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Articles 1 - 30 of 31
Full-Text Articles in Law
Foreword: Elected Branch Influences In Constitutional Decisionmaking, Neal Devins
Foreword: Elected Branch Influences In Constitutional Decisionmaking, Neal Devins
Neal E. Devins
No abstract provided.
Constitutional Empiricism: Quasi-Neutral Principles And Constitutional Truths, Timothy Zick
Constitutional Empiricism: Quasi-Neutral Principles And Constitutional Truths, Timothy Zick
Timothy Zick
The absence of neutrality and objectivity in constitutional decision-making has vexed scholars and courts. In this Article, the author describes and analyzes "constitutional empiricism," a trend instituted by the Rehnquist Court, which is characterized by judicial reliance in constitutional review on empirical and scientific conventions and processes. Courts have generally relied upon traditional sources, such as text and history, to interpret consititutional powers and rights. In its search for neutrality and objectivity, however, the Court has recently turned not only to social science and other data, which are fast becoming common sources of interpretation, but also to the precepts and …
Will, Judgment, And Economic Liberty: Mr. Justice Souter And The Mistranslation Of The Due Process Clause, Alan J. Meese
Will, Judgment, And Economic Liberty: Mr. Justice Souter And The Mistranslation Of The Due Process Clause, Alan J. Meese
Alan J. Meese
No abstract provided.
Interpreting Constitutions: A Comparative Study, Frederick W. Dingledy
Interpreting Constitutions: A Comparative Study, Frederick W. Dingledy
Frederick W. Dingledy
No abstract provided.
Why Congress Does Not Challenge Judicial Supremacy, Neal Devins
Why Congress Does Not Challenge Judicial Supremacy, Neal Devins
Neal E. Devins
Members of Congress largely acquiesce to judicial supremacy both on constitutional and statutory interpretation questions. Lawmakers, however, do not formally embrace judicial supremacy; they rarely think about the courts when enacting legislation. This Article explains why this is so, focusing on why lawmakers have both strong incentive to acquiesce to judicial power and little incentive to advance a coherent view of congressional power. In particular, lawmakers are interested in advancing favored policies, winning reelection, and gaining personal power within Congress. Abstract questions of institutional power do not interest lawmakers and judicial defeats are seen as opportunities to find some other …
How Not To Challenge The Court, Neal Devins
Correspondence: The Stuff Of Constitutional Law, Neal Devins
Correspondence: The Stuff Of Constitutional Law, Neal Devins
Neal E. Devins
No abstract provided.
The Return Of The Unprovided-For Case, Michael S. Green
The Return Of The Unprovided-For Case, Michael S. Green
Michael S. Green
No abstract provided.
Constitutional Avoidance And The Roberts Court, Neal Devins
Constitutional Avoidance And The Roberts Court, Neal Devins
Neal E. Devins
No abstract provided.
Congress As Culprit: How Lawmakers Spurred On The Court's Anti-Congress Crusade, Neal Devins
Congress As Culprit: How Lawmakers Spurred On The Court's Anti-Congress Crusade, Neal Devins
Neal E. Devins
No abstract provided.
Against Mix-And-Match Lawmaking, Aaron-Andrew P. Bruhl
Against Mix-And-Match Lawmaking, Aaron-Andrew P. Bruhl
Aaron-Andrew P. Bruhl
No abstract provided.
The Declaration Of Independence And Constitutional Interpretation, Alexander Tsesis
The Declaration Of Independence And Constitutional Interpretation, Alexander Tsesis
Alexander Tsesis
This Article argues that the Reconstruction Amendments incorporated the human dignity values of the Declaration of Independence. The original Constitution contained clauses, which protected the institution of slavery, that were irreconcilable with the normative commitments the nation had undertaken at independence. The Thirteenth, Fourteenth, and Fifteenth Amendments set the country aright by formally incorporating the Declaration of Independence's principles for representative governance into the Constitution.
