Law Commons^™

Politics And Jurisprudence In West Germany: State Financing Of Political Parties, Donald P. Kommers

Journal Articles

The relationship between political parties and representative government has been an important consideration in the constitutional jurisprudence of the Federal Republic of Germany. The Federal Constitutional Court has gone further than any other constitutional tribunal in the West to promote a free and competitive party system, and the Court’s decisions affecting the status of parties under the Basic Law, especially those having to do with party finance, are a marvelous illustration of the interplay between politics and law. The Federal Constitutional Court’s decision in 1966 to invalidate a federal plan for subsidizing political parties is a good example of the …

Judicial Review In Italy And West Germany, Donald P. Kommers

Journal Articles

This is a comparative study of the constitutional courts of Italy and West Germany. These institutions, established in the 1950's, have settled hundreds of constitutional disputes. And their caseloads continue to rise in volume. The time seems ripe, therefore, briefly to review the work of these tribunals and to relate this work to the condition of constitutional democracy in the two polities. It should be remarked that this is not fundamentally a study in constitutional jurisprudence. The main purpose of this article is to see how judicial review has actually operated, what its effects have been, and what its future …

The Last Days Of Erastianism: Forms In The American Church-State Nexus, Robert E. Rodes

Journal Articles

In the long history of Christendom, an Erastian view of the relation between Church and State has existed in tension with a High Church view. This paper explores the current state of our current shopworn Erastian-like church-state nexus and considers what forces may bring a more relevant and effective institutional High Church witness into being. The fact that the United States has an Erastian-like church-state relation is borne out in a line of cases involving the judicial resolution of intra-church disputes and the effect to be given the mandates of ecclesiastical authority. It is also borne out in legislative and …

Comments On Powell V. Mccormick, Charles E. Rice

Journal Articles

Powell v. McCormack is an unfortunate decision, principally because the Supreme Court should never have exercised its jurisdiction over the case. The ruling, however, is chiefly open to criticism, not because it is demonstrably contrary to established rules of law, but because it runs counter to those less clearly articulated, and essentially precatory, admonitions of judicial restraint which are implicit in the separation of governmental powers. The crucial point is not the jurisdiction of the subject matter, the Speech or Debate Clause, the issue of mootness raised by Justice Stewart in dissent or the substantive merits of Adam Clayton Powell's …

Separation Of Powers In The Australian Constitution, John M. Finnis

Journal Articles

Even those who regret it accept that the founders of the Australian Constitution "beyond question" intended the separation of powers now required by the Boilermakers' Case . This article seeks first to show that the arguments advanced to prove the alleged intention are no more probative -than the draftsman's literary arrangement which has prompted the accepted view of constitutional history; and second, to discuss the proper strategy of approach to the historical record on these matters.

Justice Black, The Demonstrators, And A Constitutional Rule Of Law, Charles E. Rice

Journal Articles

In evaluating here briefly a jurist whose career as a shaper of the fundamental law has spanned the past three decades, one treads warily for fear of oversimplification. It would be an easy thing to categorize such a man as Justice Black, to pigeonhole him and his philosophy in the compartment marked "liberal" or "activist" and to let it go at that, serene in the thought that the classification had exhausted the subject. But such a categorization would be illusory and perilous were it not hedged about by those qualifications required in an evaluation of a productive mind.

Professor Kurland, The Supreme Court And Political Science, Donald P. Kommers

Journal Articles

IN A SYMPOSIUM held at the Notre Dame Law School on February 29, 1964, on several constitutional amendments designed to limit the power of the Supreme Court, Professor Philip B. Kurland of the University of Chicago Law School read a terse and delightfully witty paper in which he compared the Supreme Court to Caesar, sieged on the one side by the modem forces of Brutus, and championed on the other side by the contemporary Mark Antonys. There was no doubt in Professor Kurland's mind that the efforts of conspirators like the Council of State Governments, not to mention its less …

The Constitutional Right Of Association, Charles E. Rice

Journal Articles

It has been accurately observed that we are a nation of joiners. Alexis de Tocqueville, as early as 1835, concluded that "in no country in the world has the principle of association been more successfully used, or more unsparingly applied to a multitude of different objects, than in America." Tocqueville noted the ubiquitous character of American voluntary associations.

