Faculty Bibliography
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As Katharine Bartlett has written, being a legal feminist entails “asking the ‘woman question’” in law. This essay asks the “woman question” about constitutions and constitutional law, largely with the purpose of generating areas for future research. I focus neither on particular subject areas nor on doctrinal issues, but rather on three areas of constitutional theory: the idea of constitutions as entrenched law under difficult-to-amend provisions, the allocation of jurisdiction in and among different levels and branches of government, and the idea of interpretive theory in constitutional law. First, I want to acknowledge the wide range of subjects in and around constitutions that are amenable to analysis through the lens of gender. Women in many parts of the world now participate in constitution making – the title of a recent collection of essays, Women Making Constitutions, would have been almost inconceivable a century ago. As Vivien Hart notes, greater emphasis on participation in constitution making has in many countries offered opportunities for women to place their mark on and in constitutions. Many questions are embraced in this topic: How have women organized to participate? What have women sought to include in their constitutions? What have women disagreed about? What are the relationships among women's participation in constitution making, the constitutional texts that emerge, and the changed conditions for women in the years thereafter? How much do women participate as office holders, judges, and in other government positions under these constitutions?
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Susan Bloch, Vicki C. Jackson & Thomas Krattenmaker, Inside the Supreme Court: The Institution and Its Procedures (2nd ed. 2008).
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This title carefully analyzes the Supreme Court from the nomination process to proposals for reform. The authors have designed this text to be used in two ways. First, it can be used as the "main text" in a seminar on the Supreme Court. Second, it can be used as supplemental reading for any course in constitutional law, American history, American government or other similar courses in law, history or government that touch on the role of the Court. The accompanying instructor's manual will show how it can be used effectively for your course. In writing this book, the authors’ goal has been to bring together selections from the best research published by legal academics and political scientists, along with thoughtful commentary by experienced Supreme Court practitioners and some primary materials, from congressional hearings and Court decisions, to show how the Supreme Court works as an institution.
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Vicki C. Jackson, Multi-Valenced Constitutional Interpretation and Constitutional Comparisons: An Essay in Honor of Mark Tushnet, 26 Quinnipiac L. Rev. 599 (2008).
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Symposium - The Sixth Conference on Law and Philosophy: The Work of Mark Tushnet.
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The Warren Court is often portrayed as hostile to constitutional federalism. But this critique misses the degree to which the Warren Court's jurisprudence was reparative of the legitimacy of state governments, while at the same time it advanced a new form of post-World War II constitutional federalism. The Warren Court's decisions, especially on apportionment, in important respects strengthened the legitimacy of state governments. It is even arguable that the Court's decisions, by providing the impetus for a more democratically legitimate form of state government, helped contribute to a revival of states as a locus of reform, contributing to the more aggressive judicially enforced federalism limits on national power in the late 20th century. The post World War II model of constitutional federalism, which reaction to the human rights abuses of World War II helped legitimate, guarantees a set of basic individual rights against all levels of government. It is a model that the political branches of the United States government supported in the postwar reconstruction of Germany. In raising the floor of basic constitutional norms designed to protect individuals from unfair treatment by any government, state or federal, the Warren Court both anticipated and reflected a burgeoning recognition of worldwide standards of human rights and human dignity, in international documents and in the new constitutions adopted in other federal systems such as Germany, India, and, later on, Canada. The Court's insight that, in a post-Hitler world, all governments must be held to high standards of protection for the rights of the individual and that such standards were not incompatible with vigorous states in a federal union, was consistent with burgeoning models of post-war constitutional federalism.
