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Constitutional Law

Constitution

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Love V. Virginia: The Constitutionality Of The Marshall/Newman Amendment, Pavitra Mohan Ram Feb 2007

Love V. Virginia: The Constitutionality Of The Marshall/Newman Amendment, Pavitra Mohan Ram

ExpressO

My comment explores the constitutionality of a recent amendment in Virginia, the Marshall/Newman Amendment, which bans gay marriage and civil unions between unmarried people, and precludes Virginia from recognizing such arrangements formed in other states. The analysis is particularly timely, because even though the Democrats have regained a majority in Congress, and a traditionally Republican Virginian constituency just elected a Democratic senator, a majority of Virginians adopted this Amendment, indicating conservative values still reign.

The comment argues that the Amendment is demonstrably inconsistent with the mandates of the Fourteenth Amendment of the Federal Constitution. The first provision seeks to ...


A Complete Property Right Amendment, John H. Ryskamp Oct 2006

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.


Every Law Maintains An Important Fact: The Supreme Doctrine Of The New Fourth Constitutional Epoch, John H. Ryskamp Sep 2006

Every Law Maintains An Important Fact: The Supreme Doctrine Of The New Fourth Constitutional Epoch, John H. Ryskamp

ExpressO

Every law maintains an important fact: out of the political welter this doctrine has emerged as the supreme doctrine of the new fourth Constitutional epoch. It is widely understood that the scrutiny regime instituted by West Coast Hotel v. Parrish, is but one of three which have determined applications of the Constitution since its ratification. However, what is less widely known is that three recent cases illustrate how the third epoch has ended and the concerns of the new epoch. Currently the cases are litigated in terms of the meaning of, every, maintain and important.


Conducting The Constitution: Justice Scalia, Textualism, And The Eroica Symphony, Ian Gallacher Aug 2006

Conducting The Constitution: Justice Scalia, Textualism, And The Eroica Symphony, Ian Gallacher

ExpressO

This article examines the three principle Constitutional interpretative approaches and compares them to similar interpretative doctrines used by musicians. In particular, it examines the theoretical underpinnings of Justice Scalia’s “textualist” philosophy by trying to predict what results would obtain from application of that philosophy to a performance of the first movement of Beethoven’s “Eroica” symphony.

The article does not declare the foundation of a new genre of legal hermeneutics, nor does it seek to announce a comprehensive interpretative framework that can solve problems of Constitutional or statutory interpretation. Rather, the article explores some fundamental principles of legal textual ...


Zoning And Eminent Domain Under The New Minimum Scrutiny, John H. Ryskamp May 2006

Zoning And Eminent Domain Under The New Minimum Scrutiny, John H. Ryskamp

ExpressO

Recently the Supreme Court has made it clearer that minimum scrutiny is a factual analysis. Whether in any government action there is a rational relation to a legitimate interest is a matter of determining whether there is a policy maintaining important facts. This has come about in the Court’s emerging emphasis on developing fact-based criteria for determining government purpose. Thus, those who want to affect zoning and eminent domain outcomes should look to what the Court sees as important facts, and whether government action is maintaining those facts with its proposed land use or eminent domain action.


Lawrence V. Texas Overrules San Antonio School District. V. Rodriguez, John H. Ryskamp May 2006

Lawrence V. Texas Overrules San Antonio School District. V. Rodriguez, John H. Ryskamp

ExpressO

San Antonio School District v. Rodriguez used the scrutiny regime to decide whether there was an Equal Protection right to housing. However, Lawrence v. Texas abolished the scrutiny regime. So how do we evaluate whether there is an education right under Equal Protection? The right to education in the Texas Constitution shows us that we use the liberty Equal Protection right to determine if state laws are essential to education; this is the meaning of Lawrence's rule that laws are not permitted respecting liberty which do not "substantially further a legitimate state interest." Note that this takes substantially from ...


