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Recovering the Political Constitution: The Madisonian Vision

Published online by Cambridge University Press:  05 August 2009

Abstract

Constitutional theory has recently turned to the importance of extrajudicial constitutional interpretation. Yet much of the scholarly debate remains rooted in “legal” views of the Constitution, which continue to give primacy to the Court. This article seeks to go further by articulating a Madisonian view of the Constitution, which resituates questions of interpretation within a larger institutional framework. This Madisonian view suggests that the Constitution calls forth continual debate about constitutional meaning. The “settlement” of constitutional issues is not an essential feature of our constitutional system and, thus, constitutional politics with overlapping views, discontinuities, and essentially unsettled meanings are inherent features of the Madisonian Constitution. Recovering the Madisonian vision is an essential step in restoring both the political branches and the Court to the proper place in the constitutional scheme and, in doing so, overcoming the deeply ingrained myth of judicial supremacy.

Type
Research Article
Copyright
Copyright © University of Notre Dame 2004

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References

I would like to thank Dean Alfange, John Brigham, Mark Graber, Shelly Goldman, Jeff Sedgwick, and Keith Whittington for comments on an earlier version of this article.

1. First Things, 11 1996Google Scholar Symposium, “The End of Democracy? The Judicial Usurpation of Politics”; Perry, Michael, We the People: The Fourteenth Amendment and the Supreme Court (New York: Oxford University Press, 1999), pp. 314Google Scholar (both of which focus on the judicial usurpation of politics in particular Court decisions); Sunstein, Cass, One Case at a Time: Judicial Minimalism on the Supreme Court (Cambridge, MA: Harvard University Press, 1998Google Scholar) (appealing for judicial minimalism); Tushnet, Mark, Taking the Constitution Away from the Courts (Princeton: Princeton University Press, 1998) (rejecting judicial review), pp. 632Google Scholar.

2. See, generally, Murphy, Walter, “Who Shall Interpret? The Quest for the Ultimate Constitutional InterpreterReview of Politics 48 (1986CrossRefGoogle Scholar). Keith Whittington has most fully elaborated the political Constitution, but he draws a distinction between interpretation and construction that, in the end, tends to reinforce the Court's connection with the (legal) Constitution. Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review (Lawrence, KS: University Press of Kansas, 1999Google Scholar). Other works have articulated a political view of the Constitution, but see it as giving way to the legal view. See especially Graber, Mark, Dred Scott and the Problem of Constitutional Evil (Princeton: Princeton University Press, forthcomingGoogle Scholar); Griffin, Stephen, American Constitutionalism: From Theory to Practice (Princeton: Princeton University Press, 1998), p. 45Google Scholar; and Snowiss, Sylvia, Judicial Review and the Law of the Constitution (New Haven: Yale University Press, 1990Google Scholar). But see also, Gordon, Scott, Controlling the State: Constitutionalism From Ancient Athens To Today (Cambridge: Harvard University, 1999Google Scholar) and Thomas, George, “As Far as Republican Principles Will Admit: Presidential Prerogative and Constitutional GovernmentPresidential Studies Quarterly 30, no. 3 (2000)CrossRefGoogle Scholar, (which situates presidential prerogative within the Madison Constitution).

3. See especially, Ackerman, Bruce, We the People: Transformations (Cambridge, MA: Harvard University Press, 1998Google Scholar) and Whittington, Keith, “The Political Foundations of Judicial Power” in Constitutional Politics: Essays on Constitutional Making, Maintenance, and Change, ed. George, Robert and Barber, Sotirios (Princeton: Princeton University Press, 2001)Google Scholar and Presidential Challenges to Judicial Supremacy and the Politics of Constitutional Meaning,” Polity 33, no. 3 (2001).Google Scholar

4. This is especially true of Ackerman's We the People, where the Court, essentially, ratifies the people's constitutional transformation.

5. Moore, Wayne, Constitutional Rights and Powers of the People (Princeton: Princeton University Press, 1996)Google Scholar. When I refer to the Madisonian Constitution or the Madisonian solution to maintaining constitutional government, I do not mean to suggest that it has developed exactly as Madison himself would want it to, or that it is “proper” because Madison saw it this way. Rather, I argue that the system can be described as Madisonian because it operates broadly as he suggested even if many of the particulars go against his own vision.