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Part I below explores the interpretive approaches of three other high national courts that have engaged in constitutional review over a long period of time, identifying two respects in which they may bear on this debate. First, their jurisprudence relies on interpretive approaches that depend on multiple sources and forms of argument-what some call an "eclectic" method, and others might call common law constitutionalism. Second, the jurisprudence of other significant national courts acknowledges the possibility that interpretive understandings will change. Indeed, in those countries with continuity of rights-protecting constitutional regimes and with high courts vested with the power of judicial review, it is a hallmark that constitutions be construed in a certain sense as "living," with prior interpretations open to modification in light of new developments and changed understandings. This may be a consequence of the debilitation of rationales for intentionalism beyond original generations, and of changes in legal consciousness that undermine the plausibility of more formalist methods. The ubiquity of interpretive change and of multi-sourced methods of interpretation raises questions about claims that democratic legitimacy or appropriate levels of judicial restraint depend on formalist, intentionalist modes of interpretation and exclusive reliance on constitutional amendment for change. Part II explores the metaphors through which we think about the "living" and "original" Constitution. The U.S. metaphor - a "living constitution"- does not necessarily capture the actual methodologies of our own constitutional interpretation, which remain grounded in constitutional text and whose sources include original understandings as well as later history and precedent. In Canada, a widely used metaphor is of their constitution as a "living tree." The idea of a "living tree" may better embrace the multiple modalities - text, original intentions, structure and purpose, precedent and doctrine, values and ethos, prudential or consequentialist concerns - of contemporary constitutional interpretation. It suggests that constitutional interpretation is constrained by the past, but not entirely. Unlike the less tethered "living constitution," it captures the idea of constraint, the role of text and original understanding in the roots of the constitutional tree and the role of precedent and new developments in its growth. Yet all metaphors mislead; they can obscure as much as they illuminate; and the tree metaphor understates the effects of major constitutional change and the role of human agency in that process. Nonetheless, moving the metaphor to the Constitution as a "living tree" may emphasize commonalities in interpretive approaches and thus support the idea of legitimate constitutional disagreement as an ordinary part of adjudication, not a symptom of "lawless" judges engaged in “naked political judgment”.
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Defining the Field of Comparatative Constitutional Law (Vicki C. Jackson & Mark Tushnet eds., Praeger 2002).
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Jackson, Tushnet, and their contributors, distinguished jurists and legal scholars from around the world, seek to define the field of constitutional law, sometimes expressly but more often by illustrating the way in which each writer thinks about comparative constitutional law. Viewed as a whole, the collection points to common constitutional themes even though how nations responded to these issues differed substantially based on different histories, traditions, and experiences. Three common themes emerge from the essays. First discussed are the relationships of constitutionalism and constitutional law to popular understandings and political contexts and their relationship to constitutional understandings and transformations. A second set of concerns revolve around dilemmas of equality. Third, explicit or implicit in virtually all of the essays is the theme that globalization as a phenomenon requires comparative constitutional study. Here is a thoughtful and stimulating collection that will be of value to legal scholars, students, and others involved with constitutional law issues.
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The Supreme Court's revival of federalism as a limit on national power has roots, in part, in the Court's mistrust of the national legislative process and its sense of institutional competition with Congress. To the extent that the Court is concerned about careless legislating, six rules of "care and craft" in drafting legislation are proposed for members of Congress to consider: develop a factual record, reflect the source of constitutional authority, tailor the statute to reach "national" and not "local" matters, consider the implications of decentralized enforcement for surviving constitutional challenges as well as for efficacy, consider whether state governments are treated comparably to the federal government, and be particularly cautious in efforts to overrule the effects of the Court's decisions. To the extent the Court is concerned with its own institutional prerogatives, however, or is committed to a categorical divide between areas constitutionally committed to the states and the federal government, care and craft alone will not be a solution.
