Copyright (c) 2009 All rights reserved. http://works.bepress.com/mark_graber Recent documents in Mark Graber en-us Sun, 31 May 2009 08:51:37 PDT 3600 http://works.bepress.com/mark_graber/38 http://works.bepress.com/mark_graber/38 Thu, 07 May 2009 13:16:16 PDT This review documents how scholarly concern with democratic deficits in American constitutionalism has shifted from the courts to electoral institutions. Prominent political scientists are increasingly rejecting the countermajoritarian difficulty as the proper framework for studying and evaluating judicial power. Political scientists, who study Congress and the presidency, however, have recently emphasized countermajoritarian difficulties with electoral institutions. Realistic normative appraisals of American political institutions, this emerging literature on constitutional politics in the United States maintains, should begin by postulating a set of democratic and constitutional goods, determine the extent to which American institutions as a whole are delivering those goods, and either explain how the political system as a whole might be redesigned to better deliver those goods or accept second-best constitutional goods that can actually be delivered by some attainable combination of political institutions. Mark A. Graber Constitutional Law http://works.bepress.com/mark_graber/37 http://works.bepress.com/mark_graber/37 Tue, 21 Apr 2009 04:54:49 PDT Mark A. Graber Constitutional Law http://works.bepress.com/mark_graber/36 http://works.bepress.com/mark_graber/36 Wed, 15 Apr 2009 08:33:43 PDT Mark A. Graber Constitutional Law http://works.bepress.com/mark_graber/35 http://works.bepress.com/mark_graber/35 Wed, 15 Apr 2009 05:33:49 PDT Mark A. Graber Constitutional Law http://works.bepress.com/mark_graber/34 http://works.bepress.com/mark_graber/34 Tue, 14 Apr 2009 12:29:25 PDT This paper explores whether national political questions during the second party system were resolved into questions adjudicated by the Supreme Court of the United States. The essay details an appropriate test for Tocqueville's thesis, demonstrates that most national political questions that excited Jacksonians were not resolved into judicial questions, and explains why Tocqueville's thesis does not accurately describe national constitutional politics during the three decades before the Civil War. That most political questions were not resolved into judicial questions during the three decades before the Civil War given common political science claim that "(v)irtually any issue the Court might wish to resolve is offered to it." That Jacksonian political actors did not resolve all political questions into constitutional questions or into constitutional questions adjudicated by the Supreme Court requires major rethinking of the role of law and political choice in structuring the Supreme Court's agenda. Mark A. Graber Legal History http://works.bepress.com/mark_graber/32 http://works.bepress.com/mark_graber/32 Thu, 02 Apr 2009 05:17:23 PDT Mark A. Graber Constitutional Law http://works.bepress.com/mark_graber/33 http://works.bepress.com/mark_graber/33 Thu, 02 Apr 2009 05:16:11 PDT Mark A. Graber Constitutional Law http://works.bepress.com/mark_graber/31 http://works.bepress.com/mark_graber/31 Mon, 09 Mar 2009 10:58:38 PDT James Buchanan is often credited with being the unlikely savior of judicial review in early Jacksonian America. In 1831, Buchanan, then a representative from Pennsylvania, issued a minority report criticizing the proposed repeal of Section 25 of the Judiciary Act of 1789 that is generally credited with convincing a skeptical Congress that fundamental constitutional norms required federal judicial oversight of state courts and state legislatures. This paper claims that federalism and political fragmentation were more responsible than James Buchanan for the failed repeal of Section 25, for the maintenance of judicial power in the United States during the transition from National Republican rule to Jacksonian Democracy that took place during the 1820s and 1830s, and for the maintenance of judicial power in the United States during other political transitions. The Jacksonian experience more generally highlights how political diffusion helps preserve judicial power both during periods of political stability when no existing coalition fully controls the national government and during periods of political reconstruction or realignment when a new coalition gains control of the national government. Judicial power, the evidence from 1831 and other times suggests, thrives in a political environment more characterized by intercurrence than realignment. In political environments characterized by intercurrence, the political institutions that must unite for a successful challenge to federal courts are rarely on the same page. Challenges to judicial authority occur more frequently because, in a world of relatively autonomous elected branches of government, at least one is likely to be seriously at odds with decision making trends on the Supreme Court. These more frequent challenges are also more likely to fail because other elected branches of government are more likely to be moving more in step with the judicial majority than the challenging branch of the national government. Just ask the southern Jacksonians who discovered that the political transformations that gave them the power to elect one of their own Speaker of the House were not sufficient in 1831 to align the rest of the Congress against the Supreme Court. Mark A. Graber Legal History http://works.bepress.com/mark_graber/30 http://works.bepress.com/mark_graber/30 Mon, 18 Aug 2008 06:00:42 PDT Mark Graber Constitutional Law http://works.bepress.com/mark_graber/29 http://works.bepress.com/mark_graber/29 Tue, 22 Jul 2008 12:37:57 PDT Mark Graber Constitutional Law