Law Commons^™

The Political (And Other) Safeguards Of Religious Freedom, Richard W. Garnett

Richard W Garnett

This essay is a contribution to a symposium marking the 20th anniversary of the Supreme Court’s still-controversial decision in Employment Division v. Smith. That decision, it is suggested, should not be read as reflecting or requiring hostility or indifference towards claims for legislatively enacted accommodations of religion. Smith is not an endorsement of religion-blind neutrality in constitutional law; instead, it assigns to politically accountable actors the difficult, but crucially important, task of accommodating those whose religious exercise would otherwise be burdened by generally applicable laws. The essay goes on to suggest several things that must be true of our law …

Assimilation, Toleration, And The State's Interest In The Development Of Religious Doctrine, Richard Garnett

Richard W Garnett

Thirty-five years ago, in the context of a church-property dispute, Justice William Brennan observed that government interpretation of religious doctrine and judicial intervention in religious disputes are undesirable, because when civil courts undertake to resolve [doctrinal] controversies..., the hazards are ever present of inhibiting the free development of religious doctrine and of implicating secular interests in matters of purely ecclesiastical concern. This statement, at first, seems wise and fittingly cautious, even unremarkable and obvious. On examination, though, it turns out to be intriguing, elusive, and misleading. Indeed, Justice Brennan's warning presents hazards of its own, and its premises - if …

Introduction: Religion, Division, And The Constitution, Richard W. Garnett

Richard W Garnett

No abstract provided.

Judicial Review, Local Values, And Pluralism, Richard W. Garnett

Richard W Garnett

At the Federalist Society's 2008 National Student Symposium, a panel of scholars was asked to consider the question, does pervasive judicial review threaten to destroy local identity by homogenizing community norms? The answer to this question is yes, pervasive judicial review certainly does threaten local identity, because such review can homogenize[e] community norms, either by dragging them into conformity with national, constitutional standards or (more controversially) by subordinating them to the reviewers' own commitments. It is important to recall, however, that while it is true that an important feature of our federalism is local variation in laws and values, it …

Religious Freedom, Church Autonomy, And Constitutionalism, Richard W. Garnett

Richard W Garnett

No abstract provided.

Chief Justice Rehnquist's Enduring Democratic Constitution, Richard W. Garnett

Richard W Garnett

William H. Rehnquist's essay, The Notion of a Living Constitution, was delivered as the Will E. Orgain Lecture and then published thirty years ago, back when Rehnquist was still a relatively junior Associate Justice. The piece provides a clear and coherent statement of Rehnquist's judicial philosophy, and the Harvard Journal of Law and Public Policy and the Texas Law Review deserve thanks for their initiative and generosity in reproducing it, in memory of his life and work.

This introduction to Rehnquist's essay highlights his view that the Notion of a Living Constitution was to be resisted, not out of pious …

Formalism And Realism In Commerce Clause Jurisprudence, Barry Cushman

Barry Cushman

This Article attempts a reconceptualization of developments in Commerce Clause jurisprudence between the Civil War and World War II by identifying ways in which that jurisprudence was structurally related to and accordingly deeply influenced by the categories of substantive due process and dormant Commerce Clause doctrine. Antecedent dormant Commerce Clause jurisprudence set the terms within which Commerce Clause doctrine was worked out; coordinate developments in substantive due process doctrine set limits upon the scope of Commerce Clause formulations and thus played a critical and underappreciated role in maintaining the federal equilibrium. The subsequent erosion of those due process limitations vastly …

Lost Fidelities, Barry Cushman

Barry Cushman

No abstract provided.

The Secret Lives Of The Four Horsemen, Barry Cushman

Barry Cushman

"Outlined against red velvet drapery on the first Monday of October, the Four Horsemen rode again. In dramatic lore they are known as Famine, Pestilence, Destruction, and Death. These are only aliases. Their real names are Van Devanter, McReynolds, Sutherland, and Butler. They formed the crest of the reactionary cyclone before which yet another progressive statute was swept over the precipice yesterday morning as a packed courtroom of spectators peered up at the bewildering panorama spread across the mahogany bench above." Or so Grantland Rice might have written, had he been a legal realist. For more than two generations scholars …

Liberty, Judicial Review, And The Rule Of Law At Guantanamo: A Battle Half Won, Doug Cassell

