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Articles 1 - 5 of 5
Full-Text Articles in Law
Taking History Seriously: Reflections On A Critique Of Amar’S Treatment Of The Ninth Amendment In His Work On The Bill Of Rights, Thomas B. Mcaffee
Taking History Seriously: Reflections On A Critique Of Amar’S Treatment Of The Ninth Amendment In His Work On The Bill Of Rights, Thomas B. Mcaffee
Scholarly Works
Dean William Treanor critiques constitutional textualism, contending that it pays too much attention to the words, grammar, and placement of clauses in the Constitution, and too little to the history leading to the adoption of the interpreted language. An important illustration is Professor Amar's treatment of the Ninth Amendment in his well-known book on the Bill of Rights. This treatment shares the perspective that history frequently sheds light on the meaning of constitutional text, but contends that the history yielding the Ninth Amendment demonstrates that it was drafted to secure the rights retained by the granting of limited federal powers—and …
Pleasant Grove V. Summum: Losing The Battle To Win The War, Ian C. Bartrum
Pleasant Grove V. Summum: Losing The Battle To Win The War, Ian C. Bartrum
Scholarly Works
This short essay explores the potential doctrinal implications of the Supreme Court's recent decision in Pleasant Grove v. Summum.
Of Historiography And Constitutional Principle: Jefferson’S Letter To The Danbury Baptists, Ian C. Bartrum
Of Historiography And Constitutional Principle: Jefferson’S Letter To The Danbury Baptists, Ian C. Bartrum
Scholarly Works
This article examines the ways that the Supreme Court has used Thomas Jefferson's letter to the Danbury Baptists (a wall of separation between church and state) as a rhetorical symbol. It finds the letter at the heart of the Court's debate over competing theories of religious neutrality. The article then explores the treatment the letter has received in several leading academic histories, and concludes that professional historians have largely tailored their arguments to match the Supreme Court's ideological divide. The article concludes that, because the goals of historical argument and legal argument are fundamentally different, this incestuous kind of relationship …
Same-Sex Marriage In The Heartland: The Case For Legislative Minimalism In Crafting Religious Exemptions, Ian C. Bartrum
Same-Sex Marriage In The Heartland: The Case For Legislative Minimalism In Crafting Religious Exemptions, Ian C. Bartrum
Scholarly Works
This commentary cousels legislative caution in creating exemptions to Iowa's nondiscrimination law for those with religious objections to same-sex marriage.
The Constitutional Canon As Argumentative Metonymy, Ian C. Bartrum
The Constitutional Canon As Argumentative Metonymy, Ian C. Bartrum
Scholarly Works
This article builds on Philip Bobbitt's Wittgensteinian insights into constitutional argument and law. The author examines the way that we interact with canonical texts as we construct arguments in the forms that Bobbitt has described. The author contends that these texts serve as metonyms for larger sets of associated principles and values, and that their invocation usually is not meant to point to the literal meaning of the text itself. This conception helps explain how a canonical text's meaning in constitutional argument can evolve over time, and hopefully offers the creative practitioner some insight into the kinds of arguments that …