Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 30 of 86
Full-Text Articles in Law
The Inclusiveness Of The New Originalism, James E. Fleming
The Inclusiveness Of The New Originalism, James E. Fleming
Fordham Law Review
No abstract provided.
Editors’ Foreword, Editors
The Gravitational Force Of Originalism, Randy E. Barnett
The Gravitational Force Of Originalism, Randy E. Barnett
Fordham Law Review
In Part I of this Article, I describe four aspects of the New Originalism: First, New Originalism is about identifying the original public meaning of the Constitution rather than the original Framers’ intent. Second, the interpretive activity of identifying the original public meaning of the text is a purely descriptive empirical inquiry. Third, there is also a normative tenet of the New Originalism that contends that the original public meaning of the text should be followed. Finally, distinguishing between the activities of interpretation and construction identifies the limit of the New Originalism, which is only a theory of interpretation. In …
On What Distinguishes New Originalism From Old: A Jurisprudential Take, Mitchell N. Berman, Kevin Toh
On What Distinguishes New Originalism From Old: A Jurisprudential Take, Mitchell N. Berman, Kevin Toh
Fordham Law Review
No abstract provided.
Meaning And Belief In Constitutional Interpretation, Andrei Marmor
Meaning And Belief In Constitutional Interpretation, Andrei Marmor
Fordham Law Review
No abstract provided.
Deferentialism: A Post–Originalist Theory Of Legal Interpretation, Scott Soames
Deferentialism: A Post–Originalist Theory Of Legal Interpretation, Scott Soames
Fordham Law Review
No abstract provided.
Originalism, Vintage Or Nouveau: “He Said, She Said” Law, Tara Smith
Originalism, Vintage Or Nouveau: “He Said, She Said” Law, Tara Smith
Fordham Law Review
No abstract provided.
The New Originalism And The Uses Of History, Jack M. Balkin
The New Originalism And The Uses Of History, Jack M. Balkin
Fordham Law Review
Central to the new originalism is the distinction between constitutional interpretation and constitutional construction. Interpretation tries to determine the Constitution’s original communicative content, while construction builds out doctrines, institutions, and practices over time. Most of the work of constitutional lawyers and judges is constitutional construction.
The distinction between interpretation and construction has important consequences for constitutional theory. In particular, it has important consequences for longstanding debates about how lawyers use history and should use history.
First, construction, not interpretation, is the central case of constitutional argument, and most historical argument occurs in the construction zone.
Second, although people often associate …
Meaning And Understanding In The History Of Constitutional Ideas: The Intellectual History Alternative To Originalism, Saul Cornell
Meaning And Understanding In The History Of Constitutional Ideas: The Intellectual History Alternative To Originalism, Saul Cornell
Fordham Law Review
No abstract provided.
Original Meaning, Precedent, And Popular Sovereignty?: Whittington Et Al. V. Lincoln Et Al., Leslie F. Goldstein
Original Meaning, Precedent, And Popular Sovereignty?: Whittington Et Al. V. Lincoln Et Al., Leslie F. Goldstein
Fordham Law Review
No abstract provided.
Accepting Contested Meanings, Bernadette Meyler
Accepting Contested Meanings, Bernadette Meyler
Fordham Law Review
No abstract provided.
The Observer Effect: National Security Litigation, Executive Policy Changes, And Judicial Deference, Ashley S. Deeks
The Observer Effect: National Security Litigation, Executive Policy Changes, And Judicial Deference, Ashley S. Deeks
Fordham Law Review
The national security deference debate has reached a stalemate. Those favoring extensive deference to executive branch national security decisions celebrate the limited role courts have played in reviewing those policies. The executive, they contend, is constitutionally charged with such decisions and structurally better suited than the judiciary to make them. Those who bemoan such deference fear for individual rights and an imbalance in the separation of powers. Yet both sides assume that the courts’ role is minimal. Both sides are wrong.
This Article shows why. While courts rarely intervene in national security disputes, the Article demonstrates that they nevertheless play …
Originalism: A Critical Introduction, Keith E. Whittington
Originalism: A Critical Introduction, Keith E. Whittington
Fordham Law Review
The theory of originalism is now well into its second wave. Originalism first came to prominence in the 1970s and 1980s as conservative critics reacted to the decisions of the Warren Court, and the Reagan Administration embraced originalism as a check on judicial activism. A second wave of originalism has emerged since the late 1990s, responding to earlier criticisms and reconsidering earlier assumptions and conclusions. This Article assesses where originalist theory currently stands. It outlines the points of agreement and disagreement within the recent originalist literature and highlights the primary areas of continuing separation between originalists and their critics.
Originalism, The Why And The What, Larry Alexander
Originalism, The Why And The What, Larry Alexander
Fordham Law Review
No abstract provided.
Originalism And Constitutional Construction, Lawrence B. Solum
Originalism And Constitutional Construction, Lawrence B. Solum
Fordham Law Review
Constitutional interpretation is the activity that discovers the communicative content or linguistic meaning of the constitutional text. Constitutional construction is the activity that determines the legal effect given the text, including doctrines of constitutional law and decisions of constitutional cases or issues by judges and other officials. The interpretation–construction distinction, frequently invoked by contemporary constitutional theorists and rooted in American legal theory in the nineteenth and twentieth centuries, marks the difference between these two activities.
