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Judicial Activism And Arbitrary Control: A Critical Analysis Of Obergefell V Hodges 556 Us (2015) - The Us Supreme Court Same-Sex Marriage Case, Augusto Zimmermann

The University of Notre Dame Australia Law Review

This article critically analyses the recent US Supreme Court decision in Obergefell v Hodges, the samesex marriage case. The court in Obergefell put a stop to the democratic process by removing an important issue from the realm of democratic deliberation. These unelected judges held that their nation’s federal constitution should ‘evolve’ in a way that is supported by neither the document’s language, nor its history or authority. In short, they have imposed their worldview on the people at the expense of federalism and the democratic process. This is why Justice Alito was so correct to state that such an exercise …

The Constitution And Societal Norms: A Modern Case For Female Breast Equality, Brenna Helppie-Schmieder

DePaul Journal of Women, Gender and the Law

“The Constitution and Societal Norms: A Modern Case for Female Breast Equality” argues that laws prohibiting the public display of the female breast, but not the male breast, are unconstitutional under the Fourteenth Amendment’s Equal Protection Clause. That these laws discriminate against women is obvious, yet courts have historically refused to recognize an Equal Protection Clause violation. However, the primary reasons courts rely upon are ripe for review. Most significantly, courts typically justify female breast censorship laws based on the government interest in protecting public sensibilities, without recognizing that public sensibilities change. Indeed, perceptions of the public female breast have …

Prayer And The Meaning Of The Establishment Clause: A Debate On Town Of Greece V. Galloway, Patrick M. Garry

ConLawNOW

Greece v. Galloway involved the constitutionality of the town of Greece’s practice of opening its monthly town board meetings with an invocation given by a volunteer chaplain of the month. The issue in Greece was not the appropriateness, sensitivity, or wisdom of the prayers, nor whether some people are offended by the prayers.

The Establishment Clause is not about feelings, just as the Speech Clause is not about the feelings of people who disagree with or are offended by other people’s speech. The Establishment Clause is not an individual rights clause; it is a clause focused on the institutional liberty …

Who Amended The Amendment?, John Olsson

ConLawNOW

The purpose and intent of the Sixth Amendment of the US Constitution has been repeatedly distorted by textualist misinterpretation, orchestrated by elements of the judiciary more concerned with preserving the power of government than the rights of individual defendants. As a result, it is hard to know what the Amendment stands for, since it has been successively re‑interpreted and, effectively, amended for at least the past 80 years and possibly longer. The author argues that it is time for courts to return to the spirit of the laws that actuated the Bill of Rights over two hundred years ago, and …

The Founders On: "Does The Constitution Work?", Craig A. Stern

ConLawNOW

Whether the Constitution works depends upon the purpose of its working. Discerning that purpose, however, has resisted consensus. Consequently, this article suggests a roundabout way to supply at least a tentative answer to the question whether the Constitution works. The Founders believed that the Constitution, like any republican form of government, would work only for a moral and religious people. They framed and adopted the Constitution in that belief. John Adams warned that without morality and religion, the passions of the people “would break the strongest cords of our Constitution.” A glance at how some cords have fared with a …

Constitutionalizing Fetal Rights: A Salutary Tale From Ireland, Fiona De Londras

Michigan Journal of Gender & Law

In 1983, Ireland became the first country in the world to constitutionalize fetal rights. The 8th Amendment to the Constitution, passed by a referendum of the People, resulted in constitutional protection for “the right to life of the unborn,” which was deemed “equal” to the right to life of the “mother.” Since then, enshrining fetal rights in constitutions and in legislation has emerged as a key part of anti-abortion campaigning. This Article traces the constitutionalization of fetal rights in Ireland and its implications for law, politics, and women. In so doing, it provides a salutary tale of such an approach. …

Executive Acquiescence To Constitutional Norms And Judicial Decision-Making In South Africa, Andrew Konstant, Shayda Vance

University of Miami International and Comparative Law Review

No abstract provided.

Historians And The New Originalism: Contextualism, Historicism, And Constitutional Meaning, Martin S. Flaherty

Fordham Law Review

Toward that end, this Foreword addresses three matters. First, it considers why the use of history in constitutional interpretation is inescapable. Next, it suggests that the Essays in this forum do not go far enough in debunking the idea of “public meaning” originalism as a serious alternative to previous approaches. Finally, the balance of this Foreword reviews the also perhaps inescapable misuses of history that constitutional interpretation invites and considers the type of misuse that public meaning originalism represents.

