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Global Issues In A Globalized World: The Unescapable Dialogue Between SharīʿA And The Constitution, Paolo Davide Farah

Book Chapters

In an increasingly globalized world, a world in flux, which is constantly subject to rapid circulation of information, change is a dimension that we all experience in our lives with ever increasing frequency. Change, be it that of customs and fashion or that of laws and systems of government, is something which now seems impossible to escape. Change is an integral part of our unstable contemporaneity.

This is not only a continuous change but also a rapid one. In such a social and political environment, at a global and local level, it is more and more difficult to find a …

"The Arc Of The Moral Universe": Christian Eschatology And U.S. Constitutionalism, Nathan Chapman

Scholarly Works

At the heart of American constitutionalism is an irony. The United States is constitutionally committed to religious neutrality; the government may not take sides in religious disputes. Yet many features of constitutional law are inexplicable without their intellectual and cultural origins in religious beliefs, practices, and movements. The process of constitutionalization has been one of secularization. The most obvious example is perhaps also the most ideal of liberty of conscience that fueled religious disestablishment, free exercise, and equality was born of a Protestant view of the individual’s responsibility before God.

This Essay explores another overlooked instance of constitutional secularization. Many …

Gouverneur Morris And The Drafting Of The Federalist Constitution, William M. Treanor

Georgetown Law Faculty Publications and Other Works

The Salmon P. Chase Colloquium series has had two themes: One is great moments in constitutional law, and the other is people who have been forgotten but should not have been. This colloquium is primarily in the latter category—it is about a forgotten founder of the Constitution. But the Constitution has more than one forgotten founder. I did a Google search this afternoon for “Forgotten Founder” and there are a whole series of books on various people who are the Constitution’s Forgotten Founder. So the Chase Colloquium series has another decade of subjects: Luther Martin, George Mason, Charles Pinckney, Roger …

The Concept Of “Elderly Citizens” In The Indonesian Constitution: A Critical Analysis, Ari Wahyudi Hertanto, Satya Arinanto, Jufrina Rizal

Indonesia Law Review

Human existence is the most important element of the law and the state. They contribute greatly to the growth and development of a nation. Despite their great contribution, all human beings will experience a gradual decrease in their physical and psychological capacity due to ageing. According to the latest Central Statistics Agency report, there exists 29.3 million elderly citizens in Indonesia. This figure is equivalent to 10.82% of the total population. To anticipate this demographic condition, the government ought to ensure the welfare of its elderly citizens in accordance with the mandate of the 1945 Constitution. However, the 1945 Constitution …

The Declaration Of Independence, Constitution, And Slavery, Johnny B. Davis

Helm's School of Government Conference - American Revival: Citizenship & Virtue

The paper address the nature of the principles of the Declaration and the Declaration's relationship to the Constitution and how these related to slavery. The argument is that the Declaration did stand for universal equality of the individual before God and the law and therefore its principles condemned slavery. The Constitution did not embrace slavery even though it failed to ban slavery but did set the foundation for the end of slavery.

Reparations And The International Law Origin Story, John Linarelli

Journal of Race, Gender, and Ethnicity

No abstract provided.

Self-Determination In American Discourse: The Supreme Court’S Historical Indoctrination Of Free Speech And Expression, Jarred Williams

Honors Theses

Within the American criminal legal system, it is a well-established practice to presume the innocence of those charged with criminal offenses unless proven guilty beyond a reasonable doubt. Such a judicial framework-like approach, called a legal maxim, is utilized in order to ensure that the law is applied and interpreted in ways that legislative bodies originally intended.

The central aim of this piece in relation to the First Amendment of the United States Constitution is to investigate whether the Supreme Court of the United States has utilized a specific legal maxim within cases that dispute government speech or expression regulation. …

Moral Truth And Constitutional Conservatism, Gerard V. Bradley

Journal Articles

Conservative constitutionalism is committed to "originalism," that is, to interpreting the Constitution according to its original public understanding. This defining commitment of constitutional interpretation is sound. For decades, however, constitutional conservatives have diluted it with a methodology of restraint, a normative approach to the judicial task marked by an overriding aversion to critical moral reasoning. In any event, the methodology eclipsed originalism and the partnership with moral truth that originalism actually entails. Conservative constitutionalism is presently a melange of mostly unsound arguments against the worst depredations of Casey's Mystery Passage.

The reason for the methodological moral reticence is easy to …

The Case Of The Dishonest Scrivener: Gouverneur Morris And The Creation Of The Federalist Constitution, William M. Treanor

Georgetown Law Faculty Publications and Other Works

At the end of the Constitutional Convention, the delegates appointed the Committee of Style and Arrangement to bring together the textual provisions that the Convention had previously agreed to and to prepare a final constitution. Pennsylvania delegate Gouverneur Morris drafted the document for the Committee, and, with few revisions and little debate, the Convention adopted Morris’s draft. For more than two hundred years, questions have been raised as to whether Morris covertly altered the text in order to advance his constitutional vision, but modern legal scholars and historians studying the Convention have either ignored the issue or concluded that Morris …

The People's Court: On The Intellectual Origins Of American Judicial Power, Ian C. Bartrum

Dickinson Law Review (2017-Present)

This article enters into the modern debate between “consti- tutional departmentalists”—who contend that the executive and legislative branches share constitutional interpretive authority with the courts—and what are sometimes called “judicial supremacists.” After exploring the relevant history of political ideas, I join the modern minority of voices in the latter camp.