6. Seidman, Louis, Our Unsettled Constitution: A New Defense of Constitutionalism and Judicial Review (New Haven: Yale University Press, 2001)Google Scholar examines how judicial review may work to unsettle politics, but the argument on the whole is a normative justification for a particular view of the Court and judicial review.

7. Huntington, Samuel, American Politics: The Promise of Disharmony (Cambridge, MA: Harvard University Press, 1981)Google Scholar.

8. See especially Planned Parenthood v. Casey 505 U.S. 833, 868 (1992)Google Scholar; City or Boerne v. Flores 521 U.S. 507, 529 (1997)Google Scholar; Cooper v. Aaron, 358 U.S. 1, 18 (1958)Google Scholar. Brigham, John has described this as The Cult of the Court (Philadelphia: Temple University Press, 1987)Google Scholar.

9. Casey, Justice Scalia dissenting at 981, 996, 999Google Scholar. See also Scalia's, dissent in Lawrence v. Texas 539 U.S.__(2003)Google Scholar.

10. The insistence of grounding judicial review is characteristic of the originalism of Berger, Rauol, Government by Judiciary: The Transformation of the Fourteenth Amendment (Indianapolis: Liberty Fund, 1998)Google Scholar, Bork, Robert, The Tempting of America: The Political Seduction of the Law (New York: Free Press, 1991)Google Scholar, and Scalia, Antonin, A Matter of Interpretation (Princeton: Princeton University Press, 1996)Google Scholar. Recent originalists, however, are more concerned with principled constitutional interpretation, rather than grounding judicial will. See Whittington, Keith, Constitutional Interpretation, Barnett, Randy, Restoring the Lost Constitution: The Presumption of Liberty (Princeton: Princeton University Press, 2004)Google Scholar, and Arkes, Hadley, The Return of George Sutherland: Restoring a Jurisprudence of Natural Rights (Princeton: Princeton University Press, 1994)Google Scholar.

11. See Madison's, “The Virginia Report” in The Mind of the Founder: Sources of Political Thought of James Madison, ed. Myers, Marvin (New York: Bobs-Merrill, 1973), pp. 297349Google Scholar.

12. For a subtle defense of judicial deference that tacitly recognizes this dilemma see Carrese, Paul, The Cloaking of Power: Montesquieu, Blackstone, and the Rise of Judicial Activism (Chicago: University of Chicago Press, 2003)CrossRefGoogle Scholar.

13. This does not reject deference in all circumstances. It is proper to defer if the Constitution vests a particular branch as the central constitutional actor (as may be argued in the case of war and the political branches).

14. Marbury v. Madison, 1 Cranch 137 (1803) at 178Google Scholar.

15. Wood, Gordon, Creation of the American Republic (Chapel Hill: University of North Carolina Press, 1998 [1969]), p. 281Google Scholar.

16. Tucker, St. George, View of the Constitution of the United States (Indianapolis: Liberty Fund, 1999) p. 105Google Scholar. See also Wood, , The Creation of the American Republic, p. 275Google Scholar, and McDowell, Gary, “Coke, Corwin, and the Constitution: The ‘Higher Law Background’ Reconsidered,” Review of Politics 55, no. 3 (1993)Google Scholar. The Madisonian Constitution draws explicitly on the written nature of the Constitution. The ability to read the Constitution—to make sense of it as fundamental law—did not require special training, but could be clearly grasped by the average citizen. Indeed, the very move to mark down the Constitution in writing was a rejection of the unwritten British constitution, not just because it could be easily altered, but because such a constitution was removed from the citizens who were the basis of all legitimate authority in the American mind. The Americans thus rejected Coke's dictum that the law was based on “artificial reason” and therefore the peculiar province of those tutored in the law insofar as it applied to discerning constitutional meaning. This highlights, as well, the fundamental distinction between ordinary law (where this might be acceptable) and the written Constitution. Thus, rooting judicial supremacy in the peculiar training of lawyers and courts undermines the very foundation of a written Constitution as conceived by the Americans. See Madison's “Virginia Report.”

17. Harris, William, The Interpretable Constitution (Baltimore: Johns Hopkins University Press, 1993), p. 2Google Scholar. See also Brandon, Mark, Free in the World: Slavery and Constitutional Failure (Princeton: Princeton University Press, 1998)Google Scholar.

