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Articles 1 - 4 of 4
Full-Text Articles in Law
Cross, Crucifix, Culture: An Approach To The Constitutional Meaning Of Confessional Symbols, Frederick Mark Gedicks, Pasquale Annicchino
Cross, Crucifix, Culture: An Approach To The Constitutional Meaning Of Confessional Symbols, Frederick Mark Gedicks, Pasquale Annicchino
Faculty Scholarship
In the United States and Europe the constitutionality of government displays of confessional symbols depends on whether the symbols also have nonconfessional secular meaning (in the U.S.) or whether the confessional meaning is at least absent (in Europe). Yet both the United States Supreme Court (USSCt) and the European Court of Human Rights (ECtHR) lack a workable approach to determining whether secular meaning is present or confessional meaning absent.
The problem is that the government can nearly always articulate a possible secular meaning for the confessional symbols that it uses, or argue that the confessional meaning is passive and ineffective. …
Religions As Sovereigns: Why Religion Is "Special", Elizabeth Clark
Religions As Sovereigns: Why Religion Is "Special", Elizabeth Clark
Faculty Scholarship
Commentators increasingly challenge religion’s privileged legal status, arguing that it is not “special” or distinct from other associations or philosophical or conscientious claims. I propose that religion is “special” because it functions metaphorically as a legal sovereign, asserting supreme authority over a realm of human life. Under a religion-as-sovereign theory, religious freedom can be understood as at least partial deference to a religious sovereign in a system of shared or overlapping sovereignty. This Article suggests that federalism, which also involves shared sovereignty, can provide a useful heuristic device for examining religious freedom. Specifically, the Article examines a range of federalism …
An Originalist Defense Of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, And The Fifth Amendment, Frederick Mark Gedicks
An Originalist Defense Of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, And The Fifth Amendment, Frederick Mark Gedicks
Faculty Scholarship
A longstanding scholarly consensus holds that the Due Process Clause of the FifthAmendment protects only rights to legal process. Both this consensus and the occasional challenges to it have generally overlooked the interpretive significance of the classical natural law tradition that made substantive due process textually coherent, andthe emergence of public-meaning originalism as the dominant approach to constitutional interpretation. This Article fills those gaps.
One widely shared understanding of the Due Process Clause in the late eighteenth century encompassed judicial recognition of unenumerated substantive rights as a limit on congressional power. This concept of substantive due process originated in Sir …
Conservatives, Liberals, Romantics: The Persistent Quest For Certainty In Constitutional Interpretation, Frederick Mark Gedicks
Conservatives, Liberals, Romantics: The Persistent Quest For Certainty In Constitutional Interpretation, Frederick Mark Gedicks
Faculty Scholarship
Despite their considerable ideological differences, "conservative originalists" such as Robert Bork and "progressive originalists" such as Michael Perry both divide the process of understanding into cognitive (or "objective") and normative (or "subjective") aspects. The determination of the original meaning of the Constitution is methodologically separated from the question how this predetermined meaning should be applied in a particular case. This places both conservative and progressive originalists squarely in the tradition of Romantic hermeneutics, which sought to overcome the uncertainty and imprecision of textual interpretation by developing a "science of interpretation" which purported to be as epistemologically reliable as the methods …