This is an intellectual history of two evolving political ideas—popular sovereignty and the separation of powers—which merged in the making of American judicial power, and I argue we can only understand the structural function of judicial review by bringing these ideas together into an integrated whole. Or, put another way, …

Motives And Fiduciary Loyalty, Stephen R. Galoob, Ethan J. Leib

Faculty Scholarship

How, if at all, do motives matter to loyalty? We have argued that loyalty (and the duty of loyalty in fiduciary law) has a cognitive dimension. This kind of “cognitivist” account invites the counterargument that, because most commercial fiduciary relationships involve financial considerations, purity of motive cannot be central to loyalty in the fiduciary context. We contend that this counterargument depends on a flawed understanding of the significance of motive to loyalty. We defend a view of the importance of motivation to loyalty that we call the compatibility account. On this view, A acts loyally toward B only if …

American Legion V. American Humanist Association, Seth T. Bonilla

Public Land & Resources Law Review

The separation of church and state is a key element of American democracy, but its interpretation has been challenged as the country grows more diverse. In American Legion v. American Humanist Association, the Supreme Court adopted a new standard to analyze whether a religious symbol on public land maintained by public funding violated the Constitution’s Establishment Clause.

The Influence Of The Warren Court And Natural Rights On Substantive Due Process, James Marmaduke

Calvert Undergraduate Research Awards

Advanced Research Winner 2019:

While the concept of substantive due process has guided judicial decision making even prior to the Civil War, it has become a lightning rod among the juristic community especially since the 1960s. This controversy includes issues ranging from the applicability and reliability to the cogency and legitimacy of the doctrine of substantive due process Many scholars attribute the skepticism toward the concept of substantive due process to be the result of a paradigm shift in the middle of the 20^th century when this concept transitioned from an economic and property rights based approach to one …

Originalist Theory And Precedent: A Public Meaning Approach, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

Much ink has already been spilled on the relationship of constitutional originalism to precedent (or, more specifically, the doctrine of stare decisis). The debate includes contributions from Randy Barnett, Steven Calabresi, Kurt Lash, Gary Lawson, John McGinnis with Michael Rappaport, Michael Paulsen, and Lee Strang, not to mention Justice Antonin Scalia—all representing originalism in some form. Living constitutionalism has also been represented both implicitly and explicitly, with important contributions from Phillip Bobbitt, Ronald Dworkin, Michael Gerhardt, Randy Kozel, and David Strauss. Some writers are more difficult to classify; Akhil Amar comes to mind. And there are many other contributions to …

Introduction To Feminist Judgments: Rewritten Tax Opinions, Anthony C. Infanti, Bridget J. Crawford

Book Chapters

Could a feminist perspective change the shape of the tax law? Most people understand that feminist reasoning has tremendous potential to affect, for example, the law of employment discrimination, sexual harassment, and reproductive rights. Few people may be aware, however, that feminist analysis can likewise transform tax law (as well as other statutory or code-based areas of the law). By highlighting the importance of perspective, background, and preconceptions on the reading and interpretation of statutes, Feminist Judgments: Rewritten Tax Opinions shows what a difference feminist analysis can make to statutory interpretation. This volume, part of the Feminist Judgments Series, brings …

Taking Constitutional Identities Away From The Courts, Pietro Faraguna

Brooklyn Journal of International Law

In federal states, constitutional identity is the glue that holds together the Union. On the contrary, in the European Union—not a fully-fledged federation yet—each Member state has its own constitutional identity. On the one hand, the Union may benefit from the particular knowledge, innovation, history, diversity, and culture of its individual states. On the other hand, identity-related claims may have a disintegrating effect. Constitutional diversity needs to come to terms with risks of disintegration. The Treaty on the European Union seeks a balance, providing the obligation to respect the constitutional identities of its Member states. Drawing from the European experience, …

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

Bruce Ledewitz

The Declaration As Ur-Constitution: The Bizarre Jurisprudential Philosophy Of Professor Harry V. Jaffa, Patrick M. O'Neil

Akron Law Review

In his most recent work, Original Intent and the Framers of the Constitution: A Disputed Question, Professor Harry V. Jaffa finally has put together in one place the core of his constitutional hermeneutic with all the attendant elements of his jurisprudential philosophy. Stated in oversimplified terms, perhaps, Dr. Jaffa sees the Declaration of Independence as the source of the principles embodied in the Constitution of the United States and finds the Declaration, furthermore, to be an indispensable aid to the correct interpretation of that later document. In order to comprehend the error of Jaffa's claims, one must first consider several …

