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Researching Initiatives And Referendums: A Guide For Florida, Elizabeth Outler

UF Law Faculty Publications

In Florida, direct democracy at the state level consists entirely of the initiative method of amending the State constitution. This constitutional provision was partly a response to the State’s history of obstacles to affording equitable legislative representation to all its citizens, a struggle with roots dating back to the Reconstruction era. The State constitution, governing statutes and regulations, and the Division of Elections Web site serve as the primary sources of information and guidance for those interested in the process of amending the State constitution by citizen-sponsored initiative.

The Ninth Amendment And Individual Rights: A Reply To Professor Mcaffee, Daniel A. Farber

Nevada Law Journal

No abstract provided.

Say Cheese! Examining The Constitutionality Of Photostops, Molly Bruder

American University Law Review

No abstract provided.

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 …

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

Mark Graber

No abstract provided.

Transcript: Left Out In The Cold? The Chilling Of Speech, Association, And The Press In Post-9/11 America , American University Law Review

American University Law Review

No abstract provided.

Review: Voices Of American Law: Us Supreme Court Cases Meet The 21st Century, Lauren M. Collins

Law Faculty Articles and Essays

Review of documentary series Voices of American Law (Thomas B. Metzloff & Sarah Wood, producers)

Death Is Unconstitutional: How Capital Punishment Became Illegal In America—A Future History, Jur. Eric Engle Ph.D.

The University of New Hampshire Law Review

[Excerpt] “A constitution is an organic fact of every state: it is a part of the being of the state. People, like the state, also have a constitution—a character. Just as people change over time, so do states. But just as there are natural limits on what people can or cannot become, so there are natural limits on what the state can and cannot fairly do. No man, nor any group of men, ex ante may justly take the life of another person, though perhaps their killing may be excused (or forgiven) ex post.”

"The death of Death would surely …

Rights And Obligations Of Americans In Mexico Under Immigration Law And Other Areas Of Mexican Law, Jorge A. Vargas

University of Richmond Law Review

No abstract provided.

Judgments Of The United States Supreme Court And The South African Constitutional Court As A Basis For A Universal Method To Resolve Conflicts Between Fundamental Rights, Daniel H. Erskine

Daniel H. Erskine

This article describes the methods utilized by the United States Supreme Court to resolve specific cases involving conflicts between federal constitutional rights, a federal constitutional right and a state constitutional or statutory right, and an international treaty right and a federal constitutional right. Consideration of particular decisions representative of the manner the Court resolves conflicts between rights in the three typologies described above, illustrates how the Court views such conflicts and the rationales employed to resolve apparent conflicting rights. The rationales used by the United States Supreme Court are compared to the South African Constitutional Court’s decisions in the Soobramoney, …

Mccain’S Citizenship And Constitutional Method, Peter J. Spiro

Michigan Law Review First Impressions

Many things may obstruct John McCain’s path to the White House, but his citizenship status is not among them. The question of his eligibility, given the circumstances of his birth, has already been resolved. That outcome has been produced by actors outside the courts. . . . If non-judicial actors—including Congress, editorialists, leading members of the bar, and the People themselves—manage to generate a constitutional consensus, there isn’t much that the courts can do about it. In cases such as this one, at least, that seems to be an acceptable method of constitutional determination.

Originalism And The Natural Born Citizen Clause, Lawrence B. Solum

Michigan Law Review First Impressions

The enigmatic phrase “natural born citizen” poses a series of problems for contemporary originalism. New Originalists, like Justice Scalia, focus on the original public meaning of the constitutional text. The notion of a “natural born citizen” was likely a term of art derived from the idea of a “natural born subject” in English law—a category that most likely did not extend to persons, like Senator McCain, who were born outside sovereign territory. But the Constitution speaks of “citizens” and not “subjects,” introducing uncertainties and ambiguities that might (or might not) make McCain eligible for the presidency.

Constitutional Overview Of Post-9/11 Barriers To Free Speech And A Free Press, Nadine Strossen

Articles & Chapters

No abstract provided.

