Taking text and structure seriously: reflections on free-form method in constitutional interpretation

Article Abstract:

The analysis of the treaty-making power by Bruce Ackerman and David Golove illustrates the problems with Ackerman's theory of higher lawmaking. Ackerman and Golove argue that development of the congressional-executive agreement has made the Constitution's Treaty Clause optional. However, their free-form approach to constitutional interpretation is flawed. A more rigorous analysis of the text and structure of the Constitution supports the exclusivity of the Treaty Clause. Considerations of efficacy, democracy or legitimacy adduced by Ackerman and Golove do not pertain to the issue of constitutionality.

Treaty-making power, Ackerman, Bruce

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eroG .v hsuB and its disguises: freeing Bush v. Gore from its hall of mirrors

Article Abstract:

The author examines the resulting legal challenges from the disputed 2000 presidential election leading up to the Supreme Court's decision in Bush v. Gore, argues the court interrupted the constitutional process in its belief that it is the supreme interpreter of the Constitution, and proposes a reinvigoration of democracy through correcting the court's vision of the Constitution.

Standards, Evaluation, Equality before the law, Equal protection, Due process of law, United States. Supreme Court, Election law, Political questions and judicial power

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Saenz san prophecy: does the privileges or immunities revival portend the future - or reveal the structure of the present?

Article Abstract:

The Supreme Court's revival of the 14th Amendment's privileges or immunity clause in Saenz v. Roe is discussed. Issues include the decision's failure to invoke the Equal Protection Clause, on which the Court relied in earlier state sovereignty cases, and the unlikelihood that Saenz marks a turning point in constitutional doctrine.

Cases, Federalism, State government, Sovereignty, Privileges and immunities

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