Open Access. Powered by Scholars. Published by Universities.®

Political Science Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 30 of 31

Full-Text Articles in Political Science

Why Congress Does Not Challenge Judicial Supremacy, Neal Devins Apr 2017

Why Congress Does Not Challenge Judicial Supremacy, Neal Devins

William & Mary Law Review

Members of Congress largely acquiesce to judicial supremacy both on constitutional and statutory interpretation questions. Lawmakers, however, do not formally embrace judicial supremacy; they rarely think about the courts when enacting legislation. This Article explains why this is so, focusing on why lawmakers have both strong incentive to acquiesce to judicial power and little incentive to advance a coherent view of congressional power. In particular, lawmakers are interested in advancing favored policies, winning reelection, and gaining personal power within Congress. Abstract questions of institutional power do not interest lawmakers and judicial defeats are seen as opportunities to find some other ...


Judicial Supremacy Revisited: Independent Constitutional Authority In American Constitutional Law And Practice, Mark A. Graber Apr 2017

Judicial Supremacy Revisited: Independent Constitutional Authority In American Constitutional Law And Practice, Mark A. Graber

William & Mary Law Review

The Supreme Court exercises far less constitutional authority in American law and practice than one would gather from reading judicial opinions, presidential speeches, or the standard tomes for and against judicial supremacy. Lower federal court judges, state court justices, federal and state elected officials, persons charged with administering the law, and ordinary citizens often have the final say on particular constitutional controversies or exercise temporary constitutional authority in ways that have more influence on the parties to that controversy than the eventual Supreme Court decision. In many instances, Supreme Court doctrine sanctions or facilitates the exercise of independent constitutional authority ...


Determining Extraterritoriality, Franklin A. Gevurtz Nov 2014

Determining Extraterritoriality, Franklin A. Gevurtz

William & Mary Law Review

This Article addresses an underexplored but critical aspect of the presumption against extraterritoriality. The presumption against extraterritoriality—which the United States Supreme Court has increasingly invoked in recent years—calls for courts to presume that Congress does not intend U.S. statutes to govern events outside the United States. The most difficult issue presented by the presumption arises when relevant events occur both inside and outside the United States, as in the classic example, if a shooter on one side of the border kills a victim on the other, or if, as in the leading case, false statements originating inside ...


Congress's Treaty-Implementing Power In Historical Practice, Jean Galbraith Oct 2014

Congress's Treaty-Implementing Power In Historical Practice, Jean Galbraith

William & Mary Law Review

Historical practice strongly influences constitutional interpretation in foreign relations law, including most questions relating to the treaty power. Yet it is strikingly absent from the present debate over whether Congress can pass legislation implementing U.S. treaties under the Necessary and Proper Clause. Drawing on previously unexplored sources, this Article considers the historical roots of Congress’s power to implement U.S. treaties between the Founding Era and the seminal case of Missouri v. Holland in 1920. It shows that time after time, members of Congress understood the Necessary and Proper Clause to provide a constitutional basis for a congressional ...


The Partisanship Spectrum, Justin Levitt May 2014

The Partisanship Spectrum, Justin Levitt

William & Mary Law Review

In a polarized political environment, allegations of excessive partisanship by public actors are ubiquitous. Commentators, courts, and activists levy these allegations daily. But with remarkable consistency, they do so as if “partisanship” described a single phenomenon. This Article recognizes that the default mode of understanding partisanship is a descriptive and diagnostic failure with meaningful consequences. We mean different things when we discuss partisanship, but we do not have the vocabulary to understand that we are talking past each other.

Without a robust conceptualization of partisanship, it is difficult to treat pathologies of partisan governance. Indeed, an undifferentiated approach to partisanship ...


The Jury And Participatory Democracy, Alexandra D. Lahav Mar 2014

The Jury And Participatory Democracy, Alexandra D. Lahav

William & Mary Law Review

No abstract provided.


Charities In Politics: A Reappraisal, Brian Galle Apr 2013

Charities In Politics: A Reappraisal, Brian Galle

William & Mary Law Review

Federal law significantly limits the political activities of charities, but no one really knows why. In the wake of Citizens United, the absence of any strong normative grounding for the limits may leave the rules vulnerable to constitutional challenge. This Article steps into that breach, offering a set of policy reasons to separate politics from charity. I also sketch ways in which my more precise exposition of the rationale for the limits helps guide interpretation of the complex legal rules implementing them.

Any defense of the political limits begins with significant challenges because of a long tradition of scholarly criticism ...


The Structural Constitutional Principle Of Republican Legitimacy, Mark D. Rosen Dec 2012

The Structural Constitutional Principle Of Republican Legitimacy, Mark D. Rosen

William & Mary Law Review

Democracy does not spontaneously occur by citizens gathering to choose laws. Instead, representative democracy takes place within an extensive legal framework that determines such matters as who gets to vote, how campaigns are conducted, and what conditions must be met for representatives to make valid law. Many of the “rules of the road” that operationalize republicanism have been subject to constitutional challenges in recent decades. For example, lawsuits have been brought against partisan gerrymandering—which is partly responsible for the fact that most congressional districts are no longer party competitive, but instead are either safely Republican or safely Democratic—and ...


Preserving Republican Governance: An Essential Government Functions Exception To Direct Democratic Measures, William R. Leinen Dec 2010

Preserving Republican Governance: An Essential Government Functions Exception To Direct Democratic Measures, William R. Leinen

William & Mary Law Review

No abstract provided.