Douglass Cassel

In Boumediene v. Bush, 128 S. Ct. 2229 (2008), five members of the Supreme Court held that foreign prisoners at Guantanamo enjoy the constitutional privilege of habeas corpus; that their imprisonment had lasted too long for the Court to await completion of statutory review by lower courts of military tribunal findings that the prisoners were "enemy combatants"; and that the statutory judicial review was too deficient to substitute for the Great Writ. Four Justices vigorously dissented. On the surface they differed on the history of the reach of the common law writ of habeas corpus, and on the procedural guarantees …

The Kaffatan Constitution, Liaquat Ali Khan

Ali Khan

This Kaffatan Constitution is transformative energy guarding the peoples of the world, animals, and all life species that exist or may come to exist in the future. It transforms communities across the world, whether these communities are nation-states, provinces, cities, town, neighborhoods, or virtual communities, and turn them into Free States and Perfect Communities. Free State is Perfect Community and Perfect Community is Free State. The two are synonymous. Perfect Community is the radiance of Supreme Truth. Perfect Community evolves out of ordinary communities if, when, and while it seeks guidance from Supreme Truth. You are Perfect Community. You evolve …

November 3, 2013: Ronald Dworkin's Confusion, Bruce Ledewitz

Hallowed Secularism

Blog post, “Ronald Dworkin's Confusion“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

A Visual Guide To United States V. Windsor: Doctrinal Origins Of Justice Kennedy's Majority Opinion, Colin Starger

NULR Online

No abstract provided.

Severability, John C. Nagle

John Copeland Nagle

When a court holds a provision of a statute unconstitutional, a question remains regarding the validity of the remainder of the statute. The court may find that the unconstitutional provision may be severed from the statute and leave the remainder of the statute in effect. Alternatively, the court may hold that the unconstitutional provision cannot be severed and invalidate the entire statute. This article argues that the jurisprudence surrounding the issue of severability is confusing and inconsistent. After explaining the concept of severability and its ramifications for statutes, I trace the development of the current judicial test for determining when …

The Lame Ducks Of Marbury, John C. Nagle

John Copeland Nagle

The election of 1800 was one of the most contested - and important - in American history. After it became clear that neither President John Adams nor a Federalist majority in Congress had been reelected, they acted during the lame-duck period to preserve their influences far into the future. They did so by appointing John Marshall as Chief Justice, ratifying the Treaty with France, creating numerous new federal judicial positions, and filling many of those positions with friends, family, and Federalists (including William Marbury). Not surprisingly, Jefferson and his supporters protested these actions as contrary to the will of the …

Direct Democracy And Hastily Enacted Statutes, John C. Nagle

John Copeland Nagle

No abstract provided.

A Twentieth Amendment Parable, John C. Nagle

John Copeland Nagle

The twentieth amendment receives virtually no attention in modern American constitutional law. Adopted in 1933, the primary purpose of the amendment was to eliminate lame-duck Congresses. The proponents of the amendment argued that lame-ducks were subject to nefarious influences and that allowing lame-duck legislation contradicted the voice of the people in the most recent election. But the text of the twentieth amendment simply moved the date on which the newly elected President and Congress took office from March to January, and does not expressly prohibit lame-duck legislation. The framers of the amendment could not conceive of Congress meeting during the …

Waiving Sovereign Immunity In An Age Of Clear Statement Rules, John C. Nagle

John Copeland Nagle

No abstract provided.

Jurisdiction And The Enforcement Of Foreign Judgments, Tanya Monestier

Law Faculty Scholarship

No abstract provided.

Secrecy Broken: Reports Of The Delegates Following The Federal Convention, Peter Aschenbrenner

Peter J. Aschenbrenner

Despite the measures taken to ensure the secrecy of the proceedings during the federal convention, many delegates made reports to their states and explained the choices underlying various clauses. However, no delegate had access to the official journal of the constitutional convention.

A Horse! My Constitution For A Horse! Wm. Shakespeare And Alex. Pope Serve The Delegate Laureates, Peter Aschenbrenner

Peter J. Aschenbrenner

‘We the people’ is justly celebrated, and was upon its first reading, by those assembled in Philadelphia. OCL, having studied the orthography and punctuography of the instrument, along with its semantic provenance, now turns to the meter of it all.