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19. Marbury at 177Google Scholar.

20. Madison, , The Federalist Papers, No. 51, pp. 290–91Google Scholar. See also Zuckert, Michael, “Epistemology and Hermeneutics in the Constitutional Jurisprudence of John Marshall” in John Marshall's Achievement: Law, Politics and Constitutional Interpretations, ed. Shevory, Thomas (Westport, CT: Greenwood Press, 1989)Google Scholar.

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22. Slaughterhouse Cases, 83 U.S. 36 (1873)Google Scholar.

23. See especially Korematsu v. United States, 323 U.S. 214 (1944)Google Scholar.

24. Madison, Virginia Ratifying Convention. See also Graber, Mark, “Our (Im)Perfect ConstitutionReview of Politics 51 (1989): pp. 86, 101CrossRefGoogle Scholar.

25. “First Inaugural Address” in Lincoln: Selected Speeches and Writings (New York: Vintage Books, 1992), p. 290Google Scholar.

26. At least in an immediate sense. Lincoln, much like Madison, seems open to the fact that such issues may be settled overtime through the political process—but not by the Court alone. See also Graber, , Dred Scott and the Problem of Constitutional EvilGoogle Scholar.

27. Tushnet, Mark, “Marbury v. Madison and Judicial Supremacy” in Great Cases in Constitutional Law, ed. George, Robert (Princeton: Princeton University Press, 2000), p. 43Google Scholar.

28. Whittington, , Constitutional Interpretation, p.172Google Scholar.

29. %Ibid. Pp. 172, 174. See also Whittington, , “The Road Not Taken: Dred Scott, Judicial Authority, and Political Questions,” The Journal of Politics 63, no. 2 (2001): 365–91CrossRefGoogle Scholar and Ackerman, Bruce, We the People: Foundations (Cambridge, MA: Harvard University Press, 1991Google Scholar).

30. Agresto, John, The Supreme Court and Constitutional Democracy (Ithaca: Cornell University Press, 1984), p, 71Google Scholar.

31. Marbury at 174Google Scholar. Eisgruber, Christopher, Constitutional Self-Government (Cambridge, MA: Harvard University Press, 2001)Google Scholar, for example, begins with the notion that our Constitution is a framework of governance, but then very quickly argues that judges should interpret the Constitution based on their notions of justice (with very little concern about how this has actually worked out historically).

32. Griffin, , American Constitutionalism, pp. 5987Google Scholar.

33. Tushnet, , Taking the Constitution Away From the Courts, pp. 95128Google Scholar.

34. This has perhaps changed with the ratification of the Fourteenth Amendment, which arguably paved the way for the legalization of the Constitution shifting our focus to rights (and courts) and away from constitutional structure. But such a reading relies on a legalist view of the amendment overlooking the fact that Congress seems to have been entrusted by way of section 5 with defending (and perhaps defining) constitutional rights. Furthermore, recent scholarship casts serious doubt on any special connection between rights—even in a bill of rights—and the judiciary, suggesting that the articulation of rights fits within a political view of the Constitution. See Amar, Akhil, The Bill of Rights (New Haven: Yale University Press, 1998)Google Scholar and Dinan, John, Keeping the People's Liberties (Lawrence, KS: University Press of Kansas, 1998)Google Scholar.

35. The Federalist Papers, No. 51, p. 288Google Scholar.

36. %Ibid., p. 288. For a discussion of the solutions Madison rejected, see Burt, Robert, The Constitution in Conflict (Cambridge, MA: Harvard University Press), p.47Google Scholar.

37. %Ibid., p. 289.

38. %Ibid., p. 290.

39. Rakove, Jack, Original Meanings: Politics and Ideas in the Making of the Constitution (New York: Knopf, 1996), p. 345Google Scholar.

40. Annals of Congress, 1: 519–21 (06 17, 1789)Google Scholar. See also Rakove, , Original Meanings, p. 348Google Scholar and Judicial Power in the Constitutional Theory of James Madison,” William and Mary Law Review 43 (2002): 1513–47Google Scholar. It is interesting to note that the “great” presidents all advocated their power of constitutional interpretation against the Court, often going so far as to engage in constitutional politics and articulating their own “constitutional vision,” which, as reconstructive presidents, all became dominant. See Skowronek, Stephen, The Politics Presidents Make: Leadership from John Adams to George Bush (Cambridge, MA: Harvard University Press, 1993)Google Scholar.

