Digital Commons Network^™

Restoring The Right Constitution?, Eduardo M. Peñalver

Cornell Law Faculty Publications

After years of relative neglect, the past few decades have witnessed a dramatic renewal of interest in the natural law tradition within philosophical circles. This natural law renaissance, however, has yet to bear much fruit within American constitutional discourse, especially among commentators on the left. In light of its low profile within contemporary constitutional debates, an effort to formulate a natural law constitutionalism is almost by definition an event worthy of sustained attention. In "Restoring the Lost Constitution," Randy Barnett draws heavily upon a natural law theory of constitutional legitimacy to argue in favor of a radically libertarian reading of …

Economic Emergency And The Rule Of Law, Bernadette A. Meyler

Cornell Law Faculty Publications

Academic work extolling the merits of the "rule of law" both domestically and internationally abounds today, yet the meanings of the phrase itself seem to proliferate. Two of the most prominent contexts in which rule of law rhetoric appears are those of economic development and states of emergency. In the area of private law, dissemination of the rule of law across the globe and, in particular, among emerging market countries is often deemed a prerequisite for enhancing economic development, partly because it ensures that foreign investments will not be summarily expropriated and that contractual rights will not be frustrated by …

Original Intent In The First Congress, Louis J. Sirico Jr.

Working Paper Series

Most of the literature on this country’s Founding Era concludes that at least in the very early years, the Founders did not look to original intent to construe the Constitution. However, this study looks not at what the Founders said they believed, but how they acted. In the First Federal Congress, the members did use arguments based on original intent. This study identifies their originalist arguments and categorizes them into five rhetorical categories. It concludes that these arguments did not dominate the debates, but were one type of argument among many.

U.S. Supreme Court Justice Thomas Makes Third Visit To Georgia Law Since 2003, Office Of Communications And Public Relations

Other Lectures and Presentations

In October 2006, U.S. Supreme Court Justice Clarence Thomas spent three days at Georgia Law, where he lectured in constitutional law and education law classes, met with various student groups, held a question and answer session with the student body and mingled with alumni at a tailgate prior to the Mississippi State football game, which he attended as a guest of UGA President Michael F. Adams. Justice Clarence Thomas spoke at a lunch with members of the Davenport-Benham Black Law Students Association.

Constitutional Avoidance In The Executive Branch, Trevor W. Morrison

Cornell Law Faculty Publications

When executive actors interpret statutes, the prevailing assumption is that they can and should use the tools that courts use. Is that assumption sound? This Article takes up the question by considering a rule frequently invoked by the courts - the canon of constitutional avoidance.

Executive branch actors regularly use the avoidance canon. Indeed, some of the most hotly debated episodes of executive branch statutory interpretation in recent years - including the initial torture memorandum issued by the Justice Department's Office of Legal Counsel, the President's signing statement regarding the McCain Amendment's ban on the mistreatment of detainees, and the …

The Story Of Me: The Underprotection Of Autobiographical Speech, Sonja R. West

Scholarly Works

This Article begins the debate over the constitutional underprotection of autobiographical speech. While receiving significant historical, scientific, religious, and philosophical respect for centuries, the timehonored practice of talking about yourself has been ignored by legal scholars. A consequence of this oversight is that current free speech principles protect the autobiographies of the powerful but leave the stories of “ordinary” people vulnerable to challenge. Shifting attitudes about privacy combined with advanced technologies, meanwhile, have led to more people than ever before having both the desire and the means to tell their stories to a widespread audience. This Article argues that truthful …

The Three Faces Of Equality: Constitutional Requirements In Taxation, William Barker

Faculty Scholarly Works

No abstract provided.

The Pragmatic Populism Of Justice Stevens' Free Speech Jurisprudence, Gregory P. Magarian

Working Paper Series

In his three decades on the Supreme Court, Justice John Paul Stevens has developed a distinctive approach to the First Amendment. During his tenure, the Court’s majority has crystallized a theory of First Amendment speech protection as an abstract, negative protection of individual autonomy against government interference. In contrast, Justice Stevens’ pragmatic judicial methodology has caused him to place greater emphasis on free speech decisions’ practical consequences, particularly their effectiveness in making democratic debate inclusive as to both participants and subject matter in order to ensure robust, well-informed public discourse. Alone on the present Court, Justice Stevens manifests a deep …

Towards A Common Law Originalism, Bernadette A. Meyler

Cornell Law Faculty Publications

Originalists' emphasis upon William Blackstone's "Commentaries on the Laws of England" tends to suggest that the common law of the Founding era consisted in a set of determinate rules that can be mined for the purposes of constitutional interpretation. This Article argues instead that disparate strands of the common law, some emanating from the colonies and others from England, some more archaic and others more innovative, co-existed at the time of the Founding. Furthermore, jurists and politicians of the Founding generation were not unaware that the common law constituted a disunified field; indeed, the jurisprudence of the common law suggested …

Tom Delay: Popular Constitutionalist?, Neal Devins

Faculty Publications

No abstract provided.

