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Articles 31 - 60 of 302
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The New Federalism, The Spending Power, And Federal Criminal Law, Richard W. Garnett
The New Federalism, The Spending Power, And Federal Criminal Law, Richard W. Garnett
Richard W Garnett
It is difficult in constitutional-law circles to avoid the observation that we are living through a revival of federalism. Certainly, the Rehnquist Court has brought back to the public-law table the notion that the Constitution is a charter for a government of limited and enumerated powers, one that is constrained both by that charter's text and by the structure of the government it creates. This allegedly revolutionary Court seems little inclined, however, to revise or revisit its Spending Power doctrine, and it remains settled law that Congress may disburse funds in pursuit of ends not authorized explicitly in Article I …
Judicial Enforcement Of The Establishment Clause, Richard W. Garnett
Judicial Enforcement Of The Establishment Clause, Richard W. Garnett
Richard W Garnett
This paper is the author’s contribution to a roundtable conference, held in October of 2008 at Notre Dame Law School, devoted to Prof. Kent Greenawalt’s book, Religion and the Constitution: Establishment and Fairness. It is suggested that Greenawalt’s admirably context-sensitive approach to church-and-state questions might lead us to think that the best course for judges is to find (somehow) some bright-line, on-off “rules” and “tests”, constructed to identify and forbid the most obvious violations of the Religion Clause’s core (whatever that is), and to give up on -- or, perhaps, “underenforce” -- the rest.
The Political (And Other) Safeguards Of Religious Freedom, Richard W. Garnett
The Political (And Other) Safeguards Of Religious Freedom, Richard W. Garnett
Richard W Garnett
This essay is a contribution to a symposium marking the 20th anniversary of the Supreme Court’s still-controversial decision in Employment Division v. Smith. That decision, it is suggested, should not be read as reflecting or requiring hostility or indifference towards claims for legislatively enacted accommodations of religion. Smith is not an endorsement of religion-blind neutrality in constitutional law; instead, it assigns to politically accountable actors the difficult, but crucially important, task of accommodating those whose religious exercise would otherwise be burdened by generally applicable laws. The essay goes on to suggest several things that must be true of our law …
Assimilation, Toleration, And The State's Interest In The Development Of Religious Doctrine, Richard Garnett
Assimilation, Toleration, And The State's Interest In The Development Of Religious Doctrine, Richard Garnett
Richard W Garnett
Thirty-five years ago, in the context of a church-property dispute, Justice William Brennan observed that government interpretation of religious doctrine and judicial intervention in religious disputes are undesirable, because when civil courts undertake to resolve [doctrinal] controversies..., the hazards are ever present of inhibiting the free development of religious doctrine and of implicating secular interests in matters of purely ecclesiastical concern. This statement, at first, seems wise and fittingly cautious, even unremarkable and obvious. On examination, though, it turns out to be intriguing, elusive, and misleading. Indeed, Justice Brennan's warning presents hazards of its own, and its premises - if …
Introduction: Religion, Division, And The Constitution, Richard W. Garnett
Introduction: Religion, Division, And The Constitution, Richard W. Garnett
Richard W Garnett
No abstract provided.
Judicial Review, Local Values, And Pluralism, Richard W. Garnett
Judicial Review, Local Values, And Pluralism, Richard W. Garnett
Richard W Garnett
At the Federalist Society's 2008 National Student Symposium, a panel of scholars was asked to consider the question, does pervasive judicial review threaten to destroy local identity by homogenizing community norms? The answer to this question is yes, pervasive judicial review certainly does threaten local identity, because such review can homogenize[e] community norms, either by dragging them into conformity with national, constitutional standards or (more controversially) by subordinating them to the reviewers' own commitments. It is important to recall, however, that while it is true that an important feature of our federalism is local variation in laws and values, it …
Religious Freedom, Church Autonomy, And Constitutionalism, Richard W. Garnett
Religious Freedom, Church Autonomy, And Constitutionalism, Richard W. Garnett
Richard W Garnett
No abstract provided.
