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Full-Text Articles in Law
Recovering The Lost General Welfare Clause, David S. Schwartz
Recovering The Lost General Welfare Clause, David S. Schwartz
William & Mary Law Review
The General Welfare Clause of Article I, Section 8, Clause 1 of the Constitution enumerates a power to “provide for the common defense and general welfare.” A literal interpretation of this clause (“the general welfare interpretation”) would authorize Congress to legislate for any national purpose, and therefore to address all national problems— for example, the COVID-19 pandemic—in ways that would be precluded under the prevailing understanding of limited enumerated powers. But conventional doctrine rejects the general welfare interpretation and construes the General Welfare Clause to confer the so-called “Spending Power,” a power only to spend, but not to regulate, for …
A Game Theoretic Analysis Of Marbury V Madison: The Origins Of Judicial Review, Daniel R. Debutts
A Game Theoretic Analysis Of Marbury V Madison: The Origins Of Judicial Review, Daniel R. Debutts
James Blair Historical Review
The presented research seeks to further our understanding of the Supreme Court’s formation of judicial review through an historical and game theoretic analysis. Marbury v Madison (1803) has long been hailed as a foundational case in which Chief Justice Marshall outfoxed President Jefferson in a duel of wits. Yet, despite this claim, there are surprisingly few papers that apply modern game-theory to what is widely considered a landmark—and rather iconic—supreme court case. In my paper, I review this notion and, in doing so, come to better understand inter-institutional relationships and their corresponding game theoretic strategies. More importantly, however, I suggest …
A Century In The Making: The Glorious Revolution, The American Revolution, And The Origins Of The U.S. Constitution’S Eighth Amendment, John D. Bessler
A Century In The Making: The Glorious Revolution, The American Revolution, And The Origins Of The U.S. Constitution’S Eighth Amendment, John D. Bessler
William & Mary Bill of Rights Journal
The sixteen words in the U.S. Constitution’s Eighth Amendment have their roots in England’s Glorious Revolution of 1688–89. This Article traces the historical events that initially gave rise to the prohibitions against excessive bail, excessive fines, and cruel and unusual punishments. Those three proscriptions can be found in the English Declaration of Rights and in its statutory counterpart, the English Bill of Rights. In particular, the Article describes the legal cases and draconian punishments during the Stuart dynasty that led English and Scottish parliamentarians to insist on protections against cruelty and excessive governmental actions. In describing the grotesque punishments of …
A Constitution Between Past And Future, Kim Lane Scheppele
A Constitution Between Past And Future, Kim Lane Scheppele
William & Mary Law Review
No abstract provided.
Constitution Making After National Catastrophes: Germany In 1949 And 1990, Inga Markovits
Constitution Making After National Catastrophes: Germany In 1949 And 1990, Inga Markovits
William & Mary Law Review
No abstract provided.
A Brief History Of The Fifth Amendment Guarantee Against Double Jeopardy, David S. Rudstein
A Brief History Of The Fifth Amendment Guarantee Against Double Jeopardy, David S. Rudstein
William & Mary Bill of Rights Journal
No abstract provided.
Modernizing The Law Of Open-Air Speech: The Hughes Court And The Birth Of Content-Neutral Balancing, William E. Lee
Modernizing The Law Of Open-Air Speech: The Hughes Court And The Birth Of Content-Neutral Balancing, William E. Lee
William & Mary Bill of Rights Journal
No abstract provided.
Establishment And Disestablishment At The Founding, Part I: Establishment Of Religion, Michael W. Mcconnell
Establishment And Disestablishment At The Founding, Part I: Establishment Of Religion, Michael W. Mcconnell
William & Mary Law Review
No abstract provided.