The Roberts Court: Year 1, Lori A. Ringhand

Scholarly Works

This paper is an empirical analysis of the Supreme Court's recently-ended 2005 term, including an examination of the issues raised by, and the ideological direction of, the decisions issued by the Court. In addition to reviewing the work of the Court as a whole, the paper also separately examines the jurisprudence of new Justices Roberts and Alito. In doing so, it raises the possibility that these justices may have more in common with each other than with the Court's more established conservative members. The paper also demonstrates that the Court, pursuant to one of Justice Roberts' frequently stated goals, was …

Religious Group Autonomy: Further Reflections About What Is At Stake, Kathleen A. Brady

Working Paper Series

This article addresses the protections afforded by the First Amendment when government regulation interferes with the internal activities or affairs of religious groups. In previous pieces, I have argued that the First Amendment should be construed to provide religious groups a broad right of autonomy over all aspects of internal group operations, those that are clearly religious in nature as well as activities that seem essentially secular. In my view, such autonomy is necessary to preserve the ability of religious groups to generate, live out and communicate their own visions for social life, including ideas that can push the norms …

Executive Aggrandizement In Foreign Affairs Lawmaking, Michael P. Van Alstine

Faculty Scholarship

This article analyzes the power of the President to create federal law on the foundation of the executive’s status as the constitutional representative of the United States in foreign affairs. Executive branch advocates have claimed such a power throughout constitutional history. Recent events also have revived this constitutional controversy with particular vigor. In specific, President Bush recently issued a surprise “Determination” which asserted that the implied executive powers of Article II of the Constitution permit the President to enforce in domestic law the obligations owed to foreign states under international law.

The article first sets the legal and factual context …

You’Re So Vain, I’Ll Bet You Think This Song Is About You, Joseph W. Dellapenna

Working Paper Series

Dispelling the Myths of Abortion History covers over 1,000 years of abortion history in England and America, with special emphasis on the nineteenth and twentieth centuries. It presents an accurate and thoroughly fresh look at that history, reaching several unorthodox conclusions without taking sides on the merits of the abortion debate. The true history of abortion in England and America is important because Justice Harry Blackmun, drawing on the work of law professor Cyril Means, structured the argument of the majority in Roe v. Wade around the history of abortion laws. Means’ argument was later buttressed by the work of …

Considering Standing, Sincerity, And Antidiscrimination, Chapin C. Cody

Working Paper Series

This Article will establish that an unrecognized norm, the “norm of sincerity,” is an implicit factor in the standing analysis in a certain class of equal protection cases. That class of cases includes equal protection claims where 1) courts have applied the “able and ready to compete” test to determine a plaintiff’s injury in fact, and where 2) the plaintiff has complained about discriminatory access to limited government resources. In those cases, a plaintiff cannot demonstrate injury in fact sufficient to meet Article III standing unless she shows that she sincerely intends to use the benefits at stake in the …

Constitutional Tipping Points: Civil Rights, Social Change, And Fact-Based Adjudication, Suzanne B. Goldberg

Rutgers Law School (Newark) Faculty Papers

Judicial opinions typically rely on facts about a social group to justify or reject limitations on group members' rights, especially when traditional views about the status or capacity of group members are in contest. Yet the fact based approach to decision making obscures the normative judgments that actually determine whether restrictions on individual rights are reasonable. This article offers an account of how and why courts intervene in social conflicts by focusing on facts rather than declaring norms. In part, it argues that this approach preserves judicial flexibility to retain traditional justifications for restricting group members' rights in some settings …

Why The Defense Of Marriage Act Is Not (Yet?) Unconstitutional: Lawrence, Full Faith And Credit, And The Many Societal Actors That Determine What The Constitution Requires, Mark D. Rosen

