Digital Commons Network^™

Terry V.Ohio, Massiah V. United States, And Zurcher V. Stanford Daily, Robert Bloom

Robert Bloom

No abstract provided.

Unraveling Judicial Restraint: Guns, Abortion, And The Faux Conservatism Of J. Harvie Wilkinson, Iii, Nelson Lund, David B. Kopel

David B Kopel

Writing in the Virginia Law Review, a distinguished federal judge maintains that true conservatives are required to substitute principles of judicial restraint for an inquiry into the original meaning of the Constitution. Accordingly, argues J. Harvie Wilkinson, III, the Supreme Court's Second Amendment decision in District of Columbia v. Heller is an activist decision just like Roe v. Wade: "[B]oth cases found judicially enforceable substantive rights only ambiguously rooted in the Constitution's text." In this response, we challenge his critique.

Part I shows that Judge Wilkinson's analogy between Roe and Heller is untenable. The right of the people to keep …

Binding The Dogs Of War: Japan And The Constitutionalizing Of Jus Ad Bellum, Craig Martin

Craig Martin

There is still very little constitutional control over the decision to use armed force, and very limited domestic implementation of the international principles of jus ad bellum, notwithstanding the increasing overlap between international and domestic legal systems and the spread of constitutional democracy. The relationship between constitutional and international law constraints on the use of armed force has a long history. Aspects of constitutional theory, liberal theories of international law, and transnational process theory of international law compliance, suggest that constitutional design could legitimately be used as a pre-commitment device to lock-in jus ad bellum principles, and thereby enhance compliance …

Balancing Competing Individual Constitutional Rights: Raising Some Questions, Taunya Banks

Taunya Lovell Banks

Despite increasing support for global human rights ..., some scholars and constitutional democracies, like the United States, continue to resist constitutionalizing socio-economic rights. Socio-economic rights, unlike political and civil constitutional rights that usually prohibit government actions, are thought to impose positive obligations on government. As a result, constitutionalizing socio-economic rights raises questions about separation of powers and the competence of courts to decide traditionally legislative and executive matters. ... [W]hen transitional democracies, like South Africa, choose to constitutionalize socio-economic rights, courts inevitably must grapple with their role in the realization of those rights.... Two questions immediately come to mind: (1) …

Pole Dancing Reprise/Reprieve, Timothy Zick

Popular Media

No abstract provided.

The Emerging First Amendment Law Of Managerial Prerogative, Lawrence Rosenthal

Lawrence Rosenthal

In Garcetti v. Ceballos, the Supreme Court, by the narrowest of margins, held that allegations of police perjury made in memoranda to his superiors by Richard Ceballos, a supervisory prosecutor in the Los Angeles County District Attorney’s office, were unprotected by the First Amendment because “his expressions were made pursuant to his duties. . . .” The academic reaction to this holding has been harshly negative; scholars argue that the holding will prevent the public from learning of governmental misconduct that is known only to those working within the bowels of the government itself.

This article rejects the scholarly consensus …

A Darwinist View Of The Living Constitution, Scott Dodson

Faculty Publications

The metaphor of a “living” Constitution imports terms from biology into law and, in the process, relies on biology for its meaning. A proper understanding of biology is therefore central to understanding the idea of “living” constitutionalism. Yet despite its rampant use by both opponents and proponents of living constitutionalism, and despite the current fervent debate over whether biology can be useful to the law, no one has evaluated the metaphor from a biological perspective. This Essay begins that inquiry in an interdisciplinary study of law, science, and philology. The Essay first evaluates the metaphor as it is currently used …

Tempest In An Empty Teapot: Why The Constitution Does Not Regulate Gerrymandering, Larry Alexander, Saikrishna B. Prakash

William & Mary Law Review

Judges and scholars are convinced that the Constitution forbids gerrymandering that goes "too far"--legislative redistrictings that are too partisan, too focused on race, etc. Gerrymanders are said to be unconstitutional for many reasons-they dilute votes, they are anti-democratic, and they generate uncompetitive elections won by extremist candidates. Judges and scholars cite numerous clauses that gerrymanders supposedly violate- the Equal Protection Clause, the Guarantee Clause, and even the First Amendment. We dissent from this orthodoxy. Most of these claims rest on the notion that the Constitution establishes certain ideals about representation in legislatures and about the outcome and conduct of elections. …