In 1958, the Supreme Court of the United States affirmed, for the first time in unmistakable terms, the status of freedom of association as a fundamental right.

The occasion for this affirmation was an attempt by the State of Alabama to oust …

Introduction, Joseph O'Meara

Journal Articles

A symposium was held on February 29, 1964, devoted to the constitutional amendments proposed by the Council of State Governments. Very briefly these amendments would (1) vest power to amend the Constitution in State legislatures; (2) set up a "Court of the Union," composed of the chief justice of the supreme court of each of the 50 states, which would have authority to review "any judgment of the Supreme Court relating to the rights reserved to the states or to the people by this Constitution"; (3) take from the federal courts all jurisdiction over the apportionment of representation in State …

The Passing Of Nonsectarianism--Some Reflections On The School Prayer Case, Robert E. Rodes

Journal Articles

Engel v. Vitale was a landmark case which marked a jurisprudential shift in the constitutional meaning of the Establishment Clause. This paper, written in the aftermath of this important case, reflects on, and contrasts, England's historical establishment of the Church with historical nonsectarianism in the United States. After analyzing the role which the tripartite Protestant-Catholic-Jew nonsectariansm played in society before Engle, the paper suggests that nonsectarianism served the beneficial purpose of directing the whole institutional structure of society toward the last end of human beings. With the passing of nonsectarianism, the nation is left with the problem of accurately and …

Mr. Justice Jackson: The Struggle For Federal Supremacy, William Burns Lawless

Journal Articles

Robert Houghwout Jackson, in defining the American way of life, reflects a penetrating self-analysis and summarizes his basic approach to judicial review. With this outlook, Attorney General Jackson was appointed to the United States Supreme Court in 1941 to fill the place left vacant by Harlan Fiske Stone upon his ascendancy to the position of Chief Justice. His appointment came at a time of political unrest and international tension. Bar and press were skeptical, indeed cynical, of "The Roosevelt Court." The days were wrapped in talk of defense, rearmament, neutrality, lend-lease. Just as a new relationship had been begrudgingly assumed …

Federal Aid To Religious Schools - Introductory Note, Joseph O'Meara

Journal Articles

The American people are confronted by a crisis of constitutional interpretation and educational policy, stemming from the Bishops' program for federal aid to parochial schools. As was to be expected, there has been much partisan clamor on both sides of the school-aid question but far too little rational discourse. That deficiency would be corrected if there were wide response to Monsignor Hochwalt's invitation: " . . . we'd like that whole question of whether we should or we shouldn't [receive financial aid from the federal government] and the constitutionality and desirability and all the rest of it to be discussed …

Fire Insurance For Freedom, Clarence Emmett Manion

Journal Articles

Mr. President Betts, Mr. President-Elect, gentlemen of the International Association of Insurance Counsel and your lovely ladies: I am particularly grateful and edified to a very great extent by the intelligent interest of the advocates of the advocates—may I say that of your lovely wives—for their sustained interest in these legalisms that you have heard here this morning. It is very impressive, and it encourages me to say primarily to the ladies present that what I am ostensibly addressing to the gentlemen, I am really addressing to you. I know, of course, that you are defense lawyers primarily, and I …

Freedom Of Inquiry Versus Authority: Some Legal Aspects, Joseph O'Meara

Journal Articles

I am to discuss some legal aspects of freedom of inquiry versus authority. It raises the issue of free speech; for inquiry is not free - it is confined and frustrated - if one must keep the fruits of inquiry to one's self. The contest between freedom and authority, even in a democracy, is an unequal contest, with the advantage on the side of authority; for authority has power and power has the drop on freedom. This is why eternal vigilance is the price of liberty. Freedom has its dangers. There is no doubt about that. The risk is still …

Religious Education And The Historical Method Of Constitution Interpretation - A Review Article, Robert E. Rodes

