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Democracy's Handmaid, Robert Tsai
Democracy's Handmaid, Robert Tsai
Robert L. Tsai
Democratic theory presupposes open channels of dialogue, but focuses almost exclusively on matters of institutional design writ large. The philosophy of language explicates linguistic infrastructure, but often avoids exploring the political significance of its findings. In this Article, Tsai draws from the two disciplines to reach new insights about the democracy enhancing qualities of popular constitutional language. Employing examples from the founding era, the struggle for black civil rights, the religious awakening of the last two decades, and the search for gay equality, he presents a model of constitutional dialogue that emphasizes common modalities and mobilized vernacular. According to this …
Constitutional Borrowing, Robert Tsai
Constitutional Borrowing, Robert Tsai
Robert L. Tsai
Borrowing from one domain to promote ideas in another domain is a staple of constitutional decisionmaking. Precedents, arguments, concepts, tropes, and heuristics all can be carried across doctrinal boundaries for purposes of persuasion. Yet the practice itself remains underanalyzed. This Article seeks to bring greater theoretical attention to the matter. It defines what constitutional borrowing is and what it is not, presents a typology that describes its common forms, undertakes a principled defense of borrowing, and identifies some of the risks involved. The authors' examples draw particular attention to places where legal mechanisms and ideas migrate between fields of law …
John Brown's Constitution, Robert Tsai
John Brown's Constitution, Robert Tsai
Robert L. Tsai
It will surprise many Americans to learn that before John Brown and his men briefly captured Harper’s Ferry, they authored and ratified a Provisional Constitution. This deliberative act built upon the achievements of the group to establish a Free Kansas, during which time Brown penned an analogue to the Declaration of Independence. These acts of writing, coupled with Brown’s trial tactics after his arrest, cast doubts on claims that the man was a lunatic or on a suicide mission. Instead, they suggest that John Brown aimed to be a radical statesman, one who turned to extreme tactics but nevertheless remained …
Belling The Partisan Cats: Preliminary Thoughts On Identifying And Mending A Dysfunctional Constitutional Order, Mark Graber
Belling The Partisan Cats: Preliminary Thoughts On Identifying And Mending A Dysfunctional Constitutional Order, Mark Graber
Mark Graber
This paper sharpens debates over whether the Constitution of the United States and the American constitutional order are presently dysfunctional, the nature of any dysfunctions, and how underlying regime flaws are likely to be corrected. Rather than focusing primarily on constitutional text, this Article explores the dynamic ways in which constitutional processes have influenced and been influenced by the structure of constitutional politics. Constitutional dysfunction is best conceptualized as the failure of a constitutional order rather than as a consequence of a flawed constitutional text, and dysfunction typically occurs when a regime is unable to transition from a dysfunctional constitutional …
Board Meeting Prayer Bound For Supreme Court In Church-State Case, Richard Garnett
Board Meeting Prayer Bound For Supreme Court In Church-State Case, Richard Garnett
Richard W Garnett
ABC News quoted Rick Garnett in the article by Ariane de Vogue. Richard Garnett, an expert on church-state issues at the Notre Dame Law School says, “At the heart of this new case is whether the court should stick with a relatively bright-line rule that treats legislative prayers as presumptively permissible, given their long use in our country, or whether the court should move to more of an all-things-considered inquiry that treats such prayers like Christmas displays and the like.”
The Davis Good Faith Rule And Getting Answers To The Questions Jones Left Open, Susan Freiwald
The Davis Good Faith Rule And Getting Answers To The Questions Jones Left Open, Susan Freiwald
Susan Freiwald
The Supreme Court’s decision in United States v. Jones clearly established that use of GPS tracking surveillance constitutes a search under the Fourth Amendment. But the Court left many other questions unanswered about the nature and scope of the constitutional privacy right in location data. A review of lower court decisions in the wake of Jones reveals that, rather than begin to answer the questions that Jones left open, courts are largely avoiding substantive Fourth Amendment analysis of location data privacy. Instead, they are finding that officers who engaged in GPS tracking and related surveillance operated in good faith, based …
Litigating Religion, Michael A. Helfand
Litigating Religion, Michael A. Helfand
Michael A Helfand
This article considers how parties should resolve disputes that turn on religious doctrine and practice – that is, how people should litigate religion. Under current constitutional doctrine, litigating religion is generally the task of two types of religious institutions: first, religious arbitration tribunals, whose decisions are protected by arbitration doctrine, and religious courts, whose decision are protected by the religion clauses. Such institutions have been thrust into playing this role largely because the religion clauses are currently understood to prohibit courts from resolving religious questions – that is, the “religious question” doctrine is currently understood to prohibit courts from litigating …
Women And Law: A Comparative Analysis Of The United States And Indian Supreme Courts’ Equality Jurisprudence, Eileen Kaufman
Women And Law: A Comparative Analysis Of The United States And Indian Supreme Courts’ Equality Jurisprudence, Eileen Kaufman
Eileen Kaufman
No abstract provided.
