Law Commons^™

New York Times V. Sullivan And The Rhetorics Of Race: A Look At The Briefs, Oral Arguments, And Opinions, Carlo A. Pedrioli

Carlo A. Pedrioli

Given the strife of the Civil Rights Movement that surrounded the case, this article looks back at the use of race in New York Times v. Sullivan. Specifically, the article examines how the advocates, led by Herbert Wechsler for the Times, I. H. Wachtel, William Rogers, and Samuel Pierce for the four ministers, and Roland Nachman for Sullivan, dealt with race in their rhetorics to the Court, both in their merits briefs and their oral arguments, and also how the justices used race in their opinions. Although Justice William Brennan did not explicitly focus on race in his opinion for …

The Origins And Meaning Of “Vacancies That May Happen During The Recess” In The Constitution’S Recess Appointments Clause, Robert G. Natelson

Robert G. Natelson

There has been longstanding uncertainty about the meaning of “the Recess” and “Vacancies that may happen” in the Constitution’s Recess Appointments Clause. This Article finds that both “the Recess” and close variants of “Vacancies that may happen” were standard terms in Founding-Era legislative practice, and appear copiously in legislative records. Those records inform us that “the Recess” means only the intersession recess and that a vacancy “happens” only when it first arises.

Founding-Era Conventions And The Meaning Of The Constitution’S “Convention For Proposing Amendments”, Robert G. Natelson

Robert G. Natelson

Under Article V of the U.S. Constitution, two thirds of state legislatures may require Congress to call a “Convention for proposing Amendments.” Because this procedure has never been used, commentators frequently debate the composition of the convention and the rules governing the application and convention process. However, the debate has proceeded almost entirely without knowledge of the many multi-colony and multi-state conventions held during the eighteenth century, of which the Constitutional Convention was only one. These conventions were governed by universally-accepted convention practices and protocols. This Article surveys those conventions and shows how their practices and protocols shaped the meaning …

Slaves To Contradictions: 13 Myths That Sustained Slavery, Wilson Huhn

Wilson R. Huhn

People have a fundamental need to think of themselves as “good people.” To achieve this we tell each other stories – we create myths – about ourselves and our society. These myths may be true or they may be false. The more discordant a myth is with reality, the more difficult it is to convince people to embrace it. In such cases to sustain the illusion of truth it may be necessary to develop an entire mythology – an integrated web of mutually supporting stories. This paper explores the system of myths that sustained the institution of slavery in the …

Dispelling The Fog About Direct Taxation, James Campbell

James Campbell

A full interpretation of capitation taxes in their historical context is here used as the key to a fresh understanding of the nature and practice of apportioned direct taxation under the Constitution. Contrary to common misconceptions, it appears that none of the key elements of the Federal powers of direct taxation – capitations, other direct taxes, and apportionment – are of uncertain meaning, or no longer of any relevance because of the abolition of slavery. Evidence for these conclusions is drawn from historical studies of taxation, records of the Constitutional Convention, Federal and state tax statutes of the period, contemporaneous …

Reducing The Drug War's Damage To Government Budgets, David B. Kopel, Trevor Burrus

David B Kopel

This Article examines ways that governments can mitigate the economic damage caused by the drug war. Part I details four specific legal reforms enacted in Colorado, which aim to reduce the problems of over-criminalization: Requiring a fiscal note for the creation of new statutory crimes; reducing drug possession from a felony to a misdemeanor; narrowing the scope of 'three strikes' laws, and; adjusting old sentences in light of new laws.

Part II explores the fiscal benefits of ending prohibition, such as reduced law enforcement costs and substantially increased tax revenues.

Part III analyzes the conflict between congressionally-imposed prohibition, and state …

How The British Gun Control Program Precipitated The American Revolution, David B. Kopel

David B Kopel

Abstract: This Article chronologically reviews the British gun control which precipitated the American Revolution: the 1774 import ban on firearms and gun powder; the 1774-75 confiscations of firearms and gun powder, from individuals and from local governments; and the use of violence to effectuate the confiscations. It was these events which changed a situation of rising political tension into a shooting war. Each of these British abuses provides insights into the scope of the modern Second Amendment.

