Tabatha Abu El-Haj

Linking the Questions: Judicial Supremacy as a Matter of Constitutional Interpretation

Tabatha Abu El-Haj — Wed, 11 Jan 2012 06:49:10 PST

This Article explains that what has been missing from the debate between advocates of popular constitutionalism and defenders of judicial supremacy is any account of the practice of constitutional interpretation. Without a clear sense of what constitutional interpretation involves, we cannot assess the prevailing assumption that the Supreme Court is uniquely positioned to interpret the Constitution or explore an expertise-based justification for its claim to finality. The Article, therefore, revisits the debate about judicial supremacy by starting, not with history or politics, but with constitutional interpretation itself.

Having explored the practice of constitutional interpretation, it concludes that the Supreme Court can claim expertise with respect to determining constitutional meaning, but that its expertise has limits. The Article proceeds to explore whether and how this insight might be translated into limits to judicial supremacy. Toward that end, it develops a framework for assessing when the work of constitutional interpretation should be shared between the Supreme Court, the other branches of government, and the public itself. Finally, it uses the Court’s doctrine with respect to race-conscious legislative districting to illustrate how the proposed framework might work.

Changing the People: Legal Regulation and American Democracy

Tabatha Abu El-Haj — Wed, 11 Jan 2012 06:47:40 PST

The world in which we live, a world in which law pervades the practice of democratic politics – from advance regulation of public assemblies to detailed rules governing elections – is the product of a particular period of American history. Between 1880 and 1930, states and municipalities increased governmental controls over the full range of nineteenth-century avenues for democratic participation. Prior to this legal transformation, the practice of democratic politics in the United States was less structured by law and more autonomous from formal state institutions than it is today. Exposing this history challenges two core assumptions driving the work of contemporary scholars who write about the law of the American political process. First, the nineteenth-century mode of regulating politics belies the existing literature’s assumption that law must extensively structure democratic politics. Second, this account of nineteenth-century American democracy serves as a reminder that elections, political parties and voting, while critical to democracy, are not the whole deal. It thereby challenges Law of Democracy scholars to move beyond the existing literature’s narrow conception of democracy as elections and to consider more broadly the practice of democracy in America.

Armed Conflict: The Protection of Children Under International Law

Carolyn Hamilton et al. — Thu, 20 Aug 2009 09:09:13 PDT

Book Review: The Calligraphic State: Conceptualizing the Study of Society Through Law

Tabatha Abu El-Haj — Thu, 20 Aug 2009 09:04:29 PDT

The Neglected Right of Assembly

Tabatha Abu El-Haj — Thu, 20 Aug 2009 09:02:11 PDT

This Article considers changes in both our understanding of the constitutional right of peaceable assembly and our regulatory practices with respect to public assemblies. It shows that through the late nineteenth century the state could only interfere with gatherings that actually disturbed the public peace, whereas today the state typically regulates all public assemblies, including those that are both peaceful and not inconvenient, before they occur, through permit requirements. Through this regulatory shift, and judicial approval of it, the substance of the right of peaceable assembly was narrowed. The history recounted in this Article is significant because it provides insight into the democratic and social practices the right was intended to protect—insight that cautions against collapsing the collective right of assembly into the individual right of free expression.