Historicism And Holism: Failures Of Originalist Translation, Jonathan Gienapp

Fordham Law Review

For as long as the U.S. Constitution has existed, Americans have appealed to the history of its creation to interpret its meaning. But only since the advent of originalism—the well-known constitutional theory that requires interpreting the Constitution today in accordance with its original meaning—has historical study been so immediately implicated by constitutional interpretation. Despite potential, though, for meaningful exchange between originalists and historians, little has taken place. That originalism plays an ever-growing role in contemporary political culture only makes the lack of dialogue all the more unfortunate.

“To Assemble Together For Their Common Good”: History, Ethnography, And The Original Meanings Of The Rights Of Assembly And Speech, Saul Cornell

Fordham Law Review

The Whiskey Rebellion is not generally a major focus in constitutional histories or casebooks. Given this fact, it is hardly surprising that the 1795 case Respublica v. Montgomery seldom figures as more than a minor footnote in scholarly writing about early American constitutional development, if it receives any attention at all. The case has little precedential value for modern First Amendment doctrine and only obliquely implicates larger jurisprudential questions about the rights of assembly and freedom of expression. In strictly doctrinal terms, Montgomery is primarily about the obligation of a justice of the peace to put down a riot, not …

Outsourcing The Law: History And The Disciplinary Limits Of Constitutional Reasoning, Helen Irving

Fordham Law Review

Debates about the use of history in constitutional interpretation find their primary nourishment in the originalism debate. This has generated a vast amount of literature, but also narrowed the terms of the debate. Originalism is a normative commitment wrapped in a questionable methodological confidence. Regardless of the multiple forms originalism takes, originalists are confident that the meaning (in the sense of intention) that animated the framing of the Constitution can be ascertained and, indeed, that they can ascertain it. The debate has largely focused, then, on whether modern-day scholars and jurists can ascertain original historical meaning or, alternatively, whether they …

Tone Deaf To The Past: More Qualms About Public Meaning Originalism, Jack Rakove

Fordham Law Review

With some apologies for a vast degree of oversimplification, let us stipulate that there are two main forms of originalism. One is known as “semantic” or “public meaning” originalism. Its leading advocates include Lawrence Solum, Keith Whittington, and Randy Barnett (professional friends, all). The leading premise of semantic originalism is that the meaning of the constitutional text—or, more specifically, of its individual clauses—was fixed at the moment of its adoption. Under this view, the goal of constitutional interpretation is to recover that original meaning, and the best way to do that pivots on reconstructing how an informed reader, whether a …

Fundamental Unenumerated Rights Under The Ninth Amendment And The Privileges Or Immunities Clause, Adam Lamparello

Akron Law Review

The failure to link the Ninth Amendment and Privileges or Immunities Clause for the purpose of creating unenumerated fundamental rights has been a persistent but rarely discussed aspect of the Court’s jurisprudence. That should change. There need not be an ongoing tension between the Court’s counter-majoritarian role and the authority of states to govern through the democratic process. If the Constitution’s text gives the Court a solid foundation upon which to recognize new rights and thereby create a more just society, then the exercise of that power is fundamentally democratic. The Ninth Amendment and Privileges or Immunities Clause provides that …

Liberty At The Borders Of Private Law, Donald J. Smythe

Akron Law Review

Liberty is both dependent upon and limited by the State. The State protects individuals from the coercion of others, but paradoxically, it must exercise coercion itself in doing so. Unfortunately, the reliance on the State to deter coercion raises the possibility that the State’s powers of coercion might be abused. There is, not surprisingly, therefore, a wide range of literature on the relationship between law and liberty, but most of it focuses on the relationship between public law and liberty. This Article focuses on the relationship between private law and liberty. Private laws are enforced by courts. Since the judiciary …

The Society Of Hunger Ethiopia Government (1930-2014) And Famine: The Importance Of Constitution, Tewodros Zewdu Asfaw

