Political process theory is a theory of judicial interpretation championed by American legal scholar John Hart Ely, which argues that judges should focus on maintaining a well-functioning democratic process and guard against systematic biases in the legislative process. [1]
Political process theory advocates believe that the best approach of constitutional interpretation is one of representation reinforcement, i.e. improving the democratic process. Proponents believe that judges who reinforce representation play the best normative role. [2] 101-04 [3] The argument also states that the judicial approach is implicit in the Framers' design. [2] 88-101 [3]
Ely praised the process theory principle, which was thought to have been first expounded in footnote four of the United States Supreme Court case Carolene Products [2] [4] [5] that affirmed the constitutionality of a regulation on filled-milk product. Justice Harlan Stone, in addition, described circumstances where the ordinary presumption of a law's constitutionality may not apply and heightened judicial scrutiny may be triggered, including if a law:
Troubled by the counter-majoritarian difficulty of judges overruling democratic majorities, Ely prefers that judges not needlessly intervene in controversial normative debates. He instead proposes the principle of representation reinforcement, a neutral principle to have judges more aggressively guard the democratic process. On the issue of political processes, Justice Stone cited cases involving restrictions on the right to vote, restraints upon the dissemination of information, interferences with political organizations, and prohibition of peaceable assembly. [6] Ely further argues that the Warren court's jurisprudence and its defense of individual rights generally implicitly conformed to the principle set out in footnote four. [1]
Ely's book Democracy and Distrust (1980) was widely regarded as the most important academic work for two generations on American constitutional law, and was the most cited piece legal scholarship from 1978 to 2000. [7] [8] It has also been defended by legal scholar Michael Klarman. [1]
Philosophy of law is a branch of philosophy that examines the nature of law and law's relationship to other systems of norms, especially ethics and political philosophy. It asks questions like "What is law?", "What are the criteria for legal validity?", and "What is the relationship between law and morality?" Philosophy of law and jurisprudence are often used interchangeably, though jurisprudence sometimes encompasses forms of reasoning that fit into economics or sociology.
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Ronald Myles Dworkin was an American legal philosopher, jurist, and scholar of United States constitutional law. At the time of his death, he was Frank Henry Sommer Professor of Law and Philosophy at New York University and Professor of Jurisprudence at University College London. Dworkin had taught previously at Yale Law School and the University of Oxford, where he was the Professor of Jurisprudence, successor to philosopher H. L. A. Hart.
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Substantive due process is a principle in United States constitutional law that allows courts to establish and protect certain fundamental rights from government interference, even if they are unenumerated elsewhere in the U.S. Constitution. Courts have asserted that such protections come from the due process clauses of the Fifth and Fourteenth amendments to the U.S. Constitution, which prohibit the federal and state governments, respectively, from depriving any person of "life, liberty, or property, without due process of law". Substantive due process demarks the line between those acts that courts hold to be subject to government regulation or legislation and those that courts place beyond the reach of governmental interference. Whether the Fifth or Fourteenth Amendments were intended to serve that function continues to be a matter of scholarly as well as judicial discussion and dissent. In recent opinions, Justice Clarence Thomas has called on the Supreme Court to reconsider all of its rulings that were based on substantive due process.
A Due Process Clause is found in both the Fifth and Fourteenth Amendments to the United States Constitution, which prohibit the deprivation of "life, liberty, or property" by the federal and state governments, respectively, without due process of law.
John Hart Ely was an American legal scholar. He was a professor of law at Yale Law School from 1968 to 1973, Harvard Law School from 1973 to 1982, Stanford Law School from 1982 to 1996, and at the University of Miami Law School from 1996 until his death. From 1982 until 1987, he was the 9th dean of Stanford Law School.
In U.S. constitutional law, when a law infringes upon a fundamental constitutional right, the court may apply the strict scrutiny standard. Strict scrutiny holds the challenged law as presumptively invalid unless the government can demonstrate that the law or regulation is necessary to achieve a "compelling state interest". The government must also demonstrate that the law is "narrowly tailored" to achieve that compelling purpose, and that it uses the "least restrictive means" to achieve that purpose. Failure to meet this standard will result in striking the law as unconstitutional.