Equal Sentences For Unequal Participation: Should The Eighth Amendment Allow All Juvenile Murder Accomplices To Receive Life Without Parole?, Brian Gallini

Brian Gallini

Gender And Justice: Parity And The United States Supreme Court, Paula A. Monopoli

Paula A Monopoli

There is a deep concern among many American women that only one woman remains on the United States Supreme Court. When Justice Sandra Day O’Connor was sworn in on September 25, 1981, most people never imagined that twenty-five years later there would still be only one woman on the Court. It appears that it will be many more years before there is a critical mass of women sitting on the high court. Given its central role, the Court should better represent the gender balance in American society. In a number of other countries, voluntary or involuntary parity provisions have been …

Op-Ed., Signing Statements Risk Abuse Of Power, Robert Lipkin

Robert Justin Lipkin

No abstract provided.

Pole Dancing: The New Pilates?, Timothy Zick

Popular Media

No abstract provided.

John Mccain's Citizenship: A Tentative Defense, Stephen E. Sachs

Stephen E. Sachs

Sen. John McCain was born a U.S. citizen and is eligible to be president. The most serious challenge to his status, recently posed by Prof. Gabriel Chin, contends that the statute granting citizenship to Americans born abroad did not include the Panama Canal Zone, where McCain was born in 1936. When Congress amended the law in 1937, he concludes, it was too late for McCain to be "natural born." Even assuming, however, that McCain's citizenship depended on this statute - and ignoring his claim to citizenship at common law - Chin's argument may be based on a misreading. When the …

Popular Constitutionalism, Judicial Supremacy, And The Complete Lincoln-Douglas Debates, Mark A. Graber

Mark Graber

No abstract provided.

Enumeration And Other Constitutional Strategies For Protecting Rights: The View From 1787/1791, Mark A. Graber

Mark Graber

This paper interprets the constitution of 1791 in light of the constitution of 1787. The persons responsible for the original constitution thought they had secured fundamental rights by a combination of representation, the separation of powers, and the extended republic. The Bill of Rights, in their view, was a minor supplement to the strategies previously employed for preventing abusive government practices. Proposed amendments were less a list of fundamental freedoms than an enumeration of those rights likely to appease moderate anti-Federalists. That many vaguely phrased rights lacked clear legal meaning was of little concern to their Federalist sponsors, who trusted …

False Modesty: Felix Frankfurter And The Tradition Of Judicial Restraint, Mark A. Graber

Mark Graber

Professor Jeffrey Rosen is the leading champion of judicial modesty among legal academics and public philosophers. Throughout his career, Professor Rosen has vigorously condemned justices “when they have tried to impose intensely contested visions of the Constitution on a divided nation.” This commentary on his Foulston lecture at Washburn Law School suggests that proponents of judicial restraint must avoid traps of false modesty which ensnared Justice Felix Frankfurter. The constitutional politics responsible for Poe v. Ullman and Barnette v. West Virginia State Board of Education challenge the too simple understanding of judicial unilateralism that Frankfurter advanced in his opinions in …

Foreword: Making Sense Of An Eighteenth-Century Constitution In A Twenty-First-Century World, Mark A. Graber

Mark Graber

The Maryland Constitutional Law Schmooze, "An Eighteenth-Century Constitution in a Twenty-First-Century World" explores the interpretive and political challenges inherent in recourse to an ancient text for resolving political questions. Although no Essay cites Quentin Skinner, the debates between participants in the Schmooze and this Symposium mirror the debates between Skinner and his critics. Some participants insist that crucial aspects of an eighteenth-century text remain vibrant at present, that contemporary political life would be improved by more careful study of the Constitution. Others blame crucial pathologies of American politics on a combination of too careful study of and too uncritical veneration …

Desperately Ducking Slavery: Dred Scott And Contemporary Constitutional Theory, Mark A. Graber

Mark Graber

No abstract provided.

Settling The West: The Annexation Of Texas, The Louisiana Purchase, And Bush V. Gore, Mark Graber

Mark Graber

No abstract provided.

