Law Commons^™

Cross Burning, Hate Speech, And Free Speech In America, Edward J. Eberle

Law Faculty Scholarship

No abstract provided.

Questioning Deference, Christina E. Wells

Faculty Publications

This article examines the accepted axiom that courts should defer to the government's actions during national security crises even when such actions potentially violate citizens' constitutional rights. The paper questions two assumptions underlying that axiom - first, that executive officials are best equipped to determine when security needs justify liberty infringements and, second, that judges are particularly unqualified to meddle in security issues, even when civil liberties are involved. Relying on psychological theories regarding the role that fear plays in skewing risk assessment and historical analyses of past crises, the paper argues that times of crisis lend themselves to unnecessary …

Free Exercise Of Religion In Germany And The United States, Edward J. Eberle

Law Faculty Scholarship

In this Article, Professor Edward Eberle provides a comparative overview of constitutional safeguards affecting religious freedom in Germany and the United States. Specifically the author analyzes the German and American approaches to the free exercise of religion within their respective constitutional systems. The result is an illuminating exposition that provides much insight for comparative and constitutional scholars.

In the years following the Second World War, religious freedoms in Germany developed along similar, individualist paths to those found in the United States Constitution. However, unlike the Constitution, the Basic Law's provisions touching on religious liberty are detailed and quite elaborate and …

Symbolic Counter-Speech, Howard M. Wasserman

Faculty Publications

No abstract provided.

Fun With Dick And Jane And Lawrence: A Primer On Education Privacy As Constitutional Liberty, Susan P. Stuart

Law Faculty Publications

No abstract provided.

Speech And Strife, Robert L. Tsai

Articles in Law Reviews & Other Academic Journals

The essay strives for a better understanding of the myths, symbols, categories of power, and images deployed by the Supreme Court to signal how we ought to think about its authority. Taking examples from free speech jurisprudence, the essay proceeds in three steps. First, Tsai argues that the First Amendment constitutes a deep source of cultural authority for the Court. As a result, linguistic and doctrinal innovation in the free speech area have been at least as bold and imaginative as that in areas like the Commerce Clause. Second, in turning to cognitive theory, he distinguishes between formal legal argumentation …

Fire, Metaphor, And Constitutional Myth-Making, Robert Tsai

Articles in Law Reviews & Other Academic Journals

From the standpoint of traditional legal thought, metaphor is at best a dash of poetry adorning lawyerly analysis, and at worst an unjustifiable distraction from what is actually at stake in a legal contest. By contrast, in the eyes of those who view law as a close relative of ordinary language, metaphor is a basic building block of human understanding. This article accepts that metaphor helps us to comprehend a court's decision. At the same time, it argues that metaphor plays a special role in the realm of constitutional discourse. Metaphor in constitutional law not only reinforces doctrinal categories, but …

Fire, Metaphor, And Constitutional Myth-Making, Robert L. Tsai

Faculty Scholarship

From the standpoint of traditional legal thought, metaphor is at best a dash of poetry adorning lawyerly analysis, and at worst an unjustifiable distraction from what is actually at stake in a legal contest. By contrast, in the eyes of those who view law as a close relative of ordinary language, metaphor is a basic building block of human understanding. This article accepts that metaphor helps us to comprehend a court's decision. At the same time, it argues that metaphor plays a special role in the realm of constitutional discourse. Metaphor in constitutional law not only reinforces doctrinal categories, but …

Foreword: The Ohio Constitution On The Occasion Of Its Bicentennial, Kevin F. O'Neill

Law Faculty Articles and Essays

This symposium issue of the Cleveland State Law Review publishes the papers that were presented at a conference marking the bicentennial of the Ohio Constitution. That conference, held here at Cleveland-Marshall College of Law in April 2003, examined the history and assessed the vitality of our state constitution. The conference was conceived and its planning was supervised by our Dean, Steven H. Steinglass, who has devoted significant scholarly attention to the Ohio Constitution. In light of my own endeavors in state constitutional law, both as a lawyer and as a scholar, I gladly assisted Dean Steinglass in organizing the conference. …

Diversity And The Practice Of Interest Assessment, Robert F. Nagel

Publications

No abstract provided.

The Anti-Emergency Constitution, Laurence H. Tribe, Patrick O. Gudridge

Articles

No abstract provided.