United States v. Carolene Products Company, 304 U.S. 144 (1938), was a case of the United States Supreme Court that upheld the federal government's power to prohibit filled milk from being shipped in interstate commerce. In his majority opinion for the Court, Associate Justice Harlan F. Stone wrote that economic regulations were "presumptively constitutional" under a deferential standard of review known as the "rational basis test".
The Warren Court was the period in the history of the Supreme Court of the United States from 1953 to 1969 when Earl Warren served as the chief justice. The Warren Court is often considered the most liberal court in U.S. history.
Jeremy Waldron is a New Zealander legal philosopher. He holds a University Professorship at the New York University School of Law, is affiliated with the New York University Department of Philosophy, and was formerly the Chichele Professor of Social and Political Theory at All Souls College, Oxford University. Waldron also holds an adjunct professorship at Victoria University of Wellington. Waldron is regarded as one of the world's leading legal and political philosophers.
The Living Constitution, or judicial pragmatism, is the viewpoint that the U.S. constitution holds a dynamic meaning even if the document is not formally amended. The Constitution is said to develop alongside society's needs and provide a more malleable tool for governments. The idea is associated with views that contemporary society should be considered in the constitutional interpretation of phrases. The Constitution is referred to as the living law of the land as it is transformed according to necessities of the time and the situation. Some supporters of the living method of interpretation, such as professors Michael Kammen and Bruce Ackerman, refer to themselves as organists.
In U.S. constitutional law, rational basis review is the normal standard of review that courts apply when considering constitutional questions, including due process or equal protection questions under the Fifth Amendment or Fourteenth Amendment. Courts applying rational basis review seek to determine whether a law is "rationally related" to a "legitimate" government interest, whether real or hypothetical. The higher levels of scrutiny are intermediate scrutiny and strict scrutiny. Heightened scrutiny is applied where a suspect or quasi-suspect classification is involved, or a fundamental right is implicated. In U.S. Supreme Court jurisprudence, the nature of the interest at issue determines the level of scrutiny applied by appellate courts. When courts engage in rational basis review, only the most egregious enactments, those not rationally related to a legitimate government interest, are overturned.
Constitutional theory is an area of constitutional law that focuses on the underpinnings of constitutional government. It overlaps with legal theory, constitutionalism, philosophy of law and democratic theory. It is not limited by country or jurisdiction.
Michael J. Klarman is an American legal historian and scholar of constitutional law. Currently, Klarman is the Kirkland & Ellis Professor at Harvard Law School. Formerly, he was James Monroe Distinguished Professor of Law, Professor of History, and Elizabeth D. and Richard A. Merrill Research Professor at the University of Virginia School of Law.
The legal process school was a movement within American law that attempted to chart a third way between legal formalism and legal realism. Drawing its name from Hart & Sacks' textbook The Legal Process, it is associated with scholars such as Herbert Wechsler, Henry Hart, Albert Sacks and Lon Fuller, and their students such as John Hart Ely and Alexander Bickel. The school grew in the 1950s and 1960s. To this day, the school's influence remains broad.
Louis Lusky was an American legal scholar. Considered a pioneer in the field of civil rights law, he was the Betts Professor of Law at Columbia Law School, where he taught from 1963 to 1986.
Judicial review is a process under which a government's executive, legislative, or administrative actions are subject to review by the judiciary. In a judicial review, a court may invalidate laws, acts, or governmental actions that are incompatible with a higher authority. For example, an executive decision may be invalidated for being unlawful, or a statute may be invalidated for violating the terms of a constitution. Judicial review is one of the checks and balances in the separation of powers—the power of the judiciary to supervise the legislative and executive branches when the latter exceed their authority. The doctrine varies between jurisdictions, so the procedure and scope of judicial review may differ between and within countries.
Ordered liberty is a concept in political philosophy, where individual freedom is balanced with the necessity for maintaining social order. In "Ordered Liberty," Randy E. Barnett examines the concept of ordered liberty and its relationship to the U.S. Constitution. He argues that the Constitution was designed to protect individual liberty within a framework of ordered liberty, which balances the need for social order with the importance of individual freedom.