The Scope Of Precedent, Randy J. Kozel

Randy J Kozel

The scope of Supreme Court precedent is capacious. Justices of the Court commonly defer to sweeping rationales and elaborate doctrinal frameworks articulated by their predecessors. This practice infuses judicial precedent with the prescriptive power of enacted constitutional and statutory text. The lower federal courts follow suit, regularly abiding by the Supreme Court’s broad pronouncements. These phenomena cannot be explained by—and, indeed, oftentimes subvert—the classic distinction between binding holdings and dispensable dicta. This Article connects the scope of precedent with recurring and foundational debates about the proper ends of judicial interpretation. A precedent’s forward- looking effect should not depend on the …

Religiosity In Constitutions And The Status Of Minority Rights, Brandy G. Robinson

Cultural Encounters, Conflicts, and Resolutions

Minority rights and religion have never been topics that are simultaneously considered. However, arguably, the two have relevance, especially when combined with the topic and theory of constitutionalism. Historically and traditionally, minorities have been granted certain rights and have been denied certain rights under various constitutions. These grants and denials relate to cultural differences and values, arguably relating to a culture’s understanding and interpretation of religion.

This article explores the relationship and status of minority rights as it relates to religiosity and constitutionalism. Essentially, there is a correlation between these topics and research shows where certain nations have used religion …

Closing The Doors To Justice: A Critique Of Pimentel V. Dreyfus And The Application Of Legal Formalism To The Elimination Of Food Assistance Benefits For Legal Immigrants, Hannah Zommick

Seattle University Law Review

This Comment contends that the Ninth Circuit’s opinion in Pimentel v. Dreyfus employed a legal formalist approach and that by applying this framework, the court prevented legal immigrants, who were caught between the strict eligibility restrictions of welfare reform, from asserting their rights through the justice system. The legal formalist approach “treats the law as a set of scientific formulae or principles that are derived from the study of case law. These principles create an internal analytical framework which, when applied to a set of facts, leads the decision maker, through logical deduction, to the correct outcome in a case.” …

The Scope Of Precedent, Randy J. Kozel

Michigan Law Review

The scope of Supreme Court precedent is capacious. Justices of the Court commonly defer to sweeping rationales and elaborate doctrinal frameworks articulated by their predecessors. This practice infuses judicial precedent with the prescriptive power of enacted constitutional and statutory text. The lower federal courts follow suit, regularly abiding by the Supreme Court’s broad pronouncements. These phenomena cannot be explained by—and, indeed, oftentimes subvert—the classic distinction between binding holdings and dispensable dicta. This Article connects the scope of precedent with recurring and foundational debates about the proper ends of judicial interpretation. A precedent’s forward- looking effect should not depend on the …

Taking States (And Metaphysics) Seriously, Sanford Levinson

Michigan Law Review

Sotirios A. Barber has written many incisive and important books, in addition to coediting an especially interesting casebook on constitutional law and interpretation. He is also a political theorist. An important part of his overall approach to constitutional theory is his philosophical commitment to “moral realism.” He believes in the metaphysical reality of moral and political truths, the most important of which, for any constitutional theorist, involve the meanings of justice and the common good. He not only believes in the ontological reality of such truths — that is, that these truths are more than mere human conventions or social …

A Vanishing Virginia Constitution?, Hon. Stephen R. Mccullough

University of Richmond Law Review

No abstract provided.

Beyond Formalist Sovereignty: Who Can Represent "We The People Of The United States" Today?, David Chang

University of Richmond Law Review

No abstract provided.

Unmasking Judicial Extremism, Carl Tobias

University of Richmond Law Review

No abstract provided.

Our Founding Feelings: Emotion, Commitment, And Imagination In Constitutional Culture, Doni Gewirtzman

University of Richmond Law Review

No abstract provided.

Torture, Marcy Strauss

NYLS Law Review

No abstract provided.

To Finish The Work We Are In: Abraham Lincoln's Speeches, From Lawyer's Briefs To Moral Manifesto, Kenneth Anderson

Book Reviews

This essay from the Times Literary Supplement (23 May 2003) reviews books on Lincoln's speeches and writings, particularly the Second Inaugural Address. It examines the transition from the First Inaugural Address to the Second Inaugural Address, finally focusing on how Lincoln seeks to steer between moral relativism about the war - each side does as it sees right - and moral absolutism.

The Empty Circles Of Liberal Justification, Pierre Schlag

Michigan Law Review

American liberal thinkers are fascinated with the justification of the liberal state. It is this question of justification that inspires and organizes the work of such leading liberal thinkers as John Rawls, Ronald Dworkin, Frank Michelman, and Bruce Ackerman. The manifest import and prevalence of the question of justification among liberal thinkers makes it possible to speak here of a certain "practice of liberal justification." This practice displays a certain order and certain recursive characteristics. It is composed of a common ontology and a common narrative. It poses for itself a series of recursive intellectual problems answered with a stock …