Journal Articles

Confusion Twice Confounded is sufficiently typical of a growing body of literature to warrant more extensive treatment than is usually accorded in a book review. It analyzes at great length the opinions in the Everson and McCollum cases and criticizes them in the light of the historical background of the First Amendment. Everson, it will be recalled, derived from the Founding Fathers the doctrine that the Constitution required a "wall of separation between church and state," which was not breached by public payment of transportation to and from parochial schools. McCollum used the test laid down in Everson to invalidate …

Review Of How To Keep Our Liberty By Raymond Moley, Clarence Emmett Manion

Journal Articles

How To Keep Our Liberty: A Program for Political Action. By Raymond Moley. New York: Alfred A. Knopf, Inc., 1952. Pp. xxvii, 339. $4.00. — In this interesting and valuable book, Mr. Moley proposes to do something about the disturbed state of our political weather. Pertinently he says: "Merely to bewail a trend is not to correct it." The American wants to know what to do about it (viz., the preservation of his liberty). The threat to liberty is "Statism," which the author interprets to be "the intervention by government in economic, social and personal life." Statism is thus frankly …

Founding Fathers And The Natural Law: A Study Of The Source Of Our Legal Institutions, The, Clarence Emmett Manion

Journal Articles

Where did the Founding Fathers get the principles upon which they established our government? What was the source of their faith? The bedrock of their convictions? What was the political evolution of our Constitution? The legal philosophy of our Bill of Rights? The discussion of these questions by Dean Manion is timely for it is necessary now to make soundings and take bearings if the Ship of State is to continue on its true course. Whereas the Revolution of 1688 brought the doctrine of parliamentary sovereignty to England, the American colonists resisted that doctrine and adhered to the true natural …

Church, The State, And Mrs. Mccollum, Clarence Emmett Manion

Journal Articles

On March 8, 1948 the Supreme Court of the United States decided in substance that this language prohibits the tax-supported city school systems of the State of Illinois from assisting and encouraging general religious instruction. Just how a constitutional restriction against specified congressional action can possibly impede the activity of a local Illinois school board is an inglorious mystery of modern constitutional construction.

In one way or another however, and for one reason or many, the Court decided eight to one that when the First Amendment says "Congress" it means, among other things, a local school board and when it …

Excusing Of Public School Pupils For Religious Instruction, Thomas F. Broden

Journal Articles

The separation of Church and State, according to the precepts of the American form of constitutional government, imposes no duty on the public school system to erect a barrier of hostility and antagonism against religion or the churches. Accordingly, a regulation of the Board of Education excusing the weekly absences of pupils for the purpose of receiving religious instruction does not, it was held in People ex rel. Latimer et al. v. Board of Education of City of Chicago, do violence to the compulsory attendance law and is a reasonable rule for the practical administration of the public schools.

Administrative Boards And Delegation Power, William Burns Lawless

Journal Articles

With the growth of American federalism and the passing of the doctrines of laissez faire as axioms of economic and political legal theory, the Congressional function magnified. Throughout the last decade the multiphased problems of Congress has necessitated the creation of administrative commissions to perform-the policies of the legislature. Congress continues to declare the law and determine the legal principle to control in given cases. In the same breath of legal creation it goes farther and provides for an administrator or commission to vitiate the doctrine set-out. The transfusion of power from the national legislature to the administrator promotes sensitive …

Constitutional Aspects Of The Conflict Of Laws: Recent Developments, Joseph O'Meara

Journal Articles

In diversity-of-citizenship cases Erie v. Tompkins has been extended to the field of conflict of laws by Klaxon Co. v. Stentor Electric Mfg. Co. This "prohibition...against...independent is in line with an earlier pronouncement, in Kryger v. Wilson in 1916, that "a mistaken application of doctrines of the conflict of laws...being purely a question of local common law, is a matter with which [the United States Supreme Court] is not concerned," and with the repeated declaration that "the Constitution...does not guarantee that the decisions of state courts shall be free from error."