Finding New Constitutional Rights Through The Supreme Court’S Evolving “Government Purpose” Test Under Minimum Scrutiny, John H. Ryskamp May 2006

Finding New Constitutional Rights Through The Supreme Court’S Evolving “Government Purpose” Test Under Minimum Scrutiny, John H. Ryskamp

ExpressO

By now we all are familiar with the litany of cases which refused to find elevated scrutiny for so-called “affirmative” or “social” rights such as education, welfare or housing: Lindsey v. Normet, San Antonio School District v. Rodriguez, Dandridge v. Williams, DeShaney v. Winnebago County. There didn’t seem to be anything in minimum scrutiny which could protect such facts as education or housing, from government action. However, unobtrusively and over the years, the Supreme Court has clarified and articulated one aspect of minimum scrutiny which holds promise for vindicating facts. You will recall that under minimum scrutiny government’s ...


Using Capture Theory And Chronology In Eminent Domain Proceedings, John H. Ryskamp May 2006

Using Capture Theory And Chronology In Eminent Domain Proceedings, John H. Ryskamp

ExpressO

Capture theory--in which private purpose is substituted for government purpose--sheds light on a technique which is coming into greater use post-Kelo v. New London. That case affirmed that eminent domain use need only be rationally related to a legitimate government purpose. Capture theory focuses litigators' attention on "government purpose." That is a question of fact for the trier of fact. This article shows how to use civil discovery in order to show the Court that private purpose has been substituted for government purpose. If it has, the eminent domain use fails, because the use does not meet minimum scrutiny. This ...


Finding The Constitutional Right To Education In San Antonio School District V. Rodriguez, John H. Ryskamp Apr 2006

Finding The Constitutional Right To Education In San Antonio School District V. Rodriguez, John H. Ryskamp

ExpressO

In Lawrence v. Texas, the Supreme Court abolished the scrutiny regime because it impermissibly interfered with an important fact, liberty. And yet, even in earlier cases which ostensibly upheld the scrutiny regime, it is difficult to see that the Court ever did so to the detriment of facts it considered important. In short, the Court often (always?) found itself raising the level of scrutiny for a fact in the same case it upheld the regime, leaving us to wonder if the scrutiny regime ever actually had any effect at all, or even whether the Court felt it was relevant. As ...


The New Constitutional Right To Maintenance In The United States, John H. Ryskamp Apr 2006

The New Constitutional Right To Maintenance In The United States, John H. Ryskamp

ExpressO

The 2003, United States Supreme Court case of Lawrence v. Texas is not a maintenance case. It abolished laws against sodomy. In doing so, however, it overruled the case which prevented a right to maintenance in the United States. In the 1937 case of West Coast Hotel v. Parrish, the Supreme Court, although sustaining a minimum wage law, nevertheless did so on the sole basis of demoting liberty (supposed by the Court to forbid minimum wage laws) to an unenforceable interest. The notion of an unenforceable interest was part of the scrutiny regime established in West Coast Hotel. The regime ...


Did You Happen To Notice That Lawrence V. Texas Overruled West Coast Hotel V. Parrish?, John H. Ryskamp Apr 2006

Did You Happen To Notice That Lawrence V. Texas Overruled West Coast Hotel V. Parrish?, John H. Ryskamp

ExpressO

The article points out, for the first time, the way in which Lawrence v. Texas overruled West Coast Hotel v. Parrish. Lawrence's overruling of West Coast is the first step in the demise of the "minimum scrutiny" regime, which the Court established in West Coast in 1937.


Discarded Deference: Judicial Independence In Informal Agency Guidance, Christopher M. Pietruszkiewicz Apr 2006

Discarded Deference: Judicial Independence In Informal Agency Guidance, Christopher M. Pietruszkiewicz

ExpressO

In the past few years, the Supreme Court has resurrected an intermediate deference standard from the 1940s to be applied by courts in considering informal guidance issued by administrative agencies. The decision upon which the deference standard is based is a product of a political solution and not a comprehensive evaluation of how the New Deal agencies fit within traditional role of the courts as sole interpreters of the law.

This 1940s decision has evolved such that deference to the views of administrative agencies has become a matter of judicial discretion, finding deference when the views of an agency parallel ...


