Judicial Power and Mobilizable History

One contribution that law professors can make to constitutional discourse, I suggest, is the nurturing of new mobilizable histories. A mobilizable history, as I will use the term, is a narrative, image, or other historical source that is sufficiently well-known to the community of constitutional decisionmakers so as to be able to support a credible argument in the discourse of constitutional law. It draws upon materials that are within the collective memory of constitutional interpreters; indeed, a necessary step in nurturing a new mobilizable history is to introduce new information into that collective memory or to raise the prominence of narratives and images that are already included in that memory but marginally so

Evaluation on the Implementation of Procedure in Giving Kur-micro (Kredit USAha Rakyat-mikro) Based on the Prudential Banking Principle (Study at Bank Rakyat Indonesia Malang Kawi)

The objectives of this research are to understanding the procedure in giving KUR-Micro (Kredit Usaha Rakyat-Mikro) that applied in PT. Bank Rakyat Indonesia (Persero),Tbk Malang Kawi and to evaluate the procedure in giving KUR-Micro (Kredit Usaha Rakyat-Mikro)that applied in PT. Bank Rakyat Indonesia (Persero), Tbk Malang Kawi based on prudential banking principle. Type of this research is qualitative research with descriptive approach. Focus in this research are procedure in giving KUR-Micro (Kredit Usaha Rakyat-mikro) and evaluate on the procedures in giving KUR-Micro that applied in PT. Bank Rakyat Indonesia (Persero), Tbk Malang Kawi. The results of this research shows, there are some procedures that applied by PT. Bank Rakyat Indonesia (Persero)Tbk Malang Kawi in giving KUR-Micro (Kredit Usaha Rakyat-Mikro) consist of request of credit, credit analysis, approval of credit, credit agreement, credit disbursement, credit monitoring, and credit repayment. The procedures above have applied well although there are still have the weakness it can be seen in procedure of credit monitoring. PT. Bank Rakyat Indonesia (Persero), Tbk Malang Kawi also has applied well the prudential banking principle in giving credit to debtor

Marshaling McCulloch

David Schwartz’s terrific new book is subtitled John Marshall and the 200-Year Odyssey of McCulloch v. Maryland. But the book is about much more than Marshall and McCulloch. It’s bout the long struggle over the scope of national power. Marshall and McCulloch are characters in the story, but the story isn’t centrally about them. Indeed, an important part of Schwartz’s narrative is that McCulloch has mattered relatively little in that struggle, except as a protean symbol

The Future Resists Control

Bruce Ackerman long ago persuaded me that Article V has not been the only route—or even the normal route—to legitimate constitutional change. Volume 3 admirably adds nuance to Ackerman’s account of what happens instead. But nuance can be a vice of a theory as well as a virtue, depending on whether the goal is to understand a phenomenon in its complexity or to provide an actionable program for the future. We The People aims to do both: it is, after all, a grand project, probably the most important in constitutional thought in the last thirty years. But in spite of its ambitions, Volume 3 may have helped persuade me to take Article V more seriously—not as a matter of exclusive constitutional authority for official decisionmakers, but as a matter of prudence for the agents of constitutional change

The Functions of Ethical Originalism

Supreme Court Justices frequently divide on questions of original meaning, and the divisions have a way of mapping what we might suspect are the Justices’ leanings about the merits of cases irrespective of originalist considerations. The same is true for law professors and other participants in constitutional discourse: people’s views of original constitutional meaning tend to align well with their (nonoriginalist) preferences for how present constitutional controversies should be resolved. To be sure, there are exceptions. Some people are better than others at suspending presentist considerations when examining historical materials, and some people are better than others at recognizing when a historical text taken on its own terms cannot support their own desired perspectives. But within American constitutional discourse, the prevailing tendency runs in the other direction. Despite the common claim that originalism constrains decisionmaking, people who disagree about constitutional issues tend to enact their disagreement in the realm of original meaning, as well as in the other realms of constitutional argument

Double-Consciousness in Constitutional Adjudication

Constitutional theorists are familiar with epistemic and consequentialist reasons why judges might allow their decision making to be shaped by strongly held public opinion. The epistemic approach treats public opinion as an expert indicator, while the consequentialistapproach counsels judges to compromise legally correct interpretations so as not to antagonize a hostile public. But there is also a third reason, which we can think ofas constitutive. In limited circumstances, the fact that the public strongly holds a given view can be one of the factors that together constitute the correct answer to a constitutional question. In those circumstances, what the public thinks must be an ingredient in the judge\u27s own view of the right answer

How the Gun-Free School Zones Act Saved the Individual Mandate

For all the drama surrounding the Commerce Clause challenge to the in-dividual mandate provision of the Patient Protection and Affordable Care Act (“PPACA”), the doctrinal question presented is simple. Under existing doctrine, the provision is as valid as can be. To be sure, the Supreme Court could alter existing doctrine, and many interesting things could be written about the dynamics that sometimes prompt judges to strike out in new directions under the pressures of cases like this one. But it is not my intention to pursue that possibility here. My own suspicion, for what it is worth, is that the Supreme Court will abide by its previously announced doctrines and uphold the individual mandate. So I mean to engage U.S. Department of Health and Human Services v. Florida as the easy case it is and to explore an underappreciated feature of how it came to be so easy. My focus is the role of United States v. Lopez, in which the Supreme Court famously struck down the Gun-Free School Zones Act of 1990 as beyond Congress’s power to enact under the Commerce Clause. In the conventional telling, Lopez (along with its sidekick, United States v. Morrison) is the source of the doctrinal threat to the PPACA’s individual mandate. Before Lopez, the Supreme Court had settled into the practice of upholding pretty much anything that Congress claimed to be within its commerce power, largely on the strength of the econometrically undeniable proposition that every law that does anything (or at least every law that does anything to a lot of people) has effects on interstate commerce. But for Lopez, the conventional view therefore runs, we would live for practical purposes in a world of plenary federal power. Courts would not take Commerce Clause challenges seriously, and any attack on the PPACA would have to be mounted on other grounds

Limits of Interpretivism

Justice Stephen Markman sits on the Supreme Court of my home state of Michigan. In that capacity, he says, he is involved in a struggle between two kinds of judging. On one side are judges like him. They follow the rules. On the other side are unconstrained judges who decide cases on the basis of what they think the law ought to be. This picture is relatively simple, and Justice Markman apparently approves of its simplicity. But matters may in fact be a good deal more complex