Electronic Theses and Dissertations

This thesis is a critical examination of the discursive construction of hunger using Ethiopia’s 1955, 1987, 1994 constitutions. The focus is on whether there is a match or mismatch between constitutional mandate and the level of hunger as well as the related government response in Ethiopia. It examines the relationship between the level of hunger and regime type. The findings suggest that there is a strong association between level of hunger and the absence of constitutional mandate and a strong association between regime type and level of hunger. Based on the findings, it is recommended that constitutional mandate and politicization …

English Legal Thought, American Colonial Experience And The Creation Of The United States’ Constitution, Roberto O. Flores De Apodaca

Armstrong Undergraduate Journal of History

About the author

Roberto O. Flores de Apodaca is a Junior studying History at Concordia University in Irvine, CA. He hopes to go to graduate school and eventually become a history professor.

The Five Days In June When Values Died In American Law, Bruce Ledewitz

Bruce Ledewitz

Firearms Law And The Second Amendment: Regulation, Rights, And Policy - Online Chapters, George A. Mocsary, Michael P. O'Shea, Nicholas James Johnson, David B. Kopel

Faculty Book Chapters

These are the online Chapters of the law school casebook Firearms Law and the Second Amendment Regulation Rights and Policy by Nicholas J Johnson David B Kopel George A Mocsary and Michael P O'Shea Aspen Publishers Chapter 12 Social Science Chapter 13 International Law Chapter 14 Comparative Law Chapter 15 InDepth Explanation of Firearms and AmmunitionChapter 12 presents empirical data and studies on firearm use and misuse Most of the chapter involves criminological issues like gun use in crime resisting crime and guns as deterrents to crime The chapter also covers many facets of the debates about gun control or …

Forum On Constitution And Same Sex Marriage, Mark D. Weinstein

News Releases

The Cedarville University Center for Political Studies will be hosting a forum to discuss the relationship between the Constitution and Same Sex Marriage on Wednesday, Oct. 21 at 7 p.m. The event will be held in the Center for Biblical and Theological Studies building (Room 115).

Bradley Jacob, J.D., associate professor of law at Regent University, and Mark Caleb Smith, Ph.D., professor of political science at Cedarville, will be speaking on the legal and moral implications of Obergefell v. Hodges for Christians as well as how the church should respond. The event is free and open to the public.

Diverse Persuasion(S): From Rhetoric To Representation (And Back Again To Rhetoric) In International Human Rights Interpretation, Craig Scott

Craig M. Scott

This article proceeds from a way of thinking about legal-rights reasoning that is grounded in the rhetorical tradition. In light of questions of political legitimacy and personal ethics, a central premise of the article is that the rhetorical enterprise must situate itself within a paradigm of dialogic communication in which mutual persuasion is the orientation to argument and the quest for intersubjective validation of claimed premises, lines of argument, and conclusions is the purposive mode. The first step in the article is to move from a general conception of law as a field of rhetoric to an account of how …

Aboriginal Title And The Division Of Powers: Rethinking Federal And Provincial Jurisdiction, Kent Mcneil

Kent McNeil

The recent decision of the Supreme Court of Canada in Delgamuukw v. British Columbia calls for re-examination of a number of significant Aboriginal rights issues. The crucial role of oral histories in Aboriginal rights litigation was emphasized by the Court, and guidelines were laid down for trial judges to admit and give proper weight to that evidence. For the first time the Court addressed the vital issue of the content of Aboriginal title and provided direction on how that title can be proved.The Court also dealt with the constitutional protection accorded to Aboriginal title by s. 35(1) of the Constitution …

Reconciliation And The Supreme Court: The Opposing Views Of Chief Justices Lamer And Mclachlin, Kent Mcneil

Kent McNeil

The Supreme Court of Canada has said that Aboriginal rights were recognized and affirmed in the Canadian Constitution in 1982 in order to reconcile Aboriginal peoples’ prior occupation of Canada with the Crown’s assertion of sovereignty. However, sharp divisions appeared in the Court in the 1990s over how this reconciliation is to be achieved. Chief Justice Lamer, for the majority, understood reconciliation to involve the balancing of Aboriginal rights with the interests of other Canadians. In some situations, he thought this could justify the infringement of Aboriginal rights to achieve, for example, economic and regional fairness. Justice McLachlin, on the …