41. Griffin, , American Constitutionalism, p. 41Google Scholar.

42. %Ibid., p. 45.

43. Rakove, , Original Meanings, p. 348Google Scholar.

44. Wilson, Woodrow, Constitutional Government in the United States (New York: Columbia University Press, 1910)Google Scholar.

45. See Tulis, Jeffrey, The Rhetorical Presidency (Princeton: Princeton University Press, 1986)Google Scholar and Korn, Jessica, The Power of Separation: American Constitutionalism and the Myth of the Legislative Veto (Princeton: Princeton University Press, 1996)Google Scholar.

46. Alexander, Larry and Schauer, Frederick, “On Extrajudicial Constitutional Interpretation,” Harvard Law Review 110 (1997): 1359–87CrossRefGoogle Scholar and Defending Judicial Supremacy: An Argument,” Constitutional Commentary 17 (2000): 455–82, 464Google Scholar. See also Tribe, Laurence, American Constitutional Law, third edition, volume one (New York: Foundation Press, 2000)Google Scholar. For critiques of Alexander and Schauer, see Whittington, Keith, “Extrajudicial Constitutional Interpretation—Three Objections and a ResponseUniversity of North Carolina Law Review 80 (2002): 3Google Scholar and Peabody, Bruce, “Nonjudicial Constitutional Interpretation, Authoritative Settlement, and a New Agenda for Research,” Constitutional Commentary 16 (1999): 6390Google Scholar.

47. Murphy, , “Who Shall Interpret?” p. 402Google Scholar.

48. Levinson, Sanford, Constitutional Faith (Princeton: Princeton University Press, 1989), p. 43Google Scholar.

49. Fisher, , Constitutional Dialogues, pp. 231–74Google Scholar.

50. Whittington, Keith, Constitutional Construction: Divided Powers and Constitutional Meaning (Cambridge, MA: Harvard University Press), p. 5Google Scholar. This also suggests a deeper point that is often neglected by our focus on the judiciary, and that is the political underpinnings of judicial power. Judicial independence may depend, in one way or another, on the compliance of the other branches. See Whittington, “The Political Foundations of Judicial Power.”

51. The repeal of the Judiciary Act of 1801 by the Judiciary Act of 1802 is also a prime example, but one I do not take up for reasons of space.

52. Madison to Jefferson, Thomas, 06 30, 1789Google Scholar in The Papers of James Madison, ed. Hutchinson, William T., Rachal, William M. E., and Rutland, Robert (Chicago: University of Chicago Press, 1962), 12: 290–91Google Scholar. See also Rakove, , Original Meanings, p. 349Google Scholar.

53. Gary Jacobsohn notes that the consensus in Congress—unlike Madison's argument—did not question “the finality of the judicial determination of constitutionality,” although that is not quite the same things as endorsing it. The Supreme Court and the Decline of Constitutional Aspiration (Lanham, MD: Rowman and Littlefield, 1986), p. 123Google Scholar.

54. Annals of Congress, 1: 519–21 (06 17, 1789)Google Scholar.

55. %Ibid. See also Rakove, , Original Meanings, p. 348Google Scholar.

56. Fisher, , Constitutional Dialogues, pp. 231–79Google Scholar. Agresto's departmentalism seems to be more along these lines as well, insofar as he puts emphasis on the dynamic of the checks and balances and interaction between the branches, The Supreme Court and Constitutional Democracy, pp. 99102Google Scholar. Gary Jacobsohn suggests that Lincoln's views on judicial review, properly understood, also put it in this light. The Supreme Court and the Decline of Constitutional Aspiration, pp. 95112Google Scholar.

57. See Clinton, Robert Lowry, Madison, Marbury v.and Judicial Review (Lawrence, KS: University Press of Kansas, 1989)Google Scholar for perhaps the most influential statement of this view. See also, Hobson, Charles, The Great Chief Justice: John Marshall and the Rule of Law (Lawrence, KS: University Press of Kansas, 1996)Google Scholar. Hobson suggests that Marshall's “defense of judicial review fully agreed with the “departmental” theory of constitutional interpretation, according to which each of the three coordinate departments of government had final authority to interpret the Constitution when acting within its own sphere of duties and responsibilities,” p. 67. Although Corwin, Edward, Court Over Constitution (Princeton: Princeton University Press, 1938)Google Scholar who coined the term, surely meant “coordinate construction.”

