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et revelabitur quasi aqua iudicium et iustitia quasi torrens fortis

 

Article 102 Colum. L. Rev. 237 (2002)

More Supreme than Court?: The Fall of the Political Question Doctrine and the Rise of Judicial Supremacy

Rachel E. Barkow


This Article traces the rise and the fall of the political question doctrine and explores the relationship of the doctrine to the Supreme Courts contemporaneous view of its institutional competency and the proper scope of judicial review. The Article provides this account for both the classical political question doctrine, which is rooted in the text and structure of the Constitution, and the prudential political question doctrine, which is a judicially created method of avoiding certain constitutional questions. The Article chronicles the Supreme Courts disregard in recent years for both versions of the doctrine, including an extensive analysis of the applicability of the political question doctrine to the Article II question in the 2000 presidential election cases. The Courts failure even to consider the doctrine in those cases reflects the doctrines demise. The Article argues that the fall of the political question doctrine is part of a larger trend in which the Supreme Court has embraced the view that it alone among the three branches of government has the power and competency to provide the full substantive meaning of all constitutional provisions. The Article concludes that the demise of the political question doctrine is troubling because the doctrine forces the Court to confront the institutional strengths of the political branchesand the Courts weaknessesin resolving some constitutional questions.

101 Colum. L. Rev. 1 (2001).

Textualism and the Equity of the Statute

John F. Manning


Recent scholarship has sought to challenge textualist interpretive methods by reviving the ancient English doctrine of the equity of the statutea doctrine that treated atextual, purposive interpretation as an inherent attribute of judicial authority. In particular, modern proponents contend that this common law doctrine, rather than the currently prevailing faithful agent theory, more accurately reflects the original understanding of "the judicial Power of the United States." In this Article, Professor Manning argues that the English equity of the statute doctrine failed to survive the structural innovations that differentiated the U.S. Constitution from its English common law ancestry. He further contends that while early American history is somewhat mixed, the faithful agent theory came to be the dominant federal interpretive theory quite early in the republic. Finally, Professor Manning argues that, contrary to the critics of textualism, current rejection of the equity of the statute will not lead to rigid and literal interpretive methods.

ARTICLE 102 Colum. L. Rev. 1 (2002)

The Thirteenth Amendment Versus the Commerce Clause: Labor and the Shaping of American Constitutional Law, 1921-1957

James Gray Pope


During the twentieth century, Congresss power to regulate commerce grew sensationally while its human rights powers atrophied. The author traces this phenomenon back to the choice, made by lawyers and politicians in the early 1930s, to base labor rights statutes like the Wagner Act on the Commerce Clause instead of the Thirteenth Amendment. Unions and workers argued that the rights to organize and strike made the difference between freedom and involuntary servitude. But a bevy of progressive lawyers who styled themselves friends of labor undermined labors Thirteenth Amendment theory. The author argues that this clash reflected not merely tactical differences among allies, but fundamentally conflicting constitutional goals. He contends that the Supreme Court upheld the Wagner Act not because of the lawyers Commerce Clause arguments, but because workers staged a series of sit-down strikes that confronted the swing justices with a choice between industrial peace or war. Afterward, unions and workers interpreted the Wagner Act decisions as victories for labor freedom, but the Acts Commerce Clause foundation pointed in a different directionone leading to fateful distortions in the jurisprudence of congressional powers.