The Constitution Act, 1982, Sections 25 And 35, Kent Mcneil

Kent McNeil

The Constitution Act, 1982, proclaimed in force as of April 17,1982, supplements the other Acts and Orders which already made up the Constitution of Canada. It does not detract from any of the rights of the aboriginal peoples of Canada guaranteed by earlier constitutional instruments. Section 91(24) of the 1867 Constitution Act, the Rupert's Land Order, and the Natural Resources Transfer Agreements, which have been discussed earlier this week, all continue to apply. In fact, they are specifically included in the new Act's definition of the Constitution of Canada. However, the 1982 Constitution Act goes further than previous constitutional instruments …

Democracy And Constitutional Change, Allan Hutchinson, Joel I. Colón-Ríos

Allan C. Hutchinson

The relationship between democracy and constitutions is a long and fractitious one. Those who lean towards the constitutionalist side have tended to perceive democracy as a threat to political order and the preservation of important values, whereas those who take a more democratist stance tend to treat constitutions as elite hindrances to popular rule as much as anything else. In this paper, we will give the constitutionalist thesis a broader theoretical and political scrutiny. By way of explanation, we will address and recommend the possibilities and problems for putting into practical operation such an anti-constitutionalist stance, the recent experience of …

Abstract Principle V. Contextual Conceptions Of Harm: A Comment On R. V. Butler, Jamie Cameron

Jamie Cameron

This comment provides a critique of the Supreme Court of Canada's decision in R. v. Butler, which held that section 163(8) of the Criminal Code, defining obscenity, is a reasonable limit on freedom of expression under section 1 of the Canadian Charter of Rights and Freedoms. Before discussing the Charter, the Court expanded the scope of section 163(8) to include a prohibition against sexually explicit material that is degrading or dehumanizing. Initially, the author is critical of the Court's methodology, which enlarged section 163(8) at the expense of expressive freedom, without even mentioning the Charter. Once the Court had interpreted …

Eyes On Bangladesh's Disappearing Coasts: Proposed Constitutional Protections For Coastal Communities Particularly Vulnerable To Climate Change, Sabrina Persaud

Student Works

Climate change, a phenomenon caused by global warming, has impacted just about every part of the earth. As polar ice caps continue to melt, people across the world are experiencing record-breaking heat waves and warmer winters. These erratic weather patterns are just one of the many impacts of climate change. Changes in temperature have altered ecosystems and habitats for terrestrial and marine wildlife, and caused human health to deteriorate. Larger, more industrialized countries are the major contributors to climate change; however, smaller countries, such as Bangladesh, suffer the consequences. This article analyses the negative effects that climate change has had …

Federalism, Federal Courts, And Victims' Rights, Michael E. Solimine, Kathryn Elvey

Catholic University Law Review

One of the most striking developments in American criminal law and procedure in the past four decades has been the widespread establishment of victims’ rights at both the federal and state levels. A conspicuous exception to the success of the victims’ rights movement has been the failure of Congress to pass a proposed amendment to the U.S. Constitution that would uniformly establish such rights in all federal and state courts. Advanced by both private organizations and state officials, and with bipartisan support in Congress, bills establishing a Victims’ Rights Amendment (VRA) have been introduced several times in the past three …

"A Republic If You Can Keep It", Eric Lane

Constitution Day Lectures

On this day, over 200 years ago, thirty-nine brave delegates of the Constitutional Convention met for the last time to sign the document they had created, the U.S. Constitution.

This year, Eric Lane, Dean of the Maurice A. Deane School of Law and the Eric J. Schmertz Distinguished Professor of Public Law and Public Service at Hofstra University, gave a presentation, “A Republic If You Can Keep It.” The event was held in the Leo A. Guthart Cultural Center Theater, 1st Floor Axinn Library.

Who’S The ‘We?’ Who’S ‘The People?’, Rodney A. Smolla

Rod Smolla

No abstract provided.

Taking Care Of Federal Law, Leah Litman

Articles

Article II of the Constitution vests the “executive power” in the President and directs the President to “take Care that the Laws be faithfully executed.” But do these provisions mean that only the President may execute federal law? Two lines of Supreme Court precedent suggest conflicting answers to that question. In several prominent separation-of-powers cases, the Court has suggested that only the President may execute federal law: “The Constitution requires that a President chosen by the entire Nation oversee the execution of the laws.” Therefore, the Court has reasoned, Congress may not create private rights of action that allow nonexecutive …