Not having seen either term before, I hadn't realized that the "disease of 'judicial exclusivism' is even worse than 'judicial supremacy,'" which I assume is another morbid constitutional disease.
I assume 'judicial exclusivism' refers to the claim, or belief, that only the Supreme Court justices create constitutional law. I had assumed that unless and until the Supreme Court ruled on something as being constitutional or unconstitutional, the issue was open to question as to constitutionality. In that sense, I understood Supreme Court decisions as being, well, supreme, in the disease sense, I guess. I'm aware that Pres. Madison vetoed the National (or Cumberland) Road as being unconstitutional, and Pres. Andrew Jackson either vetoed or refused to submit a bill renewing the Second Bank of the U.S. as being unconstitutional. I'm aware that other branches of government, and advising counsel everywhere, make their best educated guesses as to what's constitutional, and I understand that to be practicing constitutional law to one degree or another, in the sense of anticipating what the Court might hold, given a chance, but I never considered such act and opinion to be anywhere near as authorititative as a decision by the Nine Annointees. I'm wondering whether I'm understanding 'exclusiveness' and 'supremacy' as they're being used by Sandy. What are some good examples of constitutional law being made by other departments? My first guess would be the practices of the regulatory agencies, given deference by the Court in what, is it the Chevron doctrine? The Senate filibuster rule which we discussed at length earlier? If I'm going to do any inoculating of students, I'll need a supply of vaccine. (In looking up the spelling of inoculate, I see it is defined in Webster's II as 'to introduce a disease virus...so as to immunize, treat or test.' You sure you want me to introduce this virus?) Bob Sheridan SFLS > [Original Message] > From: Sanford Levinson <[EMAIL PROTECTED]> > To: <[EMAIL PROTECTED]> > Date: 6/30/2003 11:21:08 AM > Subject: Re: Teaching Contemporary Cases Before Marbury > > Eric writes: > I believe the Supreme Court's constitutional cases depend little on > doctrine and mostly on the political judgments of nine relatively bright > people (like a council of elders). Assuming Sandy, and others agree, I > think it is a difficult question how that view, if at all, should be > presented to students. I do it rather overtly and tell my students not to > be cynical but be realistic. A council of elders is a good idea (maybe), in > a government of separated powers. But, I do wonder what others do. > > > But, of course, many, many other governmental actors, not to mention > citizens, strategists for mass movements, etc., make "constitutional" > decisions of some import, and it is extremely important that students be > inoculated against the disease of judicial exclusivism (which is even worse > than judicial supremacy). > > sandy