From the events of 1774-75, we can discern that import restrictions or bans on firearms or ammunition are constitutionally suspect — at least …

Constructing The Other: U.S. Muslims, Proposed Anti-Sharia Law, And The Constitutional Consequences Of Volatile Intercultural Rhetoric, Carlo A. Pedrioli

Carlo A. Pedrioli

Recently, legislators have proposed, discussed, and passed various laws that aimed to limit the use of foreign law, international law, and Sharia (a branch of Islamic law) in state court systems. Because it became law, one proposed state constitutional amendment that rhetorically linked Sharia to foreign and international law is of particular note. In the 2010 midterm elections, Oklahoma passed State Question 755 (SQ 755), a constitutional amendment that aimed to place restrictions on the use of foreign law, international law, and Sharia in Oklahoma courts.

Laws like Oklahoma’s State Question 755 are problematic for a variety of reasons. One …

“Health Laws Of Every Description”: John Marshall’S Ruling On A Federal Health Care Law, David B. Kopel, Robert G. Natelson

David B Kopel

If John Marshall, the greatest of Chief Justices, were to hear a challenge to the constitutionality of the Patient Protection and Affordable Care Act of 2010, how would he rule? Would the nationalist justice who, according to the New Deal Supreme Court, “described the Federal commerce power with a breadth never yet exceeded,” agree that federal control of health care was within that power?

In the fictional opinion below, Marshall rules on the constitutionality of a bill similar to the Patient Protection and Affordable Care Act.

We constructed this opinion chiefly from direct quotation and paraphrases of Marshall’s own words, …

Children's Oppression, Rights And Liberation, Samantha Godwin

Samantha Godwin

This paper advances a radical and controversial analysis of the legal status of children. I argue that the denial of equal rights and equal protection to children under the law is inconsistent with liberal and progressive beliefs about social justice and fairness. In order to do this I first situate children’s legal and social status in its historical context, examining popular assumptions about children and their rights, and expose the false necessity of children’s current legal status. I then offer a philosophical analysis for why children’s present subordination is unjust, and an explanation of how society could be sensibly and …

Bad News For Professor Koppelman: The Incidental Unconstitutionality Of The Individual Mandate, David B. Kopel, Gary Lawson

David B Kopel

In "Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform," Professor Andrew Koppelman concludes that the individual mandate in the Patient Protection and Affordable Care Act (PPACA) is constitutionally authorized as a law "necessary and proper for carrying into Execution" other aspects of the PPACA. However, the Necessary and Proper Clause rather plainly does not authorize the individual mandate. The Necessary and Proper Clause incorporates basic norms drawn from eighteenth-century agency law, administrative law, and corporate law. From agency law, the clause embodies the venerable doctrine of principals and incidents: a law enacted under the clause must …

The Greatest Legal Movie Of All Time: Proclaiming The Real Winner, Grant H. Morris

Grant H Morris

In August, 2008, the ABA Journal featured an article entitled: “The 25 Greatest Legal Movies.” A panel of experts, described in the article as “12 prominent lawyers who teach film or are connected to the business” selected “the best movies ever made about lawyers and the law.” This distinguished panel ranked its twenty-five top legal movies, choosing To Kill a Mockingbird as its number one legal movie. The panel also selected twenty-five films as “honorable mentions,” which were listed in alphabetical order. In my opinion, however, the real greatest legal movie of all time was not selected as the winner. …

The Right To Arms In The Living Constitution, David B. Kopel

David B Kopel

This Article presents a brief history of the Second Amendment as part of the living Constitution. From the Early Republic through the present, the American public has always understood the Second Amendment as guaranteeing a right to own firearms for self-defense. That view has been in accordance with élite legal opinion, except for a period in part of the twentieth century.

"Living constitutionalism" should be distinguished from "dead constitutionalism." Under the former, courts looks to objective referents of shared public understanding of constitutional values. Examples of objective referents include state constitutions, as well as federal or state laws to protect …

State Court Standards Of Review For The Right To Keep And Bear Arms, David B. Kopel, Clayton Cramer

David B Kopel

Cases on the right to arms in state constitutions can provide useful guidance for courts addressing Second Amendment issues. Although some people have claimed that state courts always use a highly deferential version of "reasonableness," this article shows that many courts have employed rigorous standards, including the tools of strict scrutiny, such as overbreadth, narrow tailoring, and less restrictive means. Courts have also used categoricalism (deciding whether something is inside or outside the right) and narrow construction (to prevent criminal laws from conflicting with the right to arms). Even when formally applying "reasonableness," many courts have used reasonableness as a …

Commerce In The Commerce Clause: A Response To Jack Balkin, David B. Kopel, Robert G. Natelson

David B Kopel

The Constitution’s original meaning is its meaning to those ratifying the document during a discrete time period: from its adoption by the Constitutional Convention in late 1787 until Rhode Island’s ratification on May 29, 1790. Reconstructing it requires historical skills, including a comprehensive approach to sources. Jack Balkin’s article Commerce fails to consider the full range of evidence and thereby attributes to the Constitution’s Commerce Clause a scope that virtually no one in the Founding Era believed it had.