Chief Justice Rehnquist's Enduring Democratic Constitution, Richard W. Garnett
Chief Justice Rehnquist's Enduring Democratic Constitution, Richard W. Garnett
Richard W Garnett
William H. Rehnquist's essay, The Notion of a Living Constitution, was delivered as the Will E. Orgain Lecture and then published thirty years ago, back when Rehnquist was still a relatively junior Associate Justice. The piece provides a clear and coherent statement of Rehnquist's judicial philosophy, and the Harvard Journal of Law and Public Policy and the Texas Law Review deserve thanks for their initiative and generosity in reproducing it, in memory of his life and work.
This introduction to Rehnquist's essay highlights his view that the Notion of a Living Constitution was to be resisted, not out of pious …
Formalism And Realism In Commerce Clause Jurisprudence, Barry Cushman
Formalism And Realism In Commerce Clause Jurisprudence, Barry Cushman
Barry Cushman
This Article attempts a reconceptualization of developments in Commerce Clause jurisprudence between the Civil War and World War II by identifying ways in which that jurisprudence was structurally related to and accordingly deeply influenced by the categories of substantive due process and dormant Commerce Clause doctrine. Antecedent dormant Commerce Clause jurisprudence set the terms within which Commerce Clause doctrine was worked out; coordinate developments in substantive due process doctrine set limits upon the scope of Commerce Clause formulations and thus played a critical and underappreciated role in maintaining the federal equilibrium. The subsequent erosion of those due process limitations vastly …
Lost Fidelities, Barry Cushman
The Secret Lives Of The Four Horsemen, Barry Cushman
The Secret Lives Of The Four Horsemen, Barry Cushman
Barry Cushman
"Outlined against red velvet drapery on the first Monday of October, the Four Horsemen rode again. In dramatic lore they are known as Famine, Pestilence, Destruction, and Death. These are only aliases. Their real names are Van Devanter, McReynolds, Sutherland, and Butler. They formed the crest of the reactionary cyclone before which yet another progressive statute was swept over the precipice yesterday morning as a packed courtroom of spectators peered up at the bewildering panorama spread across the mahogany bench above." Or so Grantland Rice might have written, had he been a legal realist. For more than two generations scholars …
Liberty, Judicial Review, And The Rule Of Law At Guantanamo: A Battle Half Won, Doug Cassell
Liberty, Judicial Review, And The Rule Of Law At Guantanamo: A Battle Half Won, Doug Cassell
Douglass Cassel
In Boumediene v. Bush, 128 S. Ct. 2229 (2008), five members of the Supreme Court held that foreign prisoners at Guantanamo enjoy the constitutional privilege of habeas corpus; that their imprisonment had lasted too long for the Court to await completion of statutory review by lower courts of military tribunal findings that the prisoners were "enemy combatants"; and that the statutory judicial review was too deficient to substitute for the Great Writ. Four Justices vigorously dissented. On the surface they differed on the history of the reach of the common law writ of habeas corpus, and on the procedural guarantees …
Severability, John C. Nagle
Severability, John C. Nagle
John Copeland Nagle
When a court holds a provision of a statute unconstitutional, a question remains regarding the validity of the remainder of the statute. The court may find that the unconstitutional provision may be severed from the statute and leave the remainder of the statute in effect. Alternatively, the court may hold that the unconstitutional provision cannot be severed and invalidate the entire statute. This article argues that the jurisprudence surrounding the issue of severability is confusing and inconsistent. After explaining the concept of severability and its ramifications for statutes, I trace the development of the current judicial test for determining when …
The Lame Ducks Of Marbury, John C. Nagle
The Lame Ducks Of Marbury, John C. Nagle
John Copeland Nagle
The election of 1800 was one of the most contested - and important - in American history. After it became clear that neither President John Adams nor a Federalist majority in Congress had been reelected, they acted during the lame-duck period to preserve their influences far into the future. They did so by appointing John Marshall as Chief Justice, ratifying the Treaty with France, creating numerous new federal judicial positions, and filling many of those positions with friends, family, and Federalists (including William Marbury). Not surprisingly, Jefferson and his supporters protested these actions as contrary to the will of the …
Direct Democracy And Hastily Enacted Statutes, John C. Nagle
Direct Democracy And Hastily Enacted Statutes, John C. Nagle
John Copeland Nagle
No abstract provided.
