held at Drake Law School on April 14, 2012, under the sponsorship of the Drake Constitutional Law Center.
Frank I. Michelman, Our Liberalism, 89 Tex. L. Rev. 1409 (2011) (reviewing Seth Stern & Stephen Wermiel, Justice Brennan: Liberal Champion (2010)),
Categories:
Legal Profession
,
Government & Politics
Sub-Categories:
Judges & Jurisprudence
,
Politics & Political Theory
,
Legal Scholarship
Type: Article
Frank I. Michelman, Cutting the Gordian Knot of Legitimacy Theory? An Anatomy of Frank Michelman's Presentist Critique of Constitutional Authorship (Reply to Ming-Sung Kuo), 7 Int'l. J. Const. L 715 (2009).
Categories:
Constitutional Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Constitutional History
,
Legal Theory & Philosophy
Type: Article
Abstract
If members of a populace consciously share a description of an essential, durable feature of the constitution in force in their country (say, its provision for resolving disputes concerning the constitution's meaning and application), must they also share a view of that constitution as the prior utterance of authors whose word is deemed binding? Can a constitution's liberal legitimacy be grounded in the historical facts of its authorship, as opposed to present and personal assessments of that constitution's substantive rightness? If the answers to those questions are "no" and "no," are referrals to authorship to be excluded from any place in an account of the possibility of constitutional legitimacy on liberal terms? These questions arise in the wake of Ming-Sung Kuo's contention that certain writings of Frank Michelman attempt yet fail to show how confirmations of constitutional legitimacy can be "unhinged" from referrals to constitutional authorship. All three should be answered "no."

Langdell 334

617-495-4628

Assistant: Isaac Moore / 617-496-1760