The Fundamental Rights Of Man, Thomas Frank Konop

Journal Articles

This article transcribes discourse between Dean Thomas F. Konop of Notre Dame Law School and Mr. James J Boyle of the senior law class. Mr. Boyles begins by inquiring about the rights individuals have and the sources of said rights. Dean Konop delves into a discussion of the history of the law in America. He states that we derive our law from the common law of England, and we find our rights expressed in the common law and the Constitution of England; therefore, we must go to England to look for the basis of our rights. There are four main …

The Constitutionality Of New Deal Measures, Clarence Emmett Manion

Journal Articles

In this article, Clarence Manion warns that to honor the Constitution's form but not its substance is to essentially destroy the document. He opines that "Regulation of persons and things is never justified nor justifiable as an end in itself. Regulation for the sake of regulation is paternalism; but regulation as the only means for individual protection is a bulwark of our traditional American liberty. Regulation finds its only justification in the proof of the fact that it is a necessary means for adequate protection of the citizen's rights.

What Will Become Of Prohibition, Clarence Emmett Manion

Journal Articles

Because of the substantial minority support for Prohibition and the Eighteenth Amendment, this article suggests that it would difficult, if not impossible, to repeal the amendment despite the fact that 3 in 5 Americans would support its repeal. The article looks at potential options of lessening the impact of the Eighteenth Amendment, including removing penalties for it, repealing State enforcement acts, and forbidding nullification of search warrant requirements. Finally, it looks at the quality of liquor as a solution to an "unusually interesting" and "ultimately worthwhile" problem.

Review Of The Constitution And What It Means Today By Edward S. Corwin, Clarence Emmett Manion

Journal Articles

This is the fourth edition of a small and practical volume intended not so much for law students as for the information of the general public. Students of Constitutional Law will -find this book helpful in pursuing the study of the Constitution in its natural sequence, a procedure that is well-nigh impossible in the ordinary law courses dealing with the subject of Constitutional Law.

Review Of Cases On Constitutional Law By Dudley O. Mcgovney, Clarence Emmett Manion

Journal Articles

This is an up-to-date case book sufficiently condensed to make it serviceable with certain discriminating eliminations for semester courses in Constitutional Law. The most decided advantage that a case book on Constitutional Law can have is flexibility of outline. Professor McGovney's text has this feature.

Proximate Sources Of The Constitution, Clarence Emmett Manion

Journal Articles

The average American who thinks of our Federal Document only in terms of the Philadelphia Convention may not have fully appreciated the fact that before the surrender of Cornwallis at Yorktown, every American State had already achieved its constitutional independence and had established its own organic law, by which it should not only remain free from the foreign dominion of Great Britain, but should also remain an indestructible unit in The American Federal System. He must remember that the "Articles of Confederation and Perpetual Union" which leagued the alleged sovereign and independent States, were in force at the time of …

Liberty And The Police Power, Clarence Emmett Manion

Journal Articles

The American citizen now has practically no rights of person or property that neither Congress nor the State legislature may not impair by legislation. The adoption of the Articles of Confederation and the Federal Constitution served merely to transfer to the Federal government certain powers formerly exercised by the individual States. When all individuals were protected in the exercise of their respective rights it was never supposed that the rights of the individual were to be protected or approached through the avenues of legislation dictated by majority opinions as to what is now and again for the "general good". The …

Revocation Of Building Permits, Joseph O'Meara

Journal Articles

There is considerable confusion in text books and decisions in the use of the expression "vested interest", the same being sometimes used as though the owner of a vested interest becomes completely immune from legislation. Theoretically, as a building permit does not create a vested interest nor property right, no amount of expenditure in reliance on a building permit can create such a vested interest or property right as to effect a limitation upon the exercise of the police power. The problem is to devise a formula which, while meeting the objections to the scintilla rule, will put the judge …

Congress And The Supreme Court, Thomas Frank Konop

Journal Articles

In 1924, Plank Five of the Platform of the Independent candidate for President proposed a constitutional amendment that would enable Congress to override judicial review by reenacting a statute. Such an amendment would, of course, run in stark contrast to Chief Justice Marshall’s opinion in Marbury v. Madison. This paper explores nature of this proposed amendment and analyzes the implications of overturning the foundation of judicial power in our tripartite system of government. In sum, the author suggests that judicial review serves as an excellent check on Congress and the temporary passions of the public itself.