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- Robert G. Natelson (19)
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Articles 31 - 55 of 55
Full-Text Articles in Law
Standing On Holy Ground: How Rethinking Justiciability Might Bring Peace To The Establishment Clause, John M. Bickers
Standing On Holy Ground: How Rethinking Justiciability Might Bring Peace To The Establishment Clause, John M. Bickers
John M. Bickers
The Establishment Clause is home to both procedural and substantive disorder. Particularly in evaluating religious speech by the government, the Supreme Court applies any of a number of distinct tests, with varying degrees of strictness. At the same time, the Court has articulated a series of requirements necessary for a plaintiff to have standing to challenge government action, only to ignore them in government religious speech cases. The resulting lack of clarity leaves lower courts to their own devices in endeavoring to calm increasingly intense struggles. This article sets out a theory that altering one of these problems can correct …
Constitutionality Of The Patient Protection And Affordable Care Act Under The Commerce Clause And The Necessary And Proper Clause, Wilson Huhn
Wilson R. Huhn
The Patient Protection and Affordable Care Act is a comprehensive federal statute that attempts to extend health insurance coverage to tens of millions of Americans and to expand health insurance coverage by eliminating exclusions for preexisting conditions, increase medical loss ratios, abolish annual and lifetime limits, and other reforms. A necessary provision of this law (the individual mandate) requires most individuals to maintain health insurance coverage. The individual mandate has been challenged in a number of lawsuits on the ground that Congress lacks the power under the Constitution to require individuals to purchase health insurance. The power of Congress to …
From Immutable To Existential: Protecting Who We Are And Who We Want To Be With The 'Equalerty' Of The Substantive Due Process Clause, Aaron J. Shuler
From Immutable To Existential: Protecting Who We Are And Who We Want To Be With The 'Equalerty' Of The Substantive Due Process Clause, Aaron J. Shuler
Aaron J Shuler
Abstract Scholars have written about the duality of the substantive due process and equal protection doctrines and described how they have worked in tandem, although many academics have focused on, or outright called for, a preference for the use of the equal protection clause. Another contingent of the academic community, however, has discussed the favored use of substantive due process in the last fifty years in providing equal treatment for all groups by ferreting out discrimination against marginalized minorities. Scholars have also separately alluded to substantive due process’ ability to protect the most existential of liberties. This works seeks to …
The Original Scope Of The Congressional Power To Regulate Elections, Robert G. Natelson
The Original Scope Of The Congressional Power To Regulate Elections, Robert G. Natelson
Robert G. Natelson
Courts testing the constitutionality of federal campaign finance laws usually focus on First Amendment issues. More fundamental, however, is the question of whether campaign finance laws are within Congress’s enumerated power to regulate the “Times, Places and Manner of holding Elections.” This Article is an objective examination into the intended scope of this congressional power, using numerous sources overlooked by other legal writers. The Article concludes that the intended scope of the power was wide enough to authorize most modern congressional election statutes, but not wide enough to support modern federal campaign finance laws.
Color-Blind: Procedure's Quiet But Crucial Role In Achieving Racial Justice, Benjamin V. Madison Iii
Color-Blind: Procedure's Quiet But Crucial Role In Achieving Racial Justice, Benjamin V. Madison Iii
Benjamin V Madison, III
This article explores the role of procedural institutions, both in the Constitution and in other laws related to the judicial system, that promote impartial justice. The article explores the twin principles of human fallibility and the equality of all human beings as the fundamental bases of the judicial system. The role of procedure in enabling federal courts to enforce the Supreme Court's decision in Brown v. Board of Education is a featured part of the article.
The Original Meaning Of The Constitution's “Executive Vesting Clause”—Evidence From Eighteenth Century Drafting Practice, Robert G. Natelson
The Original Meaning Of The Constitution's “Executive Vesting Clause”—Evidence From Eighteenth Century Drafting Practice, Robert G. Natelson
Robert G. Natelson
Advocates of presidential power from the days of George Washington at least to the time of George W. Bush have claimed that the Constitution’s so-called “Executive Vesting Clause,” the first sentence of Article II, not only designates the President as chief executive, but also confers broad authority. Some commentators support that view, while others maintain that the President’s powers are limited to those enumerated elsewhere in the Constitution. This study addresses the previously-overlooked question of which interpretation is more consistent with contemporaneous drafting customs. It concludes that treating the “Executive Vesting Clause” as a mere designation is consistent with those …
The Original Meaning Of The Privileges And Immunities Clause, Robert G. Natelson
The Original Meaning Of The Privileges And Immunities Clause, Robert G. Natelson
Robert G. Natelson
This article explains the meaning of the U.S. Constitution's Privileges and Immunities Clause of Article IV, as the Founders understood it. It explains that the terms "privileges" and "immunities" had well-understood content in 18th century law---as benefits created by government. The Clause protects states from discriminating against visitors as to the benefits of citizenship (such as access to the courts), but does not address "natural rights" such as freedom of speech and religion.