58. Annals of Congress, 1 (06 16, 1789)Google Scholar. See also Madison, , “The Virginia Report,” pp. 303, 330Google Scholar; Madison, to Roane, Spencer, 09 2, 1819Google Scholar in Rakove, , Original Meanings, p. 348Google Scholar.

59. The Annals of the First Congress, 1789–1791, pp. 464, 461Google Scholar.

60. When the Court later addressed the president's removal power, Chief Justice Taft turned to Madison's arguments in the House. Myers v. United States, 272 U.S. 52 (1926)Google Scholar. This power was qualified in later Court decisions regarding the president's power to remove officers performing quasi-legislative and quasi-judicial duties, Wiener v. United States, 357 U.S. 349 (1958)Google Scholar and Humphrey's Executor v. United States, 295 U.S. 602 (1935)Google Scholar. See also Fisher, , Constitutional Dialogue, p. 238Google Scholar.

61. “But the proposed bank could not even be called necessary to the government; at most it could be but convenient.” Madison, James, “The Bank Bill, House of Representatives 2 Feb. 1791,” in, The Founder's Constitution, ed. Kurland, Philip and Lerner, Ralph (Indianapolis: Liberty Fund, 1987), 3: 245Google Scholar. “A bank there is not necessary, and consequently not authorized by this phrase,” Jefferson, Thomas, “Opinion on the Constitutionality of the Bill for Establishing a National Bank, 15 Feb. 1791,” p. 246Google Scholar. See also Hamilton, Alexander, “Opinion on the Constitutionality of the Bank, 23 02. 1791,–Google Scholar %ibid., pp. 247–50.

62. Graber, Mark, “The Jacksonian Origins of Chase Court Activism,” Journal of Supreme Court History, 25, no. 2 (2000): 1819CrossRefGoogle Scholar.

63. Magliocca, Gerard, “Veto! The Jacksonian Revolution in Constitutional Law,” University of Nebraska Law Review 78 (1999): 205–62Google Scholar.

64. Madison quoted in Rosen, Gary, American Compact: James Madison and the Problem of Founding (Lawrence, KS: University Press of Kansas, 1998), p. 172Google Scholar. See alsoMadison, to Spencer Roane, 09 2, 1819Google Scholar and Madison, to Reynolds Chapman 01 6, 1831Google Scholar both in Kurland, and Lerner, , The Founder's Constitution, 3: 259, 262Google Scholar.

65. In discussing McCulloch, perhaps the leading constitutional law casebook, Gunther, Gerald and Sullivan, Kathleen, Constitutional Law (New York: Foundation Press, 1997) 13th ed.Google Scholar, gives a history of the debate prior to McCulloch and speaks of scholarly debate since McCulloch, but does not speak of Jackson's veto and the effective settlement of the issue for several decades seemingly against Marshall's opinion. Gunther and Sullivan acknowledge that “the McCulloch decision, important as it is, was no more the end than the beginning of the debate.” Yet, they are speaking of the national legislature's ability to reach local affairs and not the power to establish a bank. Two leading books by political scientists fare no better. O'Brien's, DavidConstitutional Law and Politics (New York: W.W. Norton, 1998), 4th ed.Google Scholar, gives a similar history and suggests that Marshall's interpretation seems correct and has been confirmed by subsequent Court opinions—namely, The Legal Tender Cases (1884)Google Scholar and Katzenbach v. Morgan (1966)Google Scholar. But this (1) eclipses a large portion of our constitutional history (1819–1884) and (2) focuses again on the Court missing how the other branches seem to have settled a vital constitutional questions without turning to the Court. Epstein, Lee and Walker's, ThomasConstitutional Law (Washington, D.C.: CQ Press, 1998)Google Scholar, fourth edition, gives a history of the conflict prior to Marshall's opinion but says nothing of what came after 1819. This from two leading empirical political scientists! Murphy, , Barber, and Fleming, , American Constitutional Interpretation,Google Scholar give a history of the conflict and Jackson's statement rejecting Marshall's opinion. But then this book specifically seeks to give an alternate view of the Constitution and questions of constitutional interpretation, rejecting much of conventional understanding.