When Worlds Collide: Federal Construction Of State Institutional Competence, Marcia L. Mccormick Mar 2006

When Worlds Collide: Federal Construction Of State Institutional Competence, Marcia L. Mccormick

ExpressO

The federal courts routinely encounter issues of state law. Often a state court will have already analyzed the law at issue, either in a separate case or in the very situation before the federal court. In every one of those cases, the federal courts must decide whether to defer to the state court analysis and, if so, how much. The federal courts will often defer, but many times have not done so, and they rarely explain the reasons for the departures they make. While this lack of transparency gives the federal courts the greatest amount of discretion and power, it ...


The Ninth Amendment: It Means What It Says, Randy E. Barnett Feb 2006

The Ninth Amendment: It Means What It Says, Randy E. Barnett

ExpressO

Although the Ninth Amendment appears on its face to protect unenumerated individual rights of the same sort as those that were enumerated in the Bill of Rights, courts and scholars have long deprived it of any relevance to constitutional adjudication. With the growing interest in originalist methods of interpretation since the 1980s, however, this situation has changed. In the past twenty years, five originalist models of the Ninth Amendment have been propounded by scholars: The state law rights model, the residual rights model, the individual natural rights model, the collective rights model, and the federalism model. This article examines thirteen ...


Constitutional Law—State Employees Have Private Cause Of Action Against Employers Under Family And Medical Leave Act—Nevada Department Of Human Resources V. Hibbs, 538 U.S. 721 (2003)., Gabriel H. Teninbaum Dec 2004

Constitutional Law—State Employees Have Private Cause Of Action Against Employers Under Family And Medical Leave Act—Nevada Department Of Human Resources V. Hibbs, 538 U.S. 721 (2003)., Gabriel H. Teninbaum

ExpressO

The Eleventh Amendment of the United States Constitution provides that non-consenting states are not subject to suit in federal court. Congress may, however, abrogate the states’ sovereign immunity by enacting legislation to enforce the provisions of the Fourteenth Amendment. In Nevada Department of Human Resources v. Hibbs, the Supreme Court of the United States considered whether Congress acted within its constitutional authority by abrogating sovereign immunity under the Family and Medical Leave Act (FMLA), which allows private causes of action against state employers to enforce the FMLA’s family-leave provision. The Court held abrogation was proper under the FMLA and ...


Thinking Outside The Pandora's Box: Why The Dmca Is Unconstitutional Under Article I §8 Of The U.S. Constitution, Joshua L. Schwartz Nov 2004

Thinking Outside The Pandora's Box: Why The Dmca Is Unconstitutional Under Article I §8 Of The U.S. Constitution, Joshua L. Schwartz

ExpressO

No abstract provided.


The Aretaic Turn In Constitutional Theory, Lawrence B. Solum Mar 2004

The Aretaic Turn In Constitutional Theory, Lawrence B. Solum

ExpressO

“The Aretaic Turn in Constitutional Theory” argues that an institutional approach to theories of constitutional interpretation ought to be supplemented by explicit focus on the virtues and vices of constitutional adjudicators.

Part I, “The Most Dysfunctional Branch,” advances the speculative hypothesis that politicization of the judiciary has led the political branches to exclude consideration of virtue from the nomination and confirmation of Supreme Court Justices and to select Justices on the basis of the strength of their commitment to particular positions on particular issues and the fervor of their ideological passions.

Part II, “Institutionalism and Constitutional Interpretation,” engages Cass Sunstein ...


Canadian Fundamental Justice And American Due Process: Two Models For A Guarantee Of Basic Adjudicative Fairness, David M. Siegel Sep 2003

Canadian Fundamental Justice And American Due Process: Two Models For A Guarantee Of Basic Adjudicative Fairness, David M. Siegel

ExpressO

This paper traces how the Supreme Courts of Canada and the United States have each used the basic guarantee of adjudicative fairness in their respective constitutions to effect revolutions in their countries’ criminal justice systems, through two different jurisprudential models for this development. It identifies a relationship between two core constitutional structures, the basic guarantee and enumerated rights, and shows how this relationship can affect the degree to which entrenched constitutional rights actually protect individuals. It explains that the different models for the relationship between the basic guarantee and enumerated rights adopted in Canada and the United States, an “expansive ...