Reclaiming Minnesota's Territorial Birthright: Why The Northwest Ordinance Restricts The State's Power Of Eminent Domain To Public Exigencies, Nicholas C. Dranias
Reclaiming Minnesota's Territorial Birthright: Why The Northwest Ordinance Restricts The State's Power Of Eminent Domain To Public Exigencies, Nicholas C. Dranias
Nicholas C Dranias
This short paper explains why the Northwest Ordinance of 1787 and the Minnesota state constitution should be read together “as one piece,” and how this reading warrants limiting the use of Minnesota’s power of eminent domain to circumstances of “public exigency.”
Culture, Religion, And Indigenous People, David S. Bogen, Leslie F. Goldstein
Culture, Religion, And Indigenous People, David S. Bogen, Leslie F. Goldstein
David S. Bogen
The Constitution treats culture, religion, and government as separate concepts. Different clauses of the First Amendment protect culture and religion from government. For several decades, the Supreme Court of the United States interpreted the First Amendment as offering religion greater protection against interference than was offered to culture, but the Supreme Court largely dissolved these constitutional differences when confronted with issues posed by the religious practices of Native Americans. With some indigenous Americans, the lines between culture, religion, and even government blur – challenging the Supreme Court’s assumptions about the Constitution. The uniqueness of the claims of Native Americans pushed …
The Penumbral Public Domain: Constitutional Limits On Quasi-Copyright Legislation, Aaron K. Perzanowski
The Penumbral Public Domain: Constitutional Limits On Quasi-Copyright Legislation, Aaron K. Perzanowski
Aaron K. Perzanowski
This Article attempts to reconcile the breadth of the modern Commerce Clause with the notion of meaningful and enforceable limits on Congress' copyright authority under Article I, Section 8, Clause 8. The Article aims to achieve two objectives. First, it seeks to outline a general approach to identifying and resolving inter-clause conflicts, sketching a methodology that has been lacking in the courts' sparse treatment of such conflicts. Second, it applies that general framework to the copyright power in order to outline the scope of constitutional prohibitions against quasi-copyright protections. In particular, this application focuses on the federal anti-bootlegging statutes and …
The Constitution Of Palestine: "The State In Development", Leonid G. Berlyavskiy
The Constitution Of Palestine: "The State In Development", Leonid G. Berlyavskiy
Leonid G. Berlyavskiy
Constitution of Palestine is an example of the constitutional act of the so-called "states in development" that is, being at the stage of development. The planned for the autumn of 2000 declaration of "the State the Palestine" has not taken place, however the constitution is considered working. According to the fundamental law Palestine is the parliamentary republic with rather extensive powers of the president, and is the unitary state.
Judicial Review Of Special Interest Spending: The General Welfare Clause And The Fiduciary Law Of The Founders, Robert G. Natelson
Judicial Review Of Special Interest Spending: The General Welfare Clause And The Fiduciary Law Of The Founders, Robert G. Natelson
Robert G. Natelson
This article surveys the principles of 18th century fiduciary law that the Founders incorporated into the U.S. Constitution-- principles they referred to as rules of "public trust." The article also suggests standards the courts can use to determine if particular congressional appropriations are within the "general welfare" limitation of the Constitution's so-called Spending Clause
Tempering The Commerce Power, Robert G. Natelson
Tempering The Commerce Power, Robert G. Natelson
Robert G. Natelson
The Supreme Court's modern interpretation of the Necessary and Proper Clause in the realm of interstate commerce is textually problematic, unfaithful to the Constitution's original meaning, and contains positive incentives for Congress to over-regulate. The Necessary and Proper Clause was intended to embody the common law doctrine of principals and incidents, and the Court should employ that doctrine as its interpretive benchmark. The common law doctrine contains less, although some, bias toward over-regulation, and it is flexible enough to adapt to changing social conditions. Adherence to the common law doctrine would markedly improve Commerce Power jurisprudence and reduce incentives for …
The Original Understanding Of The Indian Commerce Clause, Robert G. Natelson
The Original Understanding Of The Indian Commerce Clause, Robert G. Natelson
Robert G. Natelson
The United States Congress claims plenary and exclusive power over federal affairs with the Indian tribes, based primarily on the Constitution’s Indian Commerce Clause. This article is the first comprehensive analysis of the original meaning of, and understanding behind, that constitutional provision. The author concludes that, as originally understood, congressional power over the tribes was to be neither plenary nor exclusive.
Federal Land Retention And The Constitution's Property Clause: The Original Understanding, Robert G. Natelson
Federal Land Retention And The Constitution's Property Clause: The Original Understanding, Robert G. Natelson
Robert G. Natelson
This article examines the original meaning of the Constitution's clauses authorizing federal land ownership. It finds that the power granted to Congress was broad enough to include land ownership for enumerated purposes, even without complying the procedures necessary for the creation of federal enclaves. But it finds that the power was not broad enough to include indefinite landholding for unenumerated purposes.
