Digital Commons Network^™

The Iraq Paradox: Minority And Group Rights In A Viable Constitution, Makau Mutua

Buffalo Law Review

On October 15, 2005 an Iraq ravaged by a civil war spawned by the 2003 American invasion and subsequent occupation voted to decide the fate of a permanent constitution for the country. Although many Sunni Arabs took part in the vote, the referendum lost in the three governorates where they form a majority. But the constitution was approved because opponents only succeeded in recording "no" votes larger than two-thirds in only two of Iraq's eighteen provinces, in effect one province short of a veto. A two-thirds rejection in three provinces would have doomed the charter and the transition to a …

A Constitutional Amendment To Reform Kentucky’S Courts, Kurt Metzmeier

Faculty Scholarship

Responding to a confused patchwork of trial courts with overlapping jurisdiction, uneven justice around the state, and a growing backlog of appellate cases, voters in Kentucky went to the polls on November 4, 1975, to approve a sweeping constitutional amendment that radically revised Kentucky’s court system. Although reformers had decried Kentucky’s confusing court system since the 1940s, the real roots of the revision of the judicial article can be found in the failed movement in the late 1960s to replace Kentucky’s 1891 constitution. Unbowed by the defeat, judicial reformers immediately set out to pass a separate amendment reforming the courts, …

A Constitutional Amendment To Reform Kentucky’S Courts, Kurt X. Metzmeier

Kurt X. Metzmeier

Responding to a confused patchwork of trial courts with overlapping jurisdiction, uneven justice around the state, and a growing backlog of appellate cases, voters in Kentucky went to the polls on November 4, 1975, to approve a sweeping constitutional amendment that radically revised Kentucky’s court system. Although reformers had decried Kentucky’s confusing court system since the 1940s, the real roots of the revision of the judicial article can be found in the failed movement in the late 1960s to replace Kentucky’s 1891 constitution. Unbowed by the defeat, judicial reformers immediately set out to pass a separate amendment reforming the courts, …

First Principles For Virginia's Fifth Century, Hon. Robert F. Mcdonnell

University of Richmond Law Review

No abstract provided.

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.

Commenting On The Views Of Roger Pilon, Arthur R. Landever

Law Faculty Presentations and Testimony

Professor Landever comments upon the views of Roger Pilon of the Cato Institute on interpretation of the U.S. Constitution.

Democracy Means That The People Make The Law, Gerald Torres

New England Journal of Public Policy

Gerald Torres delivered the Robert C. Wood lecture at the McCormack Graduate School of Policy Studies at University of Massachusetts Boston in 2006. This is his talk.

Constitutional Referendum In The United States Of America, William B. Fisch

Faculty Publications

The United States of America, as a federation of now 50 states each with its own constitution and legal system still enjoying a large degree of governmental autonomy within the national legal framework, presents a strikingly mixed picture regarding the use of direct democracy--the submission of proposed governmental action to a popular vote--in law- and constitution-making processes. At the national level, direct democracy has never been used for either type of enactment. At the state and local level, however, its use dates back to colonial times and has been increasing gradually (though still not universal) ever since. Since the mid-19th …

F06rs Sgb No. 10 (Staff Pay), Barber

Student Senate Enrolled Legislation

No abstract provided.

F06rs Sgb No. 8 (Amend, Referendum), Hodge

Student Senate Enrolled Legislation

No abstract provided.

F06rs Sgb No. 16 (Senate Representation), Hodge, Hattaway

Student Senate Enrolled Legislation

No abstract provided.

Lost Constitutional Moorings: Recovering The War Power, Louis Fisher

Indiana Law Journal

For the past half century, Presidents have claimed constitutional authority to take the country from a state of peace to a state of war against another nation. That was precisely the power that the Framers denied to the President and vested exclusively in Congress. That allocation of power was understood by all three branches until President Harry Truman went to war against North Korea in 1950. He never came to Congress for authority before he acted or at any time thereafter. Similar false claims of authority have been made by Presidents since that time. These constitutional violations have been assisted …

A More Perfect Union, Alan E. Garfield

Alan E Garfield

No abstract provided.