Can Public Debt Enhance Democracy?, Clayton P. Gillette Dec 2008

Can Public Debt Enhance Democracy?, Clayton P. Gillette

William & Mary Law Review

This Essay draws on historical and current examples to examine the extent to which public creditors can enhance democracy by monitoring public officials in a manner that compensates for the failures of the government debtor's constituents to monitor public officials. Creditors and constituents may share significant interests, depending on the structure of security arrangements for public debt and the identity of the debtors. Where interests overlap, the capacity of creditors to overcome collective action problems suffered by constituents may transform creditors into surrogates for constituents. Whether creditors are willing to play this role, however, may depend on the existence ...


Collateral Damage: The Endangered Center In American Politics, Samuel Issacharoff Nov 2004

Collateral Damage: The Endangered Center In American Politics, Samuel Issacharoff

William & Mary Law Review

No abstract provided.


Statehood As The New Personhood: The Discovery Of Fundamental "States' Rights", Timothy Zick Oct 2004

Statehood As The New Personhood: The Discovery Of Fundamental "States' Rights", Timothy Zick

William & Mary Law Review

No abstract provided.


The Radical Possibility Of Limited Community-Based Interpretation Of The Constitution, Mark D. Rosen Feb 2002

The Radical Possibility Of Limited Community-Based Interpretation Of The Constitution, Mark D. Rosen

William & Mary Law Review

No abstract provided.


Federalism And Foreign Affairs: Congress's Power To "Define And Punish...Offenses Against The Law Of Nations", Beth Stephens Oct 2000

Federalism And Foreign Affairs: Congress's Power To "Define And Punish...Offenses Against The Law Of Nations", Beth Stephens

William & Mary Law Review

No abstract provided.


Autonomy And Agency, Thomas E. Hill Jr. Mar 1999

Autonomy And Agency, Thomas E. Hill Jr.

William & Mary Law Review

No abstract provided.


Introduction: Reconstructing Liberalism, Cynthia V. Ward Mar 1999

Introduction: Reconstructing Liberalism, Cynthia V. Ward

William & Mary Law Review

No abstract provided.


Reconstructive Tasks For A Liberal Feminist Conception Of Privacy, Linda C. Mcclain Mar 1999

Reconstructive Tasks For A Liberal Feminist Conception Of Privacy, Linda C. Mcclain

William & Mary Law Review

No abstract provided.


Oppression, Lies, And The Dream Of Autonomy, Judy Scales-Trent Mar 1999

Oppression, Lies, And The Dream Of Autonomy, Judy Scales-Trent

William & Mary Law Review

No abstract provided.


Expressive Liberty, Moral Pluralism, Political Pluralism: Three Sources Of Liberal Theory, William A. Galston Mar 1999

Expressive Liberty, Moral Pluralism, Political Pluralism: Three Sources Of Liberal Theory, William A. Galston

William & Mary Law Review

No abstract provided.


Reconstructing Galston's Conception Of State Neutrality, George W. Harris Mar 1999

Reconstructing Galston's Conception Of State Neutrality, George W. Harris

William & Mary Law Review

No abstract provided.


Moral Reasons And The Limitation Of Liberty, Jeffrie G. Murphy Mar 1999

Moral Reasons And The Limitation Of Liberty, Jeffrie G. Murphy

William & Mary Law Review

No abstract provided.


Coercing Privacy, Anita L. Allen Mar 1999

Coercing Privacy, Anita L. Allen

William & Mary Law Review

No abstract provided.


From Autonomy To Agency: Feminist Perspectives On Self-Direction, Kathryn Abrams Mar 1999

From Autonomy To Agency: Feminist Perspectives On Self-Direction, Kathryn Abrams

William & Mary Law Review

No abstract provided.


Crimes Against Autonomy: Gerald Dworkin On The Enforcement Of Morality, Lawrence C. Becker Mar 1999

Crimes Against Autonomy: Gerald Dworkin On The Enforcement Of Morality, Lawrence C. Becker

William & Mary Law Review

No abstract provided.


A Would-Be Tiger: Assessing Vietnam's Prospects For Gaining Most Favored Nation Status From The United States, Ky Tran-Trong May 1997

A Would-Be Tiger: Assessing Vietnam's Prospects For Gaining Most Favored Nation Status From The United States, Ky Tran-Trong

William & Mary Law Review

No abstract provided.


Elements Of Liberal Equality: Introduction To Kirp, Hochschild, And Strauss, Lawrence C. Becker Oct 1992

Elements Of Liberal Equality: Introduction To Kirp, Hochschild, And Strauss, Lawrence C. Becker

William & Mary Law Review

No abstract provided.


The Left, The Right, And Certainty In Constitutional Law, Gene R. Nichol May 1992

The Left, The Right, And Certainty In Constitutional Law, Gene R. Nichol

William & Mary Law Review

No abstract provided.


Book Review Of Legislative Journals Of The Council Of Colonial Virginia And Minutes Of The Council And General Court Of Colonial Virginia, William F. Swindler Dec 1980

Book Review Of Legislative Journals Of The Council Of Colonial Virginia And Minutes Of The Council And General Court Of Colonial Virginia, William F. Swindler

William & Mary Law Review

No abstract provided.


Book Review Of Representation, Charles E. Bednar May 1969

Book Review Of Representation, Charles E. Bednar

William & Mary Law Review

No abstract provided.


Aftermath Of Baker V. Carr, T. Rodman Layman Apr 1963

Aftermath Of Baker V. Carr, T. Rodman Layman

William & Mary Law Review

No abstract provided.