Equality In Germany And The United States, Edward J. Eberle

Law Faculty Scholarship

No abstract provided.

A Different Take On The Roberts Court: The Court As An Institution, Ideology, And The Settled Nature Of American Constitutional Law, Robert A. Sedler

Law Faculty Research Publications

No abstract provided.

Derecho Empresarial Y Constitución: Límites Constitucionales A La Libertad De Empresa Y A Su Regulación (Un Análisis De Casos), Óscar Súmar

Oscar Súmar

No abstract provided.

The Penumbral Public Domain: Constitutional Limits On Quasi-Copyright Legislation, Aaron K. Perzanowski

Aaron K. Perzanowski

This Article attempts to reconcile the breadth of the modern Commerce Clause with the notion of meaningful and enforceable limits on Congress' copyright authority under Article I, Section 8, Clause 8. The Article aims to achieve two objectives. First, it seeks to outline a general approach to identifying and resolving inter-clause conflicts, sketching a methodology that has been lacking in the courts' sparse treatment of such conflicts. Second, it applies that general framework to the copyright power in order to outline the scope of constitutional prohibitions against quasi-copyright protections. In particular, this application focuses on the federal anti-bootlegging statutes and …

Reconsidering Gobitis: An Exercise In Presidential Leadership, Robert Tsai

Articles in Law Reviews & Other Academic Journals

In June of 1940, the Supreme Court ruled 8-1 in Minersville School District v. Gobitis that the First Amendment posed no barrier to the punishment of two school age Jehovah's Witnesses who refused to pay homage to the American flag. Three years later, the Justices reversed themselves in West Virginia State Board of Education v. Barnette. This sudden change has prompted a host of explanations. Some observers have stressed changes in judicial personnel in the intervening years; others have pointed to the wax and wane of general anxieties over the war; still others have emphasized the sympathy-inspiring acts of …

From John F. Kennedy’S 1960 Campaign Speech To Christian Supremacy: Religion In Modern Presidential Politics, Stephen A. Newman

NYLS Law Review

No abstract provided.

Why Senator John Mccain Cannot Be President: Eleven Months And A Hundred Yards Short Of Citizenship, Gabriel Chin

Michigan Law Review First Impressions

Article II, section 1 of the Constitution provides that “No Person except a natural born Citizen . . . shall be eligible to the Office of President . . . .” A person must be a citizen at birth to be a natural born citizen. Senator McCain was born in the Canal Zone in 1936. Although he is now a U.S. citizen, the law in effect in 1936 did not grant him citizenship at birth. Because he was not born a citizen, he is not eligible to the office of president.

Constitutional Possibilities, Lawrence B. Solum

Indiana Law Journal

No abstract provided.

Judicial Compensation And The Definition Of Judicial Power In The Early Republic, James E. Pfander

Michigan Law Review

Article III's provision for the compensation of federal judges has been much celebrated for the no-diminution provision that forecloses judicial pay cuts. But other features of Article Ill's compensation provision have largely escaped notice. In particular, little attention has been paid to the framers' apparent expectation that Congress would compensate federal judges with salaries alone, payable from the treasury at stated times. Article III's presumption in favor of salary-based compensation may rule out fee-based compensation, which was a common form of judicial compensation in England and the colonies but had grown controversial by the time of the framing. Among other …

Solving The Parents Involved Paradox, Lino A. Graglia

Seattle University Law Review

The Supreme Court's decision in Parents Involved in Community Schools v. Seattle School District No. 1 (Parents Involved) presents the seeming paradox that the Constitution can on one day require a school district to take drastic measures, including busing students across a giant school district to increase racial integration in schools, and then prohibit school districts from taking even the mildest measures, such as using race as a tie-breaker in making student assignments, on the next. How, a rational observer must wonder, can this be possible? The answer is that, as usual in the making of “constitutional law,” the Constitution …

