Abstract Legitimacy is a term much invoked but little analyzed in constitutional debates. Uncertainty and confusion frequently result. This Article fills a gap in the literature by analyzing the idea of constitutional legitimacy. It argues that the term invites appeal to three distinct kinds of criteria that in turn support three distinct but partly overlapping concepts of legitimacy - legal, sociological, and moral. When we examine legitimacy debates with these three concepts in mind, striking conclusions emerge. First, the legal legitimacy of the Constitution depends more on its present sociological acceptance than on the (questionable) legality of its formal ratification. Second, although the Constitution deserves to be recognized as morally legitimate, it is only "minimally" rather than "ideally" so: it is not morally perfect, nor has it ever enjoyed unanimous consent. Third, because the Constitution invites disagreement about what it means and how it should be interpreted, many claims about the legal legitimacy of practices under the Constitution rest on inherently uncertain foundations. Significantly, however, a virtual consensus exists that at least some judicial precedents suffice to support future claims of legitimate judicial authority, even when those precedents were themselves erroneously decided in the first instance. Like the legal legitimacy of the Constitution, the legal legitimacy of precedent-based decisionmaking arises from sociological acceptance. Fourth, in the absence of greater legal and sociological consensus, judgments about many purportedly legal questions, including questions of judicial legitimacy, frequently reflect assumptions about the moral legitimacy of official action. Realistic discourse about constitutional legitimacy must therefore reckon with the snarled interconnections among constitutional law, its sociological foundations, and the felt imperatives of practical exigency and moral right. Show
Journal Information The Harvard Law Review publishes articles by professors, judges, and practitioners and solicits reviews of important recent books from recognized experts. Each issue also contains pieces by student editors. Published monthly from November through June, the Review has roughly 2,000 pages per volume. All articles--even those by the most respected authorities--are subjected to a rigorous editorial process designed to sharpen and strengthen substance and tone. The November issue contains the Supreme Court Foreword (usually by a prominent constitutional scholar), the faculty Case Comment, twenty-five Case Notes (analyses by third-year students of the most important decisions of the previous Supreme Court Term), and a compilation of Court statistics. The February issue features the annual Developments in the Law project, an in-depth treatment of an important area of the law. Publisher Information Founded in 1887 by future Supreme Court Justice Louis D. Brandeis, the Harvard Law Review is an entirely student-edited journal that is formally independent of the Harvard Law School. Approximately ninety student editors make all editorial and organizational decisions and, together with a professional business staff of four, carry out day-to-day operations. Aside from serving as an important academic forum for legal scholarship, the Review is designed to be an effective research tool for practicing lawyers and students of the law. The Review also provides opportunities for its members to develop their own editing and writing skills. All student writing is unsigned, reflecting the fact that many members of the Review, in addition to the author and supervising editor, make a contribution to each published piece. Rights & Usage This item is part of a JSTOR Collection. Abstract 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. Journal Information The Harvard Law Review publishes articles by professors, judges, and practitioners and solicits reviews of important recent books from recognized experts. Each issue also contains pieces by student editors. Published monthly from November through June, the Review has roughly 2,000 pages per volume. All articles--even those by the most respected authorities--are subjected to a rigorous editorial process designed to sharpen and strengthen substance and tone. The November issue contains the Supreme Court Foreword (usually by a prominent constitutional scholar), the faculty Case Comment, twenty-five Case Notes (analyses by third-year students of the most important decisions of the previous Supreme Court Term), and a compilation of Court statistics. The February issue features the annual Developments in the Law project, an in-depth treatment of an important area of the law. Publisher Information Founded in 1887 by future Supreme Court Justice Louis D. Brandeis, the Harvard Law Review is an entirely student-edited journal that is formally independent of the Harvard Law School. Approximately ninety student editors make all editorial and organizational decisions and, together with a professional business staff of four, carry out day-to-day operations. Aside from serving as an important academic forum for legal scholarship, the Review is designed to be an effective research tool for practicing lawyers and students of the law. The Review also provides opportunities for its members to develop their own editing and writing skills. All student writing is unsigned, reflecting the fact that many members of the Review, in addition to the author and supervising editor, make a contribution to each published piece. Rights & Usage This item is part of a JSTOR Collection. What was the decision in United States v Lopez reflect new ideas about federalism?US v. Lopez preserved the system of federalism, which delegates certain powers to states and certain powers to the federal government. It upheld the principle that states have control of local issues, like gun possession on school grounds.
Which of the following is an accurate description of the decision in United States v Lopez 1995?Which of the following is an accurate description of the decision in United States v. Lopez (1995) ? The Gun-Free School Zones Act of 1990 was struck down as unconstitutional because it exceeded the commerce clause.
Which of these is the best explanation of the U.S. v Lopez decision's effects?Which of these is the best explanation of the US v. Lopez decision's effects? The law is unconstitutional because it did not significantly affect interstate commerce.
What implications did the decision in United States v Lopez have on the balance of power between the federal government and state governments?Lopez affected the balance of power between the federal and state governments. The Court's decision in Lopez struck down a federal law creating gun-free school zones, which limited the power of the federal government in relation to the states.
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The outcome of lopez v. u.s.(1995) rests most heavily on which of the following principles?
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