Table Annexed To Article: British Orthography In The Early Constitution, Peter Aschenbrenner

Peter J. Aschenbrenner

OCL surveys the appearance of British spelling in the Early Constitution. The stylistic developments during the course of 27 years are tracked.

Speeches And Essays On The Jay Treaty Funding Bill (1796), Peter Aschenbrenner

Peter J. Aschenbrenner

William Vans Murray challenged James Madison on the floor of the House to take up the mantle of “oracle” of the constitution. James Madison refused and returned that it was the ratifiers, not the writers, of the constitution whose opinion mattered. Hamilton, having had his say and taunted Murray into the fray, is quoted in full (and for good) measure. The year is 1796 and we still don’t know the answer to the question ‘Why do we have a constitution.’ OCL explores these issues.

Regulación De La Universidad Pública Y Control Constitucional, Daniel Soria Luján

Daniel Soria Luján

No abstract provided.

Il Primo Scoglio Del Diritto Di Iniziativa Dei Cittadini Europei, Andrea Simoncini Prof.

Erik Longo

In the next few months the General Court of the European Union will rule on the issue of the admissibility of an European Citizens’ Initiative (hereinafter ECI) rejected on 6th September 2012 by the European Commission. This judgment is expected as one of the first assessment of the brand new instrument for participatory democracy introduced in the Lisbon Treaty (Article 11 of TUE). ECI is designed to allow the citizens to take an active role within the lawmaking process of the EU. One million citizens who fulfill a petition to call on the Commission have the right to propose a …

Abusive Constitutionalism, David Landau

Scholarly Publications

This paper identifies an increasingly important phenomenon: the use of mechanisms of constitutional change to erode the democratic order. A rash of recent incidents in a diverse group of countries such as Hungary, Egypt, and Venezuela has shown that the tools of constitutional amendment and replacement can be used by would-be autocrats to undermine democracy with relative ease. Since military coups and other blatant ruptures in the constitutional order have fallen out of favor, actors instead rework the constitutional order with subtle changes in order to make themselves difficult to dislodge and to disable or pack courts and other accountability …

Originalism And The Colorblind Constitution, Michael B. Rappaport

Notre Dame Law Review

In this Article, I challenge the claim that the original meaning clearly allows the states to engage in affirmative action. I argue that the original meaning does not plainly establish that affirmative action by the states is constitutional. Instead, there is, at the least, a reasonable argument to be made that state government affirmative action is unconstitutional. In fact, based on the available evidence, I believe that the case for concluding that the Fourteenth Amendment’s original meaning prohibits affirmative action as to laws within its scope is stronger than the case for concluding that it allows affirmative action. I do …

Every Picture Tells A Story: The 2010 Round Of Congressional Redistricting In New England, Robert G. Boatright, James R. Gomes, Diana Evans, John Baughman, Nicholas M. Giner, Dante J. Scala, Amelia Najjar, Nicholas Rossi

Mosakowski Institute for Public Enterprise

The United States Constitution requires that

the number of representatives in Congress be

reapportioned among the states based on a decennial

census, and the U.S. Supreme Court ruled half a

century ago that congressional districts within each

state must be, as nearly as practicable, equal in

population. However, the actual drawing of district

lines for our national lower house and the methods

employed for doing so are largely left to the individual

states. Redistricting thus presents a fertile field for

the comparative examination of state politics and

political institutions.

Citizenship And The Law Of Time In The United States, Elizabeth F. Cohen

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Autochthonous Constitutional Design In Post-Colonial Singapore: Intimations Of Confucianism And The Leviathan In Entrenching Dominant Government, Eugene K. B. Tan

Research Collection Yong Pung How School Of Law

Does Singapore's approach to institutional design vis-avis political representation prioritize strong and effective government, or is the goal one that is geared towards a representative government as a means of enhancing political governance? his paper examines the series of amendments to Singapore's Constitution and related legislation, between 1984 and 1990, and in 2010, which relate to political representation in Singapore's electoral system and unicameral legislature. At one level, the changes are part of the endeavor to retain Parliament's standing as the focal point of Singapore's Westminstermodeled system of government. The constitutional changes reflect the political elites' abiding belief that institutional …