A Twentieth Amendment Parable, John C. Nagle
A Twentieth Amendment Parable, John C. Nagle
John Copeland Nagle
The twentieth amendment receives virtually no attention in modern American constitutional law. Adopted in 1933, the primary purpose of the amendment was to eliminate lame-duck Congresses. The proponents of the amendment argued that lame-ducks were subject to nefarious influences and that allowing lame-duck legislation contradicted the voice of the people in the most recent election. But the text of the twentieth amendment simply moved the date on which the newly elected President and Congress took office from March to January, and does not expressly prohibit lame-duck legislation. The framers of the amendment could not conceive of Congress meeting during the …
Waiving Sovereign Immunity In An Age Of Clear Statement Rules, John C. Nagle
Waiving Sovereign Immunity In An Age Of Clear Statement Rules, John C. Nagle
John Copeland Nagle
No abstract provided.
The Constitutional Theory Of The Fourth Amendment, Gerard V. Bradley
The Constitutional Theory Of The Fourth Amendment, Gerard V. Bradley
Gerard V. Bradley
No abstract provided.
Imagining The Past And Remembering The Future: The Supreme Court's History Of The Establishment Clause, Gerard V. Bradley
Imagining The Past And Remembering The Future: The Supreme Court's History Of The Establishment Clause, Gerard V. Bradley
Gerard V. Bradley
No abstract provided.
Forum Juridicum: Church Autonomy In The Constitutional Order - The End Of Church And State?, Gerard V. Bradley
Forum Juridicum: Church Autonomy In The Constitutional Order - The End Of Church And State?, Gerard V. Bradley
Gerard V. Bradley
No abstract provided.
Beguiled: Free Exercise Exemptions And The Siren Song Of Liberalism, Gerard V. Bradley
Beguiled: Free Exercise Exemptions And The Siren Song Of Liberalism, Gerard V. Bradley
Gerard V. Bradley
No abstract provided.
The Bill Of Rights And Originalism, Gerard V. Bradley
The Bill Of Rights And Originalism, Gerard V. Bradley
Gerard V. Bradley
Professor Bradley begins the final installment of the University of Illinois Law Review's year-long tribute to the Bill of Rights by proposing that the first ten Amendments, like the Constitution itself, be interpreted according to the original understanding of their ratifiers. Professor Bradley, though, narrows the scope of the exegetical inquiry to what he proposes is the only sound originalism - plain meaning, historically recovered. Professor Bradley argues that interpreting the Bill of Rights according to the text's plain meaning among persons politically active at the time of drafting avoids both the inflexibility and philosophical deficiencies of "snapshot" conservative originalism …
The Fourth Amendment Status Of Stored E-Mail: The Law Professors' Brief In Warshak V. United States, Susan Freiwald, Patricia L. Bellia
The Fourth Amendment Status Of Stored E-Mail: The Law Professors' Brief In Warshak V. United States, Susan Freiwald, Patricia L. Bellia
Patricia L. Bellia
This paper contains the law professors' brief in the landmark case of Warshak v. United States, the first federal appellate case to recognize a reasonable expectation of privacy in electronic mail stored with an Internet Service Provider (ISP). While the 6th circuit's opinion was subsequently vacated and reheard en banc, the panel decision will remain extremely significant for its requirement that law enforcement agents must generally acquire a warrant before compelling an ISP to disclose its subscriber's stored e-mails. The law professors' brief, co-authored by Susan Freiwald (University of San Francisco) and Patricia L. Bellia (Notre Dame) and signed by …
The Law Of Nations As Constitutional Law, Anthony J. Bellia, Bradford R. Clark
The Law Of Nations As Constitutional Law, Anthony J. Bellia, Bradford R. Clark
Anthony J. Bellia
Courts and scholars continue to debate the status of customary international law in U.S. courts, but have paid insufficient attention to the role that such law plays in interpreting and upholding several specific provisions of the Constitution. The modern position argues that courts should treat customary international law as federal common law. The revisionist position contends that customary international law applies only to the extent that positive federal or state law has adopted it. Neither approach adequately takes account of the Constitution’s allocation of powers to the federal political branches in Articles I and II or the effect of these …