Full Faith And Credit In The Early Congress, Stephen E. Sachs

Stephen E. Sachs

After more than 200 years, the Full Faith and Credit Clause remains poorly understood. The Clause first issues a self-executing command (that "Full Faith and Credit shall be given"), and then empowers Congress to prescribe the manner of proof and the "Effect" of state records in other states. But if states must accord each other full faith and credit-and if nothing could be more than full-then what "Effect" could Congress give state records that they wouldn't have already? And conversely, how could Congress in any way reduce or alter the faith and credit that is due? This Article seeks to …

(Still) Not Fit To Be Named: Moving Beyond Race To Explain Why 'Separate' Nomenclature For Gay And Straight Relationships Will Never Be 'Equal', Courtney M. Cahill

Courtney M. Cahill

This Article provides a novel approach to an issue that has recently assumed national prominence: Whether it is constitutional to extend same-sex couples the substance of marriage but only under a different name, like civil union or domestic partnership. While legal actors have challenged the constitutionality of nominal difference by comparing it to the discredited legal doctrine of separate-but-equal, this Article moves beyond race to show why ‘separate’ names for gay and straight relationships will never be ‘equal,’ namely, because they reflect and perpetuate something that has applied to same-sex intimacy for centuries: a speech or a name taboo. In …

The Natural Right Of Self-Defense: Heller's Lesson For The World, David B. Kopel

David B Kopel

The U.S. Supreme Court's decision in District of Columbia v. Heller constitutionalized the right of self-defense, and described self-defense as a natural, inherent right. Analysis of natural law in Heller shows why Justice Stevens' dissent is clearly incorrect, and illuminates a crucial weakness in Justice Breyer's dissent. The constitutional recognition of the natural law right of self-defense has important implications for American law, and for foreign and international law.

The Admiralty Jurisdiction Of Torts And Crimes And The Failed Search For Its Purposes, Graydon S. Staring

Graydon S. Staring

This article views the jurisdiction, or power, of the Admiral in its historic setting as that of a governor, a ruler, of the offshore waters claimed by the kings. He had military, legislative (regulatory), police and judicial powers, the recognition of which became customary for maritime nations. The judicial jurisdiction comprised the legal questions that arose from his other functions. Like the rest of his powers, it was territorial rather than defined by other subject matter. This was the situation when the Constitution was adopted, when admiralty in its broadest form known to us was found in the colonies and …

Self-Defense In Asian Religions, David B. Kopel

David B Kopel

This Article investigates the attitudes of six Far Eastern religions - Confucianism, Taoism, Hinduism, Sikhism, Jainism, and Buddhism - towards the legitimacy of the use of force in individual and collective contexts. Self-defense is strongly legitimated in the theory and practice of the major Far Eastern religions. The finding is consistent with natural law theory that some aspects of the human personality, including the self-defense instinct, are inherent in human nature, rather than being entirely determined by culture.

The Catholic Second Amendment, David B. Kopel

David B Kopel

At the beginning of the second millennium, there was no separation of church and state, and kings ruled the church. Tyrannicide was considered sinful. By the end of the thirteenth century, however, everything had changed. The Little Renaissance that began in the eleventh century led to a revolution in political and moral philosophy, so that using force to overthrow a tyrannical government became a positive moral duty. The intellectual revolution was an essential step in the evolution of Western political philosophy that eventually led to the American Revolution.

The Gold Standard Of Gun Control - Book Review Of Joyce Malcolm, Guns And Violence: The English Experience, David B. Kopel, Joanne D. Eisen, Paul Gallant

David B Kopel

Guns and Violence tells a remarkable story of a society's self-destruction, of how a government in a few decades managed to reverse six hundred years of social progress in violence reduction. The book is also a testament to the amazing self-confidence of British governments; Labour and Conservative alike have proceeded with an extreme anti-self-defense agenda, although the agenda has never had much supporting evidence beyond the government's own platitudes.

