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The Misconceived Assumption About Constitutional Assumptions, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Both originalists and nonoriginalists alike often assume that background assumptions widely held when the Constitution or its amendments were enacted are part of the original meaning of the text. Originalists sometimes appeal to these background assumptions to render the meaning of more abstract words or phrases more determinate; nonoriginalist point to odious or outmoded assumptions as proof that original meaning is objectionable and should be rejected.

In this paper, the author examines the proper role of background assumptions in constitutional interpretation when ascertaining the meaning of the terms, and in constitutional construction when applying this meaning to particular cases and …

Does Free Exercise Of Religion Deserve Constitutional Mention?, John M. Finnis

Journal Articles

The article discusses the inclusion of the free exercise of religion among a society's constitutional guarantees in the U.S. It cites Christopher Eisgruber and Lawrence Sager, authors of the book "Religious Freedom and the Constitution," who hold that religion does not deserve constitutional mention on account of any special value. It disputes this view and states that religion does deserve constitutional mention and that the constitution should protect a citizen's right to practice his or her religion.

Rights, Remedies And Facial Challenges, Maya Manian

Articles in Law Reviews & Other Academic Journals

In a few short years, the Roberts Court has managed to severely restrict the use of facial challenges across substantive areas of constitutional law. Caitlin Borgmann's article, Holding Legislatures Constitutionally Accountable Through Facial Challenges, provides a compelling analysis of the vexing distinction between as applied and facial challenges in constitutional litigation and the impact that limiting facial challenges has on constitutional rights. Borgmann argues that facial challenges are necessary to keep legislatures in check, particularly when legislatures "deliberately or recklessly infringe individual rights" of those who lack political power. Facial challenges are needed in this context not only to protect …

Of Inkblots And Omnisignificance: Conceptualizing Secondary And Symbolic Functions Of The Ninth Amendment, In A Comparative Hermeneutic Framework, Samuel J. Levine

Scholarly Works

In this Essay, Levine focuses on a particular hermeneutic approach common to the interpretation of the Torah and the United States Constitution: a presumption against superfluity. This presumption accords to the text a considerable degree of omnisignificance, requiring that interpreters pay careful attention to every textual phrase and nuance in an effort to find its legal meaning and implications. In light of this presumption, it might be expected that normative interpretation of both the Torah and the Constitution would preclude a methodology that allows sections of the text to remain bereft of concrete legal application. In fact, however, both the …

Preemption And Theories Of Federalism, Robert R. M. Verchick, Nina A. Mendelson

Book Chapters

American government is an experiment in redundancy, with powers and duties shared among federal, state, and local decision makers. The arrange­ment is designed to divide power, maximize self-rule, and foster innovation, but it also can breed confusion. In the areas of public safety and environ­mental protection, state and federal leaders (to name the two most active players in these disputes) are often seen jockeying for the inside track, hoping to secure the resources or authority needed to promote their views of the public good or gain politically. To outside observers, the best outcomes are not obvious. For example, should the …

Constitution And The Laws Of War During The Civil War, The Federal Courts, Practice & Procedure, Andrew Kent

Faculty Scholarship

This Article uncovers the forgotten complex of relationships between the U.S. Constitution, citizenship and the laws of war. The Supreme Court today believes that both noncitizens and citizens who are military enemies in a congressionally-authorized war are entitled to judicially-enforceable rights under the Constitution. The older view was that the U.S. government’s military actions against noncitizen enemies were not limited by the Constitution, but only by the international laws of war. On the other hand, in the antebellum period, the prevailing view was U.S. citizenship should carry with it protection from ever being treated as a military enemy under the …