This Article advances two central claims about constitutional construction. First, constitutional construction is ubiquitous in constitutional practice. The central warrant for this claim is conceptual: …
The New Originalism And The Foreign Affairs Constitution, Andrew Kent
The New Originalism And The Foreign Affairs Constitution, Andrew Kent
Fordham Law Review
No abstract provided.
Dna And Due Process, Brandon L. Garrett
Dna And Due Process, Brandon L. Garrett
Fordham Law Review
The U.S. Supreme Court in District Attorney’s Office v. Osborne confronted novel and complex constitutional questions regarding the postconviction protections offered to potentially innocent convicts. Two decades after DNA testing exonerated the first inmate in the United States, the Court heard its first claim by a convict seeking DNA testing that could prove innocence. I argue that, contrary to early accounts, the Court did not reject a constitutional right to postconviction DNA testing. Despite language suggesting the Court would not “constitutionalize the issue” by announcing an unqualified freestanding right, Chief Justice Roberts’s majority opinion proceeded to carefully fashion an important, …
Assessing Fourth Amendment Challenges To Dna Extraction Statutes After Samson V. California, Charles J. Nerko
Assessing Fourth Amendment Challenges To Dna Extraction Statutes After Samson V. California, Charles J. Nerko
Fordham Law Review
DNA plays an indespensable role in modern law enforcement, and courts uniformly find that DNA extraction statutes targeting criminals satisfy the Fourth Amendment. Courts differ on which Fourth Amendment test--totality of the circumstances or special needs--ought to be employed in this context. This Note concludes the courts should apply Samson v. California's less stringent totality of the circumstances test to analyze DNA extraction statutes in order to maintain the integrity of the special needs test.
Harmless Constitutional Error And The Institutional Significance Of The Jury, Roger A. Fairfax, Jr.
Harmless Constitutional Error And The Institutional Significance Of The Jury, Roger A. Fairfax, Jr.
Fordham Law Review
Appellate harmless error review, an early twentieth-century innovation prompted by concerns of efficiency and finality, had been confined to nonconstitutional trial errors until forty years ago, when the U.S. Supreme Court extended the harmless error rule to trial errors of constitutional proportion. Even as criminal procedural protections were expanded in the latter half of the twentieth century, the harmless error rule operated to dilute the effect of many of these constitutional guarantees--the Sixth Amendment right to jury trial being no exception. However, while a trade-off between important process values and the Constitution's protection of individual rights is inherent in the …
Keynote Address, A Community Of Reason And Rights, Harold Hongju Koh, William Michael Treanor
Keynote Address, A Community Of Reason And Rights, Harold Hongju Koh, William Michael Treanor
Fordham Law Review
No abstract provided.
Getting Beyond The Crossfire Phenomenon: A Militant Moderate's Take On The Role Of Foreign Authority In Constitutional Interpretation, Melissa A. Waters
Getting Beyond The Crossfire Phenomenon: A Militant Moderate's Take On The Role Of Foreign Authority In Constitutional Interpretation, Melissa A. Waters
Fordham Law Review
No abstract provided.
Lower Courts And Constitutional Comparativism, Roger P. Alford
Lower Courts And Constitutional Comparativism, Roger P. Alford
Fordham Law Review
No abstract provided.
The Paradoxical Structure Of Constitutional Litigation, Pamela S. Karlan
The Paradoxical Structure Of Constitutional Litigation, Pamela S. Karlan
Fordham Law Review
No abstract provided.
Process Theory, Majoritarianism, And The Original Understanding, William Michael Treanor
Process Theory, Majoritarianism, And The Original Understanding, William Michael Treanor
Fordham Law Review
No abstract provided.
Minimalism, Perfectionism, And Common Law Constitutionalism: Reflections On Sunstein's And Fleming's Efforts To Find The Sweet Spot In Constitutional Theory, Benjamin C. Zipursky
Minimalism, Perfectionism, And Common Law Constitutionalism: Reflections On Sunstein's And Fleming's Efforts To Find The Sweet Spot In Constitutional Theory, Benjamin C. Zipursky
Fordham Law Review
No abstract provided.
Valuing Autonomy, Youngjae Lee
Privacy, Minimalism, And Perfectionism, Charles A. Kelbley
Privacy, Minimalism, And Perfectionism, Charles A. Kelbley
Fordham Law Review
No abstract provided.
Above The Law? The Constitutionality Of The Ministerial Exemption From Antidiscrimination Law, Caroline Mala Corbin
Above The Law? The Constitutionality Of The Ministerial Exemption From Antidiscrimination Law, Caroline Mala Corbin
Fordham Law Review
This Article critiques the constitutional underpinnings of the “ministerial exemption,” which grants religious organizations immunity from discrimination suits brought by “ministerial” employees. These employees, who range from parochial schoolteachers to church music directors, cannot assert Title VII race or sex discrimination claims against their religious employers--regardless of whether or not religious belief motivated the discrimination. Lower courts and commentators assert that the right of church autonomy created by the religion clauses requires this result, but the Supreme Court has never blessed (nor rejected) it. This Article argues there is no place for the ministerial exemption under the Supreme Court's current …
The Machine Gun Statute: Its Controversial Past And Possible Future, Leslie Wepner
The Machine Gun Statute: Its Controversial Past And Possible Future, Leslie Wepner
Fordham Law Review
No abstract provided.
Displacing Dissent: The Role Of "Place" In First Amendment Jurisprudence, Thomas P. Crocker
Displacing Dissent: The Role Of "Place" In First Amendment Jurisprudence, Thomas P. Crocker
Fordham Law Review
No abstract provided.