Misusing International Sources To Interpret The Constituion, Roger P. Alford

Journal Articles

This article addresses the trend toward using international sources to interpret the Constitution. While recognizing that international sources may be appropriately used as persuasive authority in certain types of constitutional analysis, this article argues that such reliance is inappropriate if done improperly. There are four misuses of international sources that serve as the focus of the article.

The first misuse of international sources - particularly evident in death penalty litigation - occurs when the global opinions of humankind are ascribed constitutional value to thwart the domestic opinions of Americans. The article suggests that international norms cannot be internalized within our …

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

Journal Articles

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 …

Of Power And Responsibility: The Political Morality Of Federal Systems, Daniel Halberstam

Articles

In comparative constitutional discourse, Americans are from Mars and Europeans from Venus; we eagerly tell our European counterparts about the U.S. constitutional experience, but rarely do we listen when they talk to us about their own. Whereas Europeans routinely examine U.S. constitutionalism as an illuminating point of comparison or contrast, as Americans, we seem convinced that we have nothing to learn from looking abroad. This Article challenges that assumption. In particular, it argues that American courts and scholars have overlooked an important alternative to the dominant interpretation of the division of powers in the United States by ignoring the theory …

The Proper Scope Of The Police Power, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In this Article, I will contend that the Constitution is not really silent at all on the proper scope of state powers; that the original meaning of what the Constitution says requires that state powers over their citizens have fairly easy to identify limits - though as with most constitutional provisions, applying these limits to particular cases requires judgment and is not a matter of strict deductive logic. This account will require me to briefly review the method of interpretation I advocate - original meaning originalism-and its limits. These limits require that interpretation of original meaning be implemented by means …

Sunsetting Judicial Opinions, Neal K. Katyal

Georgetown Law Faculty Publications and Other Works

Contemporary constitutional law, in its quest for judicial restraint, has primarily focused on "the how" of judging - what interpretive methods will constrain the decisionmaker? This Article, by contrast, focuses on the "when"- if there are reasons to think that today's judicial decisions might later prove to be problematic, then are there methods that alter the timing of those decisions' impact to produce better outcomes? This Article outlines one new method for judicial decisionmaking in the post-9/11 world. Informed by pervasive legislative practices, I contend that the Supreme Court should prospectively declare that some of its national security opinions will …

Constitutional Hardball, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

For the past several years I have been noticing a phenomenon that seems to me new in my lifetime as a scholar of constitutional law. I call the phenomenon constitutional hardball. This Essay develops the idea that there is such a practice, that there is a sense in which it is new, and that its emergence (or re-emergence) is interesting because it signals that political actors understand that they are in a position to put in place a new set of deep institutional arrangements of a sort I call a constitutional order. A shorthand sketch of constitutional hardball is this: …

The Secret Life Of The Political Question Doctrine, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

"Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court."

The irony, of course, is that Marbury v. Madison, itself, "made" a political question, and the answer the Court gave was deeply political as well. As everyone reading this essay knows, the case arose out of a bitter political controversy, and the opinion for the Court was a carefully crafted political document - "a masterwork of indirection," according to Robert McCloskey's well-known characterization, "a brilliant example of Chief Justice Marshall's capacity to sidestep danger while seeming …

Out Of Bounds, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

Lawrence v. Texas creates a crisis for inclusive constitutionalism. Too often, advocates of inclusion and tolerance wish to include only those ideas and groups with which they agree. The test for true inclusion and tolerance, however, is whether we are willing to protect groups when they engage in conduct of which we disapprove. It follows that the boundaries of inclusion cannot be established simply by moral argument; yet, any plausible version of constitutional law must use some method to bound the people and activity that it protects. Defenders of inclusive constitutionalism have not been successful in identifying a method, independent …

Madisonian Equal Protection, James S. Liebman, Brandon L. Garrett

Faculty Scholarship

James Madison is considered the "Father of the Constitution," but his progeny disappointed him. It had no effective defense against self-government's "mortal disease" – the oppression of minorities by local majorities. This Article explores Madison's writings in an effort to reclaim the deep conception of equal protection at the core of his constitutional aspirations. At the Convention, Madison passionately advocated a radical structural approach to equal protection under which the "extended republic's" broadly focused legislature would have monitored local laws and vetoed those that were parochial and "unjust." Rejecting this proposal to structure equal protection into the "interior" operation of …