Yet Another Constitutional Crisis?, Keith E. Whittington
Yet Another Constitutional Crisis?, Keith E. Whittington
William & Mary Law Review
The recent presidential impeachment and the postelection controversy each led many to fear that the United States had either already entered or was about to enter a constitutional crisis. Such concerns seem overwrought. This Article will use those events as a foil for examining the nature of constitutional crises. The Article will distinguish two types of constitutional crises and consider several potential crises in American history, clarifying how crises occur and how they can be averted. Constitutional crises in the United States are rare in large part because of the robustness of the country's informal constitutional practices, reasonably good constitutional …
Free? Exercise, Marci A. Hamilton
The State Of The Canon In Constitutional Law: Lessons From The Jurisprudence Of John Marshall, David E. Marion
The State Of The Canon In Constitutional Law: Lessons From The Jurisprudence Of John Marshall, David E. Marion
William & Mary Bill of Rights Journal
Constitutional law has been an active battlefield as competing groups within the academy seek to deconstruct, reconstruct, and/or relegitimize the teaching and practice of law in the United States. Much of the rhetoric of the debate is couched in the language of rights. There is a danger that diminished attention to powers in the rhetoric and teaching of constitutional law may compromise sober and moderate constitutional reasoning. By reinvigorating reflection on powers-related issues, the legal profession can do its part to promote sobriety, and hence an added dose of prudence, in constitutional reflection and discourse by a democratic citizenry whose …
The Founders Go On-Line: An Original Intent Solution To A Jurisdictional Dilemma, Christine G. Heslinga
The Founders Go On-Line: An Original Intent Solution To A Jurisdictional Dilemma, Christine G. Heslinga
William & Mary Bill of Rights Journal
The Internet has created a blossoming cyber-economy and a new way of conducting business. Unfortunately for those looking for jurisdictional certainty, however, cyberspace also effectively eliminates geographic boundaries. The unprecedented circumstances set by this new frontier have put federal courts in the unenviable position of deciding whether Internet-based cases meet diversity jurisdiction requirements. Examining the constitutional history and recent use of diversity, this Note argues that the Founders did not foresee an era where every contract or sales case would end up in federal court; rather, they intended diversity jurisdiction to be a rare and perhaps temporary proposition. The author …
Lochner, Parity, And The Chinese Laundry Cases, David E. Bernstein
Lochner, Parity, And The Chinese Laundry Cases, David E. Bernstein
William & Mary Law Review
No abstract provided.
The Fiscal Powers And The 1930s: Entrenchment, John Harrison
The Fiscal Powers And The 1930s: Entrenchment, John Harrison
William & Mary Law Review
No abstract provided.
The Inevitable Infidelities Of Constitutional Translation: The Case Of The New Deal, John O. Mcginnis
The Inevitable Infidelities Of Constitutional Translation: The Case Of The New Deal, John O. Mcginnis
William & Mary Law Review
No abstract provided.
Lost Fidelities, Barry Cushman
Ackermania: The Quest For A Common Law Of Higher Lawmaking, Michael J. Gerhardt
Ackermania: The Quest For A Common Law Of Higher Lawmaking, Michael J. Gerhardt
William & Mary Law Review
No abstract provided.
The Founders And The President's Authority Over Foreign Affairs, H. Jefferson Powell
The Founders And The President's Authority Over Foreign Affairs, H. Jefferson Powell
William & Mary Law Review
No abstract provided.
The Constitution In Congress: Jefferson And The West, 1801-1809, David P. Currie
The Constitution In Congress: Jefferson And The West, 1801-1809, David P. Currie
William & Mary Law Review
No abstract provided.
Of Pitcairn's Island And American Constitutional Theory, Dan T. Coenen
Of Pitcairn's Island And American Constitutional Theory, Dan T. Coenen
William & Mary Law Review
No abstract provided.
Cabining The Constitutional History Of The New Deal In Time, G. Edward White
Cabining The Constitutional History Of The New Deal In Time, G. Edward White
Michigan Law Review
A Review of William E, Leuchtenburg, The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt
Constitutional Opinions: Aspects Of The Bill Of Rights, Kenneth F. Sparks
Constitutional Opinions: Aspects Of The Bill Of Rights, Kenneth F. Sparks
Michigan Law Review
A Review of Constitutional Opinions: Aspects of the Bill of Rights by Leonard W. Levy
The Constitution And The Canon, Michael T. Gilmore
The Constitution And The Canon, Michael T. Gilmore
William & Mary Law Review
No abstract provided.
1787: The Constitution And "The Curse Of Heaven", Walter E. Dellinger Iii
1787: The Constitution And "The Curse Of Heaven", Walter E. Dellinger Iii
William & Mary Law Review
No abstract provided.
The Studied Ambiguity Of Horwitz' Legal History, G. Edward White
The Studied Ambiguity Of Horwitz' Legal History, G. Edward White
William & Mary Law Review
No abstract provided.
Liberty And Learning, James Morton Smith
Liberty And Learning, James Morton Smith
William & Mary Law Review
No abstract provided.
The Origins Of The Religion Clause Of The Constitution, Philip B. Kurland
The Origins Of The Religion Clause Of The Constitution, Philip B. Kurland
William & Mary Law Review
No abstract provided.
Constitutional Retrospect: First Series Of Cutler Lectures Revisted, William F. Swindler
Constitutional Retrospect: First Series Of Cutler Lectures Revisted, William F. Swindler
William & Mary Law Review
No abstract provided.
William And Mary Bicentennial Commemoration: Virginia Constitutional Commentaries: The Formative Period, 1776-1803, William F. Swindler
William And Mary Bicentennial Commemoration: Virginia Constitutional Commentaries: The Formative Period, 1776-1803, William F. Swindler
William & Mary Law Review
No abstract provided.
The President's Power To Pardon: A Constitutional History, William F. Duker
The President's Power To Pardon: A Constitutional History, William F. Duker
William & Mary Law Review
No abstract provided.