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Liberty, James E. Fleming, Linda C. Mcclain
Liberty, James E. Fleming, Linda C. Mcclain
Faculty Scholarship
"To secure the blessings of liberty," the Preamble to the US Constitution proclaims, "We the People . . . ordain and establish this Constitution." The Constitution is said to secure liberty through three principal strategies: the design of the Constitution as a whole; structural arrangements, most notably separation of powers andfederalism; and protection of rights. This chapter focuses on this third strategy of protecting liberty, in particular, through the Fifth and Fourteenth Amendments. We first examine the several approaches taken to the "Incorporation" of certain basic liberties "enumerated" in the Bill of Rights to apply to the state governments. We …
Common And Uncommon Families In The American Constitutional Order, Linda C. Mcclain
Common And Uncommon Families In The American Constitutional Order, Linda C. Mcclain
Faculty Scholarship
This essay reviews Professor Mark E. Brandon’s aptly named book, States of Union: Family and Change in the American Constitutional Order, which challenges the familiar story that the U.S. constitutional and political order have rested upon a particular, unchanging form of family – monogamous, heterosexual, permanent, and reproductive – and on the family values generated by that family form. That story also maintains that such family form and the legal norms that sustained it remained relatively undisturbed for centuries until the dramatic transformation spurred in part, beginning the 1960s, by the U.S. Supreme Court’s constitutionalizing of family and marriage through, …
Classical Liberal Constitution Or Classical Liberal Construction?, Gary S. Lawson
Classical Liberal Constitution Or Classical Liberal Construction?, Gary S. Lawson
Faculty Scholarship
In The Classical Liberal Constitution: The Uncertain Quest for Limited Government (2013), Richard Epstein says that he "incorporates but goes beyond" originalist theory by calling for adjudication "in sync with" classical liberal theory political theory, which Professor Epstein claims underlies the Constitution. Without in any way detracting from the numerous virtues of this book, I argue that this is primarily a work of constitutional construction rather than constitutional interpretation. From the standpoint of interpretation, the background rules that best supplement the constitutional text are found in eighteenth-century fiduciary law rather than in classical liberal political theory, though the latter is …