Federal Regulation Of State Court Procedures, Anthony J. Bellia
Federal Regulation Of State Court Procedures, Anthony J. Bellia
Anthony J. Bellia
May Congress regulate the procedures by which state courts adjudicate claims arising under state law? Recently, Congress not only has considered several bills that would do so, but has enacted a few of them. This Article concludes that such laws exceed Congress's constitutional authority. There are serious questions as to whether a regulation of court procedures qualifies as a regulation of interstate commerce under the Commerce Clause. Even assuming, however, that it does qualify as such, the Tenth Amendment reserves the power to regulate court procedures to the states. Members of the Founding generation used conflict-of-laws language to describe a …
The Origins Of Article Iii "Arising Under" Jurisdiction, Anthony J. Bellia
The Origins Of Article Iii "Arising Under" Jurisdiction, Anthony J. Bellia
Anthony J. Bellia
Article III of the Constitution provides that the judicial Power of the United States extends to all cases arising under the Constitution, laws, and treaties of the United States. What the phrase arising under imports in Article III has long confounded courts and scholars. This Article examines the historical origins of Article III arising under jurisdiction. First, it describes English legal principles that governed the jurisdiction of courts of general and limited jurisdiction--principles that animated early American jurisprudence regarding the scope of arising under jurisdiction. Second, it explains how participants in the framing and ratification of the Constitution understood arising …
Copyright And The First Amendment: Comrades, Combatants, Or Uneasy Allies?, Joseph P. Bauer
Copyright And The First Amendment: Comrades, Combatants, Or Uneasy Allies?, Joseph P. Bauer
Joseph P. Bauer
The copyright regime and the First Amendment seek to promote the same goals. Both seek the creation and dissemination of more, better, and more diverse literary, pictorial, musical and other works. But, they use significantly different means to achieve those goals. The copyright Laws afford to the creator of a work the exclusive right to reproduce, distribute, transform, and perform that work for an extended period of time. The First Amendment, on the other hand, proclaims that Congress "shall make no Law... abridging the freedom of speech or of the press, " thus at least nominally indicating that limitations on …
Table Annexed To Article: Secrecy Broken: Reports Of The Delegates Following The Federal Convention, Peter J. Aschenbrenner
Table Annexed To Article: Secrecy Broken: Reports Of The Delegates Following The Federal Convention, Peter J. Aschenbrenner
Peter J. Aschenbrenner
Despite the measures taken to ensure the secrecy of the proceedings during the federal convention, many delegates made reports to their states and explained the choices behind various clauses. However, no delegate had access to the official journal of the constitutional convention.
Table Annexed To Article: Our Constitutional Kinesis: Words That Can Go Like A Machine, Peter J. Aschenbrenner
Table Annexed To Article: Our Constitutional Kinesis: Words That Can Go Like A Machine, Peter J. Aschenbrenner
Peter J. Aschenbrenner
Constitution II, the Philadelphia constitution (1787), inspired many ‘machine/ry’ references. OCL catalogs, with the help of acknowledged secondary sources, a working list of metaphors which were deployed to credit and discredit our second constitution.
Table Annexed To Article: Congress And Parliament Deploy Appraisives (1801-1802), Peter J. Aschenbrenner
Table Annexed To Article: Congress And Parliament Deploy Appraisives (1801-1802), Peter J. Aschenbrenner
Peter J. Aschenbrenner
Parliament (primary text writer, the House of Commons) produced 24,647 words beginning in 1801; in in a comparable interval, Congress produced 27,123 words. By coincidence, this was the first year that Parliament served as the text-writer for the newly-minted United Kingdom of Great Britain and Ireland. Appraisives in the English language, numbering 3,683 have been tested against the Early Constitution. Appraisives in the Early Constitution, 2 OCL 193. This investigation tests the known class of appraisives in these target vocabularies employed by Congress and Parliament. Mean words between ‘hits’ are returned.