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Full-Text Articles in Law
The Original Understanding Of Constitutional Legitimacy, Ilan Wurman
The Original Understanding Of Constitutional Legitimacy, Ilan Wurman
BYU Law Review
This Article argues that three influential schools of originalism, which we might label libertarian, progressive, and conservative, adhere to particular understandings of constitutional legitimacy, which then inform their particular constitutional hermeneutics. The Article demonstrates that as originally understood by the Founders, however, constitutional legitimacy depended on all three conceptions advocated by these schools of thought—that is, the Constitution had to protect natural rights, it had to enable self-government, and it had to be ratified by popular sovereignty. Further, the Article gives considerable treatment—remarkably for the first time in the law review literature— to James Madison’s letter in response to Thomas …
Originalism Talk: A Legal History, Mary Ziegler
Originalism Talk: A Legal History, Mary Ziegler
BYU Law Review
Progressives have long recognized the tremendous political appeal of originalism. For many scholars, originalism appears to have succeeded because it achieves results consistent with conservative values but promises judicial neutrality to the public. By drawing on new historical research on anti-abortion constitutionalism, this Article argues for a radically different understanding of the originalist ascendancy. Contrary to what we often think, conservative social movements at times made significant sacrifices in joining an originalist coalition. These costs were built in to what this Article calls originalism talk—the use of arguments, terms, and objectives associated with conservative originalism.
Scholars have documented the costs …
What Lies Beneath: Interpretive Methodology, Constitutional Authority, And The Case Of Originalism, Christopher J. Peters
What Lies Beneath: Interpretive Methodology, Constitutional Authority, And The Case Of Originalism, Christopher J. Peters
BYU Law Review
No abstract provided.
Reconciling Originalism With The Father Of Conservatism: How Edmund Burke Answers The Disruption Dilemma In N.L.R.B. V. Noel Canning, Brad Masters
BYU Law Review
No abstract provided.
The Shinto Cases: Religion, Culture, Or Both—The Japanese Supreme Court And Establishment Of Religion Jurisprudence, Frank S. Ravitch
The Shinto Cases: Religion, Culture, Or Both—The Japanese Supreme Court And Establishment Of Religion Jurisprudence, Frank S. Ravitch
BYU Law Review
No abstract provided.
The Unconstitutionality Of Religious Vilification Laws In Australia: Why Religious Vilification Laws Are Contrary To The Implied Freedom Of Political Communication Affirmed In The Australian Constitution, Augusto Zimmerman Dr.
The Unconstitutionality Of Religious Vilification Laws In Australia: Why Religious Vilification Laws Are Contrary To The Implied Freedom Of Political Communication Affirmed In The Australian Constitution, Augusto Zimmerman Dr.
BYU Law Review
This article explains the weakness of the argument that religious vilification laws promote harmony and tolerance among religious groups. Rather, they are based on a form of postmodern theory that denies the existence of truth and could be used as a weapon by certain individuals to silence any criticism of their beliefs. These laws have become an invitation to people with extreme views to avoid debate by claiming that they, rather than their beliefs, have been attacked. The author then explains the philosophical underpinnings of religious vilification laws and argues that there is no a priori reason why religious speech …
“. . . Speak Now Or Forever Hold Your Peace . . .” —The Influence Of Constitutional Argument On Same-Sex Marriage Legislation Debates In Australia, Neville Rochow
BYU Law Review
No abstract provided.
The Unnecessary And Restrictive Constitutional Amendments Concerning Religious Freedom In Mexico, Javier Saldaña Serrano
The Unnecessary And Restrictive Constitutional Amendments Concerning Religious Freedom In Mexico, Javier Saldaña Serrano
BYU Law Review
No abstract provided.
Liberal Democracy And The Right To Religious Freedom, Aldir Guedes Soriano
Liberal Democracy And The Right To Religious Freedom, Aldir Guedes Soriano
BYU Law Review
Foremost, this paper examines the current situation of the rights to religious freedom and democracy around the world, which deserve attention and concern. Civil liberties are currently in crossfire. This article examines the foundations of the right to religious freedom. Depending on the philosophical foundations, there are two different rationales for the right to religious freedom: liberal and anti-liberal. According to the liberal tradition, the best reason to protect religious freedom rests upon the autonomy of the individual conscience. It is clear that a constitutional democracy does not allow the establishment of any religion by the government, using either executive …