Rethinking Immigration Detention, Anil Kalhan
Rethinking Immigration Detention, Anil Kalhan
Anil Kalhan
In recent years, scholars have drawn attention to the myriad ways in which the lines between criminal enforcement and immigration control have blurred in law and public discourse. This essay analyzes this convergence in the context of immigration detention. For decades, courts and observers have documented and analyzed a wide range of detention-related concerns, including mandatory and presumed custody, coercion and other due process violations, inadequate access to counsel, prolonged and indefinite custody, inadequate conditions of confinement, and violations of international law obligations. With the number of detainees skyrocketing since the 1990s, these concerns have rapidly proliferated - to the …
Constitutional Protection Of Freedom Of Expression In The United States As It Affects Defamation Law, Oscar Gray
Constitutional Protection Of Freedom Of Expression In The United States As It Affects Defamation Law, Oscar Gray
Oscar S. Gray
No abstract provided.
Immigrant Workers And The Thirteenth Amendment, Maria Ontiveros
Immigrant Workers And The Thirteenth Amendment, Maria Ontiveros
Maria L. Ontiveros
This chapter examines the treatment of immigrant workers through the lens of the Thirteenth Amendment. It examines how the intersection of labor and immigration laws impact immigrant workers in general, "guest workers" and undocumented immigrants. It argues that immigrant workers can be seen as a caste of nonwhite workers laboring beneath the floor for free labor in ways which violate the Thirteenth Amendment. Further, it suggests ways in which immigrant workers can use the Thirteenth Amendment to improve their situation and offers an analysis of how the Thirteenth Amendment can form a bridge for organizing between labor, civil rights, immigration …
The Thirteenth Amendment And Access To Education For Children Of Undocumented Workers: A New Look At Plyler V. Doe, Maria Ontiveros, Joshua Drexler
The Thirteenth Amendment And Access To Education For Children Of Undocumented Workers: A New Look At Plyler V. Doe, Maria Ontiveros, Joshua Drexler
Maria L. Ontiveros
This paper examines the extent to which the Thirteenth Amendment can be used to guarantee access to public education for the children of undocumented workers. It offers a reimagined version of Plyer, written using the Thirteenth Amendment, instead of the Fourteenth Amendment. After offering a brief summary of Thirteenth Amendment jurisprudence, it offers a variety of theoretical frameworks for analyzing the denial of education under the U.S. Constitution. It argues that the Thirteenth Amendment can provide a powerful tool for litigation, moral persuasion, organizing and legislation in the area.
Finding Shared Values In A Diverse Society: Lessons From The Intelligent Design Controversy, Alan E. Garfield
Finding Shared Values In A Diverse Society: Lessons From The Intelligent Design Controversy, Alan E. Garfield
Alan E Garfield
One of the nation’s more profound and volatile ideological divides is between fundamentalist religious adherents and secular members of society. This divide has been particularly salient in recent years as issues challenging traditional religious morality – abortion, gay marriage, and stem-cell research – have been exploited as wedge issues for political gain. In this Article, I join the efforts of other scholars to find a way to bridge the gap between religious and secular Americans. By focusing on one particularly contentious front in the religious-secular wars – the teaching of intelligent design – I am able to identify a value …
What Should We Celebrate On Constitution Day?, Alan Garfield
What Should We Celebrate On Constitution Day?, Alan Garfield
Alan E Garfield
Congress recently created a new national observance, Constitution Day, to be marked each year on September 17th. This observance presents a valuable opportunity for the vastly diverse American populace to celebrate its shared values. But what, exactly, should Americans celebrate about the Constitution? The Constitution’s text is hardly perfect, and judicial interpretations of the Constitution are themselves problematic. To identify what Americans should celebrate on Constitution Day, this article sets out to identify the Constitution’s core meaning for Americans. To do so, it first draws lessons from two contemporary Establishment Clause disputes (one over the teaching of intelligent design and …