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Full-Text Articles in Law

An Originalism For Foreign Affairs, Ingrid Wuerth Oct 2008

An Originalism For Foreign Affairs, Ingrid Wuerth

Vanderbilt Law School Faculty Publications

Legal scholarship on foreign affairs frequently focuses on the Constitution's text and original meaning, but generally does not fully engage debates about originalism as a method of modern constitutional interpretation. For its part, much of the scholarship defending originalism as a methodology has said little explicitly about foreign affairs. This short symposium contribution describes three contemporary normative arguments in favor of originalism - those advanced by Randy Barnett, Keith Whittington, and John McGinnis and Michael Rappaport - and then considers their application to foreign affairs. It concludes that these arguments are at best underdeveloped and at worst weak when it …


The Odyssey Of Cass Sunstein, James E. Fleming Jul 2008

The Odyssey Of Cass Sunstein, James E. Fleming

Faculty Scholarship

I am delighted to participate in this symposium honoring and criticizing the scholarship of Cass Sunstein. Let me begin by stating something so obvious that we typically don't say it: Cass is the most remarkably thoughtful, constructive, and productive scholar of his (and my) generation, the generation of scholars born around the time that Brown v. Board of Education1 was decided. No one has addressed a wider range of important subjects or made a more substantial contribution to our understanding of law. I have been fruitfully engaging with his scholarship from my first article 2 to my two recent books.3 …


When Should Original Meanings Matter?, Richard A. Primus Jan 2008

When Should Original Meanings Matter?, Richard A. Primus

Articles

Constitutional theory lacks an account of when each of the familiar sources of authority-text, original meaning, precedent, and so on-should be given weight. The dominant tendency is to regard all sources as potentially applicable in every case. In contrast, this Article proposes that each source of authority is pertinent in some categories of cases but not in others, much as a physical tool is appropriate for some but not all kinds of household tasks. The Article then applies this approach to identify the categories of cases in which original meaning is, or is not, a valid factor in constitutional decisionmaking.


What's A President To Do? Interpreting The Constitution In The Wake Of Bush Administration Abuses, Dawn E. Johnsen Jan 2008

What's A President To Do? Interpreting The Constitution In The Wake Of Bush Administration Abuses, Dawn E. Johnsen

Articles by Maurer Faculty

President George W. Bush and his executive branch lawyers have earned widespread criticism for extreme positions and practices regarding the scope of presidential authority. The war on terror that followed the September 11, 2001 terrorist attacks provided the context for their most controversial claims of unilateral authority: to override legal prohibitions on the use of torture and cruel, inhuman and degrading treatment; to hold "enemy combatants" indefinitely without access to counsel or any opportunity to challenge their detention; and to engage in domestic electronic surveillance without a court order. Our nation's welfare and integrity depend upon continued evaluation, response, and, …


The Twenty Year Test: Principles For An Enduring Counterterrorism Legal Architecture, James E. Baker Jan 2008

The Twenty Year Test: Principles For An Enduring Counterterrorism Legal Architecture, James E. Baker

Georgetown Law Faculty Publications and Other Works

The United States faces three enduring terrorism-related threats. First, there is the realistic prospect of additional attacks in the United States including attacks using weapons of mass destruction (“WMD”). Second, in responding to this threat, we may undermine the freedoms that enrich our lives, the tolerance that marks our society, and the democratic values that define our government. Third, if we are too focused on terrorism, we risk losing sight of this century’s other certain threats as well as the capacity to respond to them, including the state proliferation of nuclear weapons, nation-state rivalry, pandemic disease, oil dependency, and environmental …


Constitutional Clichés, Randy E. Barnett Jan 2008

Constitutional Clichés, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Popular discourse on constitutional interpretation and judicial review tend to employ a series of catch phrases that have become constitutional clichés. Phrases such as “judicial activism,” “judicial restraint,” “strict construction,” “not legislating from the bench,” “Framers’ intent,” the “dead hand of the past,” and “stare decisis” so dominate public commentary on the Constitution and the courts that quite often that is all one hears. Unfortunately, even law professors are not immune. There was a time when each of these catch phrases meant something and, although each could mean something again, in current debates all have become trite and largely devoid …


Giving The Constitution To The Courts, Jamal Greene Jan 2008

Giving The Constitution To The Courts, Jamal Greene

Faculty Scholarship

Judicial supremacy is the new judicial review. From the time Alexander Bickel introduced the term "countermajoritarian difficulty" in 1962 until very recently, justifying judicial authority to strike down legislation in a nation committed to democratic self-government was the central problem of constitutional theory. But many who had satisfied themselves as to the legitimacy of judicial review have since taken up the related but distinct question of whether, though legitimate, constitutional interpretation should be the exclusive province of the judiciary. That is, is it ever appropriate to locate constitutional interpretive authority outside of constitutional courts, whether within the coordinate branches of …


The Choice Between Madison And Fdr, Randy E. Barnett Jan 2008

The Choice Between Madison And Fdr, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

This exchange is about three clauses that have often been used by the courts since the New Deal to expand federal power: the Commerce Clause, the Necessary and Proper Clause, and the Taxation Clause, from which the spending power has (at least until today) been construed. This Essay addresses the originalist interpretation of the Necessary and Proper Clause.