The Declaration of Independence provides valuable insights into matters of human dignity, privacy, and self-government. Its statements about human rights, equality, and popular sovereignty establish a foundational rule of interpretation. While the Supreme Court has …
The Authors' Reply To Commentaries On, And Criticisms Of The Militia And The Right To Arms, Or, How The Second Amendment Fell Silent, H. Richard Uviller, William G. Merkel
The Authors' Reply To Commentaries On, And Criticisms Of The Militia And The Right To Arms, Or, How The Second Amendment Fell Silent, H. Richard Uviller, William G. Merkel
William G. Merkel
No abstract provided.
Justice O'Conner's Dilemma: The Baseline Question, Suzanna Sherry
Justice O'Conner's Dilemma: The Baseline Question, Suzanna Sherry
Suzanna Sherry
No abstract provided.
In Defense Of Judicial Supremacy, Erwin Chemerinsky
In Defense Of Judicial Supremacy, Erwin Chemerinsky
Erwin Chemerinsky
“Judicial supremacy” is the idea that the Supreme Court should be viewed as the authoritative interpreter of the Constitution and that we should deem its decisions as binding on the other branches and levels of government, until and unless constitutional amendment or subsequent decision overrules them. This is desirable because we want to have an authoritative interpreter of the Constitution and the Court is best suited to play this role. Under this view, doctrines which keep federal courts from enforcing constitutional provisions—such as denying standing for generalized grievances, the political question doctrine, and the state secrets doctrine—are misguided and should …
The Religious Freedom Restoration Act Is A Constitutional Expansion Of Rights, Erwin Chemerinsky
The Religious Freedom Restoration Act Is A Constitutional Expansion Of Rights, Erwin Chemerinsky
Erwin Chemerinsky
No abstract provided.
Construction, Originalist Interpretation And The Complete Constitution, Richard Kay
Construction, Originalist Interpretation And The Complete Constitution, Richard Kay
Richard Kay
Uniformity In Constitutional Interpretation And The Background Right To Effective Democratic Governance, Donald L. Beschle
Uniformity In Constitutional Interpretation And The Background Right To Effective Democratic Governance, Donald L. Beschle
Donald L. Beschle
No abstract provided.
Conjuring "Equal Dignity": Mapping The Constitutional Dialogue To And From Same-Sex Marriage, Julie Nice
Conjuring "Equal Dignity": Mapping The Constitutional Dialogue To And From Same-Sex Marriage, Julie Nice
Julie A. Nice
Embracing Administrative Constitutionalism, Bertrall L. Ross
Embracing Administrative Constitutionalism, Bertrall L. Ross
Bertrall L Ross
Administrative agencies engage in constitutionalism. They resolve questions of statutory meaning and scope that implicate constitutional questions. Even when agencies do not consciously set out to weigh in on constitutional
questions, by interpreting and applying statutes that rest on constitutional values, agencies elaborate constitutional meaning.
Should courts and theorists embrace or resist administrative
constitutionalism? For those who believe that the courts are the exclusive and final interpreters of the Constitution, it seems natural to oppose it. Thus, over the past forty years, the Supreme Court has resisted administrative constitutionalism. When agencies elaborate constitutional meaning in their interpretation of statutes, the …
The Illusory Eighth Amendment, John F. Stinneford
The Illusory Eighth Amendment, John F. Stinneford
John F. Stinneford
Although there is no obvious doctrinal connection between the Supreme Court’s Miranda jurisprudence and its Eighth Amendment excessive punishments jurisprudence, the two are deeply connected at the level of methodology. In both areas, the Supreme Court has been criticized for creating “prophylactic” rules that invalidate government actions because they create a mere risk of constitutional violation. In reality, however, both sets of rules deny constitutional protection to a far greater number of individuals with plausible claims of unconstitutional treatment than they protect. This dysfunctional combination of over- and underprotection arises from the Supreme Court’s use of implementation rules as a …
Lost Fidelities, Barry Cushman
Linking The Questions: Judicial Supremacy As A Matter Of Constitutional Interpretation, Tabatha Abu El-Haj
Linking The Questions: Judicial Supremacy As A Matter Of Constitutional Interpretation, Tabatha Abu El-Haj
Tabatha Abu El-Haj
This Article explains that what has been missing from the debate between advocates of popular constitutionalism and defenders of judicial supremacy is any account of the practice of constitutional interpretation. Without a clear sense of what constitutional interpretation involves, we cannot assess the prevailing assumption that the Supreme Court is uniquely positioned to interpret the Constitution or explore an expertise-based justification for its claim to finality. The Article, therefore, revisits the debate about judicial supremacy by starting, not with history or politics, but with constitutional interpretation itself.