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

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 interpretation while, …

Florida’S Past And Future Roles In Education Finance Reform Litigation, Scott R. Bauries

Law Faculty Scholarly Articles

In federalist parlance, the states often are called laboratories of democracy. Nowhere is this truer than in the field of education, and almost no subset of the education field lends itself to this label more than education finance. Since 1973, with very few notable exceptions, the entire development of the practice of education finance has proceeded through state-specific reforms. These reforms have occurred mostly through legislative policymaking, but the courts have played an important role in directing that policy development.

If one were to seek to observe one of these laboratories in action—to witness the interaction of the courts, the …

An Analysis Of The Legality Of Television Cameras Broadcasting Juror Deliberations In A Criminal Case, Daniel H. Erskine

Daniel H. Erskine

Recently, ABC News broadcast the deliberations of several juries in capital murder cases into the living rooms of the American public. The latest judicial opinion to confront the problem of televising jury room deliberations in a capital criminal case took place in the Texas Court of Criminal Appeals. The article surveys the applicable federal constitutional and statutory law, as well as state jurisprudence, relevant to the intrusion of television cameras into the jury room. Additionally, this article discusses recent Scottish and European case law addressing jury deliberation as a violation of the European Convention on Human Rights.

U. S. Constitution [8th Grade], Ben Altman

Understanding by Design: Complete Collection

In this unit, students will explore the U.S. Constitution. They will begin by analyzing the issues and debates of the colonial era that brought about the need for a more structured centralized government. They will then study the processes of creation and ratification, and examine how these processes have contributed to the documents longevity and success. They will further that examination by evaluating the actual words of the document. The culminating performance assessment will require students to create their own constitutional plan for the governance of their history classroom. They will present their plans to the class and examine the …

“What Is New Zealand’S Constitution And Who Interprets It? Constitutional Realism And The Importance Of Public Office-Holders”, Matthew S. R. Palmer

The Hon Justice Matthew Palmer

In May 2007 this article was awarded the Legal Research Foundation's Sir Ian Barker Published Article Award for the best article, essay or discrete book chapter published by a New Zealand-based author in 2005 or 2006.This article treats two, reasonably simple, questions: what is the New Zealand constitution and who interprets it? There have been few comprehensive attempts to identify, precisely and systematically, the elements of New Zealand’s constitution. This account is derived from a theoretical perspective labelled “constitutional realism” that seeks the meaning of a constitution in the real-world understandings and actions of those people involved in the application …

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

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 intermediate …

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 action is …

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

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

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

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

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 …

Elizabeth Cady Stanton On The Federal Marriage Amendment: A Letter To The President, Tracy A. Thomas

Akron Law Faculty Publications

This essay written from a historical, first-person perspective explores the parallels between the current movement for a Federal Marriage Amendment and that of the nineteenth century through the lens of feminist Elizabeth Cady Stanton. Using the archival sources of Stanton’s articles and speeches from 1880 to 1902, the paper identifies her key arguments opposing a constitutional standard of marriage. The paper then juxtaposes Stanton’s arguments against the 2004 Federal Marriage Amendment to reveal the continued relevance and import of her insights.

Stanton’s analytical platform attacked the core pretexts of federalism and gender that fueled the proposed marriage amendment in her …

Elizabeth Cady Stanton On The Federal Marriage Amendment: A Letter To The President, Tracy A. Thomas

Tracy A. Thomas

This essay written from a historical, first-person perspective explores the parallels between the current movement for a Federal Marriage Amendment and that of the nineteenth century through the lens of feminist Elizabeth Cady Stanton. Using the archival sources of Stanton’s articles and speeches from 1880 to 1902, the paper identifies her key arguments opposing a constitutional standard of marriage. The paper then juxtaposes Stanton’s arguments against the 2004 Federal Marriage Amendment to reveal the continued relevance and import of her insights. Stanton’s analytical platform attacked the core pretexts of federalism and gender that fueled the proposed marriage amendment in her …

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 …