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Introducing a Symposium of articles exploring the constitutionality of recently-enacted jurisdictional laws affecting prisoners and aliens, this essay argues that the recent legislation reveals three complex and contradictory relationships between Congress and the federal courts over their jurisdiction: (1) a dynamic of confrontation, in which Congress seeks to curtail "activist" federal judges, (2) a dynamic of agreement, in which Congress and the federal judiciary as a whole seek to curtail access to federal courts for these claimants, and (3) a dynamic expressing judicial hierarchy, in which both the Supreme Court and Congress seek to reinforce the "supersupremacy" of the Supreme Court vis-a-vis the inferior federal courts. In connection with this third dynamic, the essay suggests that 28 U.S.C. section 2254 (d)(1), which appears to limit the sources of controlling federal law on state habeas corpus to decisions of the Supreme Court (and, by implication, excludes decisions of the inferior federal courts) violates Article III principles requiring that decisions of all courts exercising the "judicial power" of the United States be constrained by the prospect of those decisions functioning as precedent. After reviewing the excellent contributions of Professors David Cole, John Harrison, Daniel J. Meltzer, Judith Resnik and Lawrence G. Sager, the essay goes on to suggest that jurisdictional rules affecting aliens have foreseeable effects on foreign relations (see Breard) that require attention, beyond the concerns for caseload reduction and expeditious judgment that informed much recent legislative change. Concluding that the dynamics of confrontation, agreement and hierarchy are likely to endure, the essay joins with Professor Resnik in calling for more attention to nonadjudicatory judicial statements (e.g., the Long Range Plan of the Federal Courts) about the nature of federal jurisdiction.
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In Printz v. United States, a narrow majority of the Supreme Court continued the revival of constitutional federalism as a constraint on national power begun in New York v. United States. Professor Jackson concludes that Printz's categorical rule prohibiting federal directives to state employees is not well supported by historical or functional considerations but argues that courts should enforce milder federalism-based limits on national legislation. Judicial enforcement serves rule of law purposes, insisting that Congress recognize that it is constrained by law, and reinforces the constitutional role of the states. Although values such as liberty, participation, competition, and choice can be promoted at different times by different levels of government, securing the constitutional position of states helps preserve their governments as alternative locations of power and politics in which members of different groups can participate, crossing over otherwise important cleavages. The Article argues that judicial enforcement of two kinds of requirements is appropriate: first, with respect to federal regulation of private activity as in Lopez v. United States, that there be a considered connection, consistent with the Necessary and Proper Clause, between the legislation and an enumerated power; second, that the federal government not interfere with the states' constitutionally required legislative, executive, and judicial functions, an understanding that supports a strong presumption against legislative commandeering, and calls for a more nuanced approach to executive commandeering than in Printz. Finally, the Article argues that stability in sustaining a sufficiently principled law of federalism-based limits on national power can be better achieved with more flexible (rather than categorical) standards, given the dynamic and pragmatic character of successful federalism.
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In its 1996 decision, Seminole Tribe v. Florida, the Supreme Court, reversing itself, held that Congress lacks Article I power to abrogate states' Eleventh Amendment immunity from suit in federal court. In exploring the decision's ramifications, Professor Jackson contends that it may foreshadow more pervasive, and more troubling, shifts in the balance of power between state and federal governments, and among the federal, judicial, legislative, and executive branches. In particular, the Court's dubious reasoning in Seminole Tribe may have severe repercussions on the federal courts' ability to enjoin state officials from violating federal Iaw in the future. The availability of such equitable relief, under the so-called Ex parte Young doctrine, has long been accepted as a necessary counterbalance to the states' Eleventh Amendment immunity from federal jurisdiction. While the new restrictions on Congress's power would seem to make the availability of such relief more important than before, Professor Jackson examines how the Court's unfortunate analysis in Seminole Tribe may presage a substantial limitation of the Ex parte Young doctrine in the federal courts. Professor Jackson concludes by articulating the dangers that such a course might pose to federal courts' role in maintaining the rule of law and the supremacy of federal law.
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During its 1988 term, the U.S. Supreme Court addressed two important aspects of the Eleventh Amendment, which generally protects states from being sued in federal courts. First, the Court held that the Congress has power to abrogate states' immunity from suit—to subject states to suits in federal courts for damages—under Congress' expansive commerce-clause power. Second, the Court made clear that such abrogation would be found only where the text of the statute itself, as distinct from its legislative history, clearly and specifically so provided. This article describes these decisions, and analyzes some of their implications for judicial federalism.