UMass Law Professor Dwight Duncan published an article in the Brigham Young University Journal of Public Law proposing to modify the Supreme Court’s handling of constitutional challenges to legislation.
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UMass Law Professor Dwight Duncan published his article, A Modest Proposal on Supreme Court Unanimity to Constitutionally Invalidate Laws, in the Brigham Young University Journal of Public Law. The article addresses the history of divided Supreme Court decisions invalidating democratically enacted laws. Professor Duncan proposes that Supreme Court decisions must be unanimous to overturn legislation on constitutional grounds. The article also shows that unanimous constitutional decisions have been better received than split decisions.
“The text of the U.S. Constitution, though, cannot be shoehorned into being made capable of resolving every case. To the extent that the U.S. Constitution does not decide the question at hand, freedom prevails, or should prevail. One might even cite the religious maxim, ‘in necessariis unitas, in dubiis libertas, in omnibus caritas’— ‘unity in necessary things, freedom in doubtful ones and love in everything,’—but applying it to constitutional interpretation.”