Lower Courts And Constitutional Comparativism, Roger P. Alford

Journal Articles

The issue of constitutional comparativism has been a topic of significant commentary in recent years. However, there is one aspect of this subject that has been almost completely ignored by scholars: the reception, or lack thereof, of constitutional comparativism by state and lower federal courts. While the Supreme Court's enthusiasm for constitutional comparativism has waxed and now waned, lower state and federal courts have remained resolutely agnostic about this new movement. This is of tremendous practical significance because over ninety-nine percent of all cases are resolved by lower state and federal courts. Accordingly, if the lower courts eschew constitutional comparativism, …

Constitution Day, 2008, Robert Berry

Librarian Publications

Robert Berry, the research librarian for the social sciences at the Sacred Heart University Library, has written an essay about the United States Constitution and the freedom of speech and expression. The essay was written for the occasion of Constitution Day 2008 at Sacred Heart University.

Overcoming Lochner In The Twenty-First Century: Taking Both Rights And Popular Sovereignty Seriously As We Seek To Secure Equal Citizenship And Promote The Public Good, Thomas B. Mcaffee

University of Richmond Law Review

Professor McAffee reviews substantive due process as the textual basis for modern fundamental rights constitutional decision-making. He contends that we should avoid both the undue literalism that rejects the idea of implied rights, as well as the attempt to substitute someone's preferred moral vision for the limits, and compromises, that are implicit in and intended by the Constitution's text. He argues, moreover, that we can largely harmonizethe variousgoals of our constitutionalsystem by taking rights se- riously and by understanding that securing rights does not ex-haustthe Constitution'spurposes.

Judicial Decision-Making, Social Science Evidence, And Equal Educational Opportunity: Uneasy Relations And Uncertain Futures, Michael Heise

Seattle University Law Review

The full extent of what the Court decided in Grutter and Parents Involved remains in some dispute. What is far more certain is that both cases continue to stir deeply held passions that help frame public and legal debates about the Court and its role in affirmative action and school desegregation disputes. Amid these increasingly raucous debates, this Article expressly side steps the many questions (and controversies) about what the Court decided in those cases and seeks to escape from the frequently politically charged and volatile context of governmental uses of race. This Article instead focuses on how the Court …

On Federalism, Freedom, And The Founders' View Of Retained Rights - A Reply To Randy Barnett, Kurt T. Lash

Law Faculty Publications

In A Textual-Historical Theory of the Ninth Amendment, 60 Stanford Law Review, I explain how some of the most common theories of the Ninth Amendment either have nothing to do with the actual text of the Amendment or place the text in conflict with similar terms in the Tenth Amendment. Focusing on the actual words of the Amendment, I argue that the text of the Ninth point towards a federalist rule of construction in which the people's retained rights are necessarily left to the control of the collective people in the several states. I also explain how this reading fits …

Overcoming Lochner In The Twenty-First Century: Taking Both Rights And Popular Sovereignty Seriously As We Seek To Secure Equal Citizenship And Promote The Public Good, Thomas B. Mcaffee

Scholarly Works

Professor McAffee reviews substantive due process as the textual basis for modern fundamental rights constitutional decision-making. He contends that we should avoid both the undue literalism that rejects the idea of implied rights, as well as the attempt to substitute someone’s preferred moral vision for the limits, and compromises, that are implicit in—and intended by—the Constitution’s text. He argues, moreover, that we can largely harmonize the various goals of our constitutional system by taking rights seriously and understanding that securing rights does not exhaust the Constitution’s purpose.

Civil War In The U.S. Foreign Relations Law: A Dress Rehearsal For Modern Transformations, The The Use And Misuse Of History In U.S. Foreign Relations Law, Thomas H. Lee

Faculty Scholarship

The first of the four U.S. foreign relations law insights of the Prize Cases that this Article will discuss is the notion that international law provides a basis for the President's exercise of military force in a manner neither specifically enumerated in the Constitution nor preauthorized by congressional enactments. The specific military action was the proclamation of a naval blockade that applied not only to active Confederate belligerents but also to loyal U.S. citizens residing in seceding or soon-to-secede states and to foreign neutral citizens. The second insight is the notion that federal constitutional law protections for U.S. citizens, such …