Looking Off The Ball: Constitutional Law And American Politics, Mark A. Graber

Mark Graber

“Looking Off the Ball” details how and why constitutional law influences both judicial and public decision making. Treating justices as free to express their partisan commitments may seem to explain Bush v. Gore*, but not the judicial failure to intervene in the other numerous presidential elections in which the candidate favored by most members of the Supreme Court lost. Constitutional norms and standards generate legal agreements among persons who dispute the underlying merits of particular policies under constitutional attack. The norms and standards explain constitutional criticism, why only a small proportion of the political questions that occupy Americans are normally …

Does It Really Matter? Conservative Courts In A Conservative Era, Mark A. Graber

Mark Graber

This essay explores the likelihood that conservative federal courts in the near future will be agents of conservative social change. In particular, the paper assesses whether conservative justices on some issues will support more conservative policies than conservative elected officials are presently willing to enact and whether such judicial decisions will influence public policy. My primary conclusion is that, as long as conservatives remain politically ascendant in the elected branches of government, the Roberts Court is likely to influence American politics at the margins. The new conservative judicial majority is likely to be more libertarian than conservative majorities in the …

Naked Land Transfers And American Constitutional Development, Mark Graber

Mark Graber

The constitutional prohibition on naked land transfers, laws granting to B property that belonged to A, played a far greater role in American constitutional development than is generally realized. The Marshall and Taney Courts heard numerous cases in which government officials were accused of expropriating private property, typically by legislative oversight rather than by deliberate intent. When resolving these cases, antebellum justices relied heavily on “certain great principles of justice” rather than on specific constitutional provisions. Supreme Court majorities on several occasions probably exercised the judicial power to declare federal laws unconstitutional. More frequently, Marshall and Taney Court decisions in …

Old Wine In New Bottles: The Constitutional Status Of Unconstitutional Speech, Mark A. Graber

Mark Graber

This Article explores whether contemporary advocates of restrictions on bigoted expression have more in common with contemporary advocates of broad First Amendment rights or with past censors. The critical theorists who would ban some hate speech rely heavily on the equal citizenship principles that radical civil libertarians believe justify almost absolute speech rights. The First Amendment, past and present censors argue, does not fully protect speech inconsistent with what they believe are basic constitutional values. This claim repudiates a basic principle of American constitutionalism, the faith that "self-evident" constitutional values will triumph in the constitutional marketplace of ideas. The ideological …

Thick And Thin: Interdisciplinary Conversations On Populism, Law, Political Science, And Constitutional Change, Mark A. Graber

Mark Graber

No abstract provided.

Mistretta Versus Marbury: The Foundations Of Judicial Review, Maxwell L. Stearns

Maxwell L. Stearns

No abstract provided.

Tax Incentives For Economic Development: Personal (And Pessimistic) Reflections, Edward A. Zelinsky

Faculty Articles

No abstract provided.

Rethinking Tax Nexus And Apportionment: Voice, Exit, And The Dormant Commerce Clause, Edward A. Zelinsky

Faculty Articles

The dormant Commerce Clause concept of tax nexus is best understood as a rough, but serviceable, proxy for the taxpayer's standing in the political process. This perspective leads me to defend Quill Corporation v. North Dakota and the much maligned physical presence test for tax nexus. As a matter of legislative policy, the critics of this test may be correct. However, as a matter of constitutional law, the courts should adhere to an expanded physical presence standard as Congress crafts for the long term broader nexus rules based on economic presence. Taxation is an inherently and irreducibly political matter. An …

Standing Back From The Forest: Justiciability And Social Choice, Maxwell L. Stearns

Maxwell L. Stearns

No abstract provided.

The Remand That Made The Court Expand, Maxwell L. Stearns

Maxwell L. Stearns

No abstract provided.

How The Separation Of Powers Doctrine Shaped The Executive, Louis J. Sirico Jr.

Working Paper Series

This Article examines the debates of the Founders over the separation of powers doctrine as it relates to the executive branch. After surveying the experience in the colonies and under the post-Revolutionary state constitutions, it analyzes the relevant issues at the Constitutional Convention. Rather than focusing on abstract discussions of political theory, the article examines specific decisions and controversies in which separation of powers was a concern. The Article offers a detailed recounting of those debates. At the Convention, separation of powers arose most prominently in the arguments over nine issues: choosing the Executive, permitting the Executive to stand for …