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Full-Text Articles in Law
The Case For Original Intent, Jamal Greene
The Case For Original Intent, Jamal Greene
Faculty Scholarship
This Article seeks to situate the constitutional culture's heavy reliance on the Convention debates within an academic environment that is generally hostile to original intent arguments. The Article argues that intentionalist-friendly sources like the Convention records and The Federalist remain important not because they supply evidence of original meaning but rather because the practice of advancing historical arguments is best understood as a rhetorical exercise that derives persuasive authority from the heroic character of the Founding generation. This exercise fits within a long tradition of originalist argument and need not be abandoned in the quest for a more perfect originalism.
Some Effectual Power: The Quantity And Quality Of Decisionmaking Required Of Article Iii Courts, James S. Liebman, William F. Ryan
Some Effectual Power: The Quantity And Quality Of Decisionmaking Required Of Article Iii Courts, James S. Liebman, William F. Ryan
Faculty Scholarship
Did the Framers attempt to establish an effectual power in the national judiciary to void state law that is contrary tofederal law, yet permit Congress to decide whether or not to confer federal jurisdiction over cases arising under federal law? Does the Constitution, then, authorize its own destruction? This Article answers "yes" to the first question, and "no" to the second. Based on a new study of the meticulously negotiated compromises that produced the texts of Article HI and the Supremacy Clause, and a new synthesis of several classic Federal Courts cases, the Article shows that, by self-conscious constitutional design, …