All Faculty Scholarship

This Article argues that the Defense of Marriage Act (DOMA) is not unconstitutional - at least not yet. DOMA provides that States need not recognize same-sex marriages (or judgments in connection with such marriages) performed in sister States. The Article first shows that the Supreme Court's recent opinion in Lawrence v. Texas, which struck down as unconstitutional state laws that criminalized sodomy, has not invalidated the DOMA. Lawrence is best understood as having left undecided the constitutional status of same-sex marriage, and the Article explains the benefits of the Court's having held back its constitutional judgment on this subject at …

Electoral College Reform Is Heating Up, And Posing Some Tough Choices, Robert Bennett

Public Law and Legal Theory Papers

Electoral College reform is beginning to get some attention, with two different emphases, a move to institute a nationwide popular vote without a constitutional amendment, and a move to forbid faithless electoral votes. There is no logical incompatibility between the two, but in political and public policy terms, there are tensions between them. This paper evaluates the relative merits and importance of the two efforts and explores the tensions in simultaneous pursuit of the two.

United States V. Hatter And The Taxation Of Federal Judges, Jonathan L. Entin, Erik M. Jensen

Faculty Publications

Does the constitutional requirement that the "compensation" of federal judges "not be diminished during their Continuance in office" preclude Congress from subjecting sitting judges to the social security taxes from which they had previously been exempt? In Hatter v. United States, the Federal Circuit ruled for judges claiming such an exemption, and, after the Supreme Court granted cert, the authors wrote the first of these two articles, arguing why, for a multitude of reasons, the Supreme Court should reverse and make it clear that judges may constitutionally be subject to a tax of general application. After the Supreme Court held …

Kramer's Popular Constitutionalism: A Quick Normative Assessment, Sarah K. Harding

All Faculty Scholarship

No abstract provided.

Constitutional Education For The People Themselves, Sheldon Nahmod

All Faculty Scholarship

No abstract provided.

Unapportioned Direct-Consumption Taxes And The Sixteenth Amendment, Erik M. Jensen

Faculty Publications

The point of this essay is simple: a direct-consumption tax like the Forbes-Armey-Hall-Rabushka flat tax or the Nunn-Domenici USA tax is not a "tax on incomes" within the meaning of the Sixteenth Amendment. As a result, such a tax would be constitutional only if it were apportioned among the states on the basis of population. And since these taxes would not be apportioned-how could they be and work as they are intended to work?-they would be unconstitutional.

Taxation And The Constitution: How To Read The Direct-Tax Clauses, Erik M. Jensen

Faculty Publications

This essay responds to Professor Bruce Ackerman, who had challenged the author's understanding of the Direct-Tax Clauses of the Constitution and the Sixteenth Amendment to that Constitution.

The Apportionment Of ‘Direct Taxes’: Are Consumption Taxes Constitutional?, Erik M. Jensen

Faculty Publications

In debates about reorienting the American revenue system, nearly everyone assumes the Constitution is irrelevant. With few exceptions, the tax provisions in the original Constitution - particularly the direct-tax apportionment rule and the uniformity rule - have been interpreted to be paper tigers. And in only one major case has the Sixteenth Amendment, which excepts "taxes on incomes" from apportionment, been held to limit congressional power.

S Rejecting conventional wisdom, this Article argues that some consumption taxes would violate constitutional norms. The Article focuses on the requirement that “direct taxes” be apportioned among the states on the basis of population. …

Break Up The Presidency? Governors, State Attorneys General, And Lessons From The Divided Executive, William P. Marshall

Faculty Publications

No abstract provided.

Davis V. Washington And Hammon V. Indiana: Beating Expectations, Robert P. Mosteller

Faculty Publications

No abstract provided.

The Enumeration Of Rights: "Let Me Count The Ways", John V. Orth

Faculty Publications

No abstract provided.

What's Old Is New Again, Symposium: The Role Of Judges In The 21st Century, Michael J. Gerhardt

Faculty Publications

No abstract provided.

Super Precedent, Michael J. Gerhardt

Faculty Publications

No abstract provided.

Unintended Consequences Of The Fourteenth Amendment And What They Tell Us About Its Interpretation, Richard L. Aynes

Akron Law Faculty Publications

The Fourteenth Amendment has been compared to “second American Constitution.” Indeed, it is said that more litigation is based upon the Fourteenth Amendment or its implementing statutes than any other provision of the Constitution. As one would imagine for such an important charter of government, there is a substantial—and some might say overwhelming—body of scholarship on the “intent,” “meaning,” and “understanding” of the Fourteenth Amendment.

Much of the literature, understandably, seeks to find out what the framers of the amendment or the ratifiers of the amendment “intended.” What did they want to accomplish by adopting this amendment? This article treats …