The Israeli Constitutional Revolution/Evolution, Models Of Constitutions, And A Lesson Frommistakes And Achievements, Yoseph M. Edrey Prof.
The Israeli Constitutional Revolution/Evolution, Models Of Constitutions, And A Lesson Frommistakes And Achievements, Yoseph M. Edrey Prof.
Yoseph M. Edrey
There are some fundamental preconditions entailed in the process of becoming a democratic state. The mere existence of a written document entitled "Constitution" is not enough; a society is entitled to be considered a democratic state by the international community only if its legal sys- tem contains two attributes-the recognition of basic human rights and the idea that basic human rights are protected by some type of judicial review performed by an independent court system. Further- more, it would be better if these basic human rights were enumerated in a written constitution. Nonetheless, based on the Social Contract concept, the …
The Agency Law Origins Of The Necessary And Proper Clause, Robert G. Natelson
The Agency Law Origins Of The Necessary And Proper Clause, Robert G. Natelson
Robert G. Natelson
This is the first of several writings by the author on the original meaning of the Constitution's Necessary and Proper Clause. It explains part of the legal background of the Clause, identifies it as a recital (not an independent grant of power) of the 18th century doctrine of incidental powers, and explains the content of that doctrine. The article has since been updated and supplemented by the author's signed chapters in Lawson, Miller, Natelson & Seidman, The Origins of the Necessary and Proper Clause (Cambridge Univ. Press, 2010).
The General Welfare Clause And The Public Trust: An Essay In Original Understanding, Robert G. Natelson
The General Welfare Clause And The Public Trust: An Essay In Original Understanding, Robert G. Natelson
Robert G. Natelson
This article explains the original meaning/understanding of the Constitution's General Welfare Clause, including the scope of the taxing and spending power granted to Congress
The Constitution And The Public Trust, Robert G. Natelson
The Constitution And The Public Trust, Robert G. Natelson
Robert G. Natelson
The American Founders believed that public officials were bound by fiduciary obligations, and they wrote that view into the Constitution. This article copiously documents their position.
The Enumerated Powers Of States, Robert G. Natelson
The Enumerated Powers Of States, Robert G. Natelson
Robert G. Natelson
This article lists and discusses the powers reserved exclusively to the states, according the representations made to the ratifying public during the debates over the U.S. Constitution.
The Constitutional Contributions Of John Dickinson, Robert G. Natelson
The Constitutional Contributions Of John Dickinson, Robert G. Natelson
Robert G. Natelson
This article reviews the impact on the drafting and adoption of the U.S. Constitution of the man sometimes referred to as the most underappreciated Founder
Statutory Retroactivity: The Founders' View, Robert G. Natelson
Statutory Retroactivity: The Founders' View, Robert G. Natelson
Robert G. Natelson
The article explains the extent to which the Founders' Constitution permitted and prohibited retroactive legislation, and the provisions in that document relevant to the question.
A Reminder: The Constitutional Values Of Sympathy And Independence, Robert G. Natelson
A Reminder: The Constitutional Values Of Sympathy And Independence, Robert G. Natelson
Robert G. Natelson
Nearly all participants in the American Founding shared constitutiona/ values of "sympathy" and "independence." According to the ideal of sympathy, government actors should mirror the full range of popular attitudes. According to the ideal of independence, voters should remain independent of other citizens and of governmental entities, and those entities should remain independent of, and competitive with, each other. Sympathy and independence were central, not peripheral, to the Founders' Constitution, so the document cannot be interpreted properly without keeping them in view. The author provides examples of how constitutional practice might be altered had these central values not been overlooked.
James Madison And The Constitution's “Convention For Proposing Amendments", Robert G. Natelson
James Madison And The Constitution's “Convention For Proposing Amendments", Robert G. Natelson
Robert G. Natelson
This article traces the progress of James Madison's thought on the Constitution's "convention for proposing amendments as a way for states to assert themselves against the federal government. Madison saw the convention as an important part of the Constitution, and a constitutional alternative to nullification.
Treaty And Constitution. A Comparative Analysis Of An Uneasy Relationship, Theodor Jr Schilling
Treaty And Constitution. A Comparative Analysis Of An Uneasy Relationship, Theodor Jr Schilling
Theodor JR Schilling
Constitutions may be reversed by revolution. Treaty-constitutions may also be terminated by mutual consent of the contracting parties. A secession and a unilateral denunciation are, as a rule, not permissible under international law but will be recognized if effective. The only possibility to prevent a secession is to take away the social substratum of a secession i.e. to merge the peoples of the state from which the secession would take place. Such a merger allows the people, as constituent power, to adopt the treaty-constitution as its own. Such an adoption may be made in the forms of the creation of …