Serving the Syllogism Machine: Reflections on Whether Brandenburg is Now (or Ever Was) Good Law
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Examines how today, in most functioning constitutional democracies, the scope of judicial power-especially judicial power to trump the political branches is carefully defined in the constitutional text in an effort to adopt (and adapt) one of the most admired aspects of the United States political system: vigorous judicial protection of individual rights against the risk of majoritarian tyranny. Ironically, it is the mother ship-the United States Constitution-that lacks explicit textual support for the judicial enterprise. Without an explicit textual basis in the Constitution, this Article begs the question: where does the kind of fine-tuned judicial power exemplified by Brandenburg come from?