66. McCulloch v. Maryland 4 Wheat. (17 U.S.) 316, 401 (1819)Google Scholar.

67. At least on the question of whether the national government could establish a bank. Whether or not a state may tax that bank once established was an open question. See also Moore, Constitutional Rights and Powers of the People.

68. McCulloch at 400401Google Scholar.

69. %Ibid.

70. Jackson, Andrew, Veto Message, 07 10, 1832Google Scholar in Lerner, and Kurland, , The Founder's Constitution, 3: 263–67Google Scholar.

71. Skowronek, , The Politics Presidents Make.Google Scholar

72. Magliocca, , “Veto!,” p. 212Google Scholar.

73. While judicial review might seem to flow ineluctably from the very notion of checks and balances, Madison does not discuss it in those terms. In his classic exegesis of checks and balances in Federalist, No. 51, discussed above, Madison never even mentions the judiciary. In fact, he rejects a means similar to judicial review. One notable solution to keeping the majority in check, Madison says, is to create “a will in the community independent of the majority—that is, of the society itself.” The Court, as an unelected and undemocratic branch of government, that great “countermajoritarian” institution, seems suspiciously independent of society, a solution unacceptable to Madison. It can scarcely be doubted that Madison was genuinely perplexed by the notion of judicial review. Other than Hamilton's Federalist, No. 78, perhaps the most prominent reference is in Federalist, No. 16, also by Hamilton, , “If the judges were not embarked in a conspiracy with the legislature, they would pronounce the resolution of such a majority to be contrary to the supreme law of the land, unconstitutional, and void” (The Federalist Papers, p. 85)Google Scholar.

74. Madison, to Brown, John, 10 12, 1788Google Scholar, “Remarks on Mr. Jefferson's ‘Draught of a Constitution’” in Myers, , The Mind of the Founder, pp. 6566Google Scholar. Madison's argument must also be separated from arguments for legislative supremacy, the type that Gibson, John Bannister made in Eakin v. Raub, 12 Sergeant & Rawle 330 (1825).Google Scholar Legislative supremacy, too, was unacceptable.

75. Cushman, Barry, Rethinking the New Deal Court: The Structure of a Constitutional Revolution (New York: Oxford University Press, 1998)Google Scholar.

76. Gillman, Howard, “Preferred Freedoms: The Progressive Expansion of State Power and the Rise of Modern Civil Liberties Jurisprudence,” Political Research Quarterly 47, no.3 (1994)CrossRefGoogle Scholar.

77. This is at least true of the Chief Justice and Justices Scalia and Thomas. Indeed, their rejection of “substantive due process” places them squarely within the contours of the “Constitutional Revolution of 1937” when it comes to so-called unenumerated rights.

78. Stenberg v. Carhart 530 U.S. 914 (2000)Google Scholar. See especially the exchange between Justices O'Connor (at 947) and Kennedy (at 957) over the meaning of Casey.

79. See Rosen, Jeffrey, “Worst Choice: Why We'd be Better off Without Roe,” The New Republic, 02 24, 2003Google ScholarPubMed.

80. “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” The United States Constitution, Amendment XIV, Section 5.

81. City of Boerne v. Flores 521 U.S. 507 (1997)Google Scholar. See also Cooper v. Aaron, 358 U.S. 1 (1958)Google Scholar.

82. Nagel, Robert, The Implosion of American Federalism (New York: Oxford University Press, 2001), pp. 9293Google Scholar; Long, Carolyn, Religious Freedom and Indian Rights: The Case of Oregon v. Smith (Lawrence, KS: University Press of Kansas, 2000), pp. 227–50Google Scholar; and Fisher, Louis, Religious Liberty in America: Political Safeguards (Lawrence, KS: University Press of Kansas, 2002), pp. 175201Google Scholar.

83. See Powe, Lucas A., The Warren Court and American Politics (Cambridge, MA: Harvard University Press, 2000), pp. 264–65Google Scholar.

84. Dubbed “Son of RFRA” passed in 2000Google Scholar.

85. United States v. Morrison 529 U.S. 598 (2000)Google Scholar.

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