Having explored the practice of constitutional interpretation, it concludes that the Supreme Court …
Originalism In Practice, Lawrence Rosenthal
Originalism In Practice, Lawrence Rosenthal
Lawrence Rosenthal
Originalism is in ascendance. Both in judicial opinions and in the legal academy, arguments for the interpretation of the Constitution based on its original meaning are increasingly prominent. The scholarly literature to date, however, has focused on theory. Supporters and opponents debate the theoretical merits of originalism, but rarely test their views on the merits of originalism by reference to the realities of constitutional adjudication. In science, a theory gains acceptance if it makes testable predictions that are later borne out. Whatever its theoretical merit, originalism deserves recognition as genuinely distinctive and useful approach to constitutional adjudication only if, in …
I Am Textualism, Stephen Durden
I Am Textualism, Stephen Durden
Stephen Durden
This essay, consisting of merely 1100 words, satirizes textualism, particularly as applied to the Constitution. Inspired by the idea of something being all things to all people in order to win converts, the essay demonstrates that because textualism has so many different definitions that it in fact has no meaning other than the meaning given by each textualist. Each textualist embraces his or her own version of textualism. Textualists battle to define true textualism. Given the different versions of textualism, each textualist faces the Textualist Conundrum. As each textualist seeks to embraceor prove a purer form of textualism the textualist …
Originalism Is Useless, Lawrence Rosenthal
Originalism Is Useless, Lawrence Rosenthal
Lawrence Rosenthal
Originalism is in ascendance. Both in judicial opinions and in the legal academy, originalist methods of constitutional interpretation are increasingly prominent. This essay nevertheless makes what may seem a claim – originalism is useless. In this, the essay takes a different path the the critics of orignalism have offered to date. Attacks on originalism usually question its normative desirability, but do not doubt that originalism offers a distinct approach to constitutional adjudication as compared to nonoriginalism. The concern here is with the question whether originalism is actually of help in addressing the kind of constitutional questions that come before the …
Originalism Is Useless, Lawrence Rosenthal
Originalism Is Useless, Lawrence Rosenthal
Lawrence Rosenthal
Originalism is in ascendance. Both in judicial opinions and in the legal academy, originalist methods of constitutional interpretation are increasingly prominent. This essay nevertheless makes what may seem a claim – originalism is useless. In this, the essay takes a different path the the critics of orignalism have offered to date. Attacks on originalism usually question its normative desirability, but do not doubt that originalism offers a distinct approach to constitutional adjudication as compared to nonoriginalism. The concern here is with the question whether originalism is actually of help in addressing the kind of constitutional questions that come before the …
Evolving Away From Evolving Standards Of Decency, John F. Stinneford
Evolving Away From Evolving Standards Of Decency, John F. Stinneford
John F. Stinneford
No abstract provided.
Much Ado About Pluralities: Pride And Precedent Amidst The Cacophy Of Concurrences, And Re-Percolation After Rapanos, Donald J. Kochan, Melissa M. Berry, Matthew J. Parlow
Much Ado About Pluralities: Pride And Precedent Amidst The Cacophy Of Concurrences, And Re-Percolation After Rapanos, Donald J. Kochan, Melissa M. Berry, Matthew J. Parlow
Donald J. Kochan
Conflicts created by concurrences and pluralities in court decisions create confusion in law and lower court interpretation. Rule of law values require that individuals be able to identify controlling legal principles. That task is complicated when pluralities and concurrences contribute to the vagueness or uncertainty that leaves us wondering what the controlling rule is or attempting to predict what it will evolve to become. The rule of law is at least handicapped when continuity or confidence or confusion infuse our understanding of the applicable rules. This Article uses the recent U.S. Supreme Court decision in Rapanos v. United States to …
Much Ado About Pluralities: Pride And Precedent Amidst The Cacophony Of Concurrences, And Re-Percolation After Rapanos, Matthew J. Parlow, Donald J. Kochan