The Scottish And English Religious Roots Of The American Right To Arms: Buchanan, Rutherford, Locke, Sidney, And The Duty To Overthrow Tyranny, David B. Kopel

David B Kopel

Many twenty-first century Americans believe that they have a God-given right to possess arms as a last resort against tyranny. One of the most important sources of that belief is the struggle for freedom of conscience in the United Kingdom during the reigns of Elizabeth I and the Stuarts. A moral right and duty to use force against tyranny was explicated by the Scottish Presbyterians George Buchanan and Samuel Rutherford. The free-thinking English Christians John Locke and Algernon Sidney broadened and deepened the ideas of Buchanan and Rutherford. The result was a sophisticated defense of religious freedom, which was to …

The Religious Roots Of The American Revolution And The Right To Keep And Bear Arms, David B. Kopel

David B Kopel

This article examines the religious background of the American Revolution. The article details how the particular religious beliefs of the American colonists developed so that the American people eventually came to believe that overthrowing King George and Parliament was a sacred obligation. The religious attitudes which impelled the Americans to armed revolution are an essential component of the American ideology of the right to keep and bear arms.

Rights Of Inequality: Rawlsian Justice, Equal Opportunity, And The Status Of The Family, Justin Schwartz

Justin Schwartz

Is the family subject to principles of justice? In A Theory of Justice, John Rawls includes the (monogamous) family along with the market and the government as among the "basic institutions of society" to which principles of justice apply. Justice, he famously insists, is primary in politics as truth is in science: the only excuse for tolerating injustice is that no lesser injustice is possible. The point of the present paper is that Rawls doesn't actually mean this. When it comes to the family, and in particular its impact on fair equal opportunity (the first part of the the Difference …

Self-Defense: The Equalizer, David B. Kopel, Linda Gorman

David B Kopel

Experiments in tightening gun-control laws have eroded the right of self defense and failed to stop serious crime. Studies Japan, the United Kingdom, Canada, and Australia.

The Evolving Police Power: Some Observations For A New Century, David B. Kopel, Glenn Harlan Reynolds

David B Kopel

A review of state and federal courts decisions on the scope of state police powers suggests that the shift from the more restrictive sic utere principle to the more open salus populi principle may be reversing, with courts -- at least in cases involving sex and marriage -- taking a much more skeptical view of government objectives and justifications.

Tench Coxe And The Right To Keep And Bear Arms, 1787-1823, David B. Kopel

David B Kopel

Tench Coxe, a member of the second rank of this nation's Founders and a leading proponent of the Constitution and the Bill of Rights, wrote prolifically about the right to keep and bear arms. In this Article, the authors trace Coxe's story, from his early writings in support of the Constitution, through his years of public service, to his political writings in opposition to the presidential campaigns of John Adams and John Quincy Adams. The authors note that Coxe described the Second Amendment as guaranteeing an individual right, and believed that an individual right to bear arms was necessary for …

Relativism, Reflective Equilibrium, And Justice, Justin Schwartz

Justin Schwartz

THIS PAPER IS THE CO-WINNER OF THE FRED BERGER PRIZE IN PHILOSOPHY OF LAW FOR THE 1999 AMERICAN PHILOSOPHICAL ASSOCIATION FOR THE BEST PUBLISHED PAPER IN THE PREVIOUS TWO YEARS.

The conflict between liberal legal theory and critical legal studies (CLS) is often framed as a matter of whether there is a theory of justice that the law should embody which all rational people could or must accept. In a divided society, the CLS critique of this view is overwhelming: there is no such justice that can command universal assent. But the liberal critique of CLS, that it degenerates into …

Taking Federalism Seriously: Lopez And The Partial-Birth Abortion Ban, David B. Kopel, Glenn Harlan Reynolds

David B Kopel

In United States v. Lopez, the United States Supreme Court struck down the federal Gun Free School Zones law as not within congressional power to regulate interstate commerce. This article examines post-Lopez jurisprudence regarding the permissible scope of federal criminal law. Analyzing a wide variety of federal criminal laws challenged in post-Lopez cases (including arson, robbery, gun possession, drugs, violence against women, and abortion clinic disruption), the article shows how courts have followed or evaded Lopez. Studying the proposed federal ban on partial birth abortions, the article suggests that the ban is not a lawful exercise of Congress' interstate commerce …