Law Commons^™

Interpretation: Article I, Section 5, Ronald Weich, Martin B. Gold

All Faculty Scholarship

In Article I of the Constitution, the Framers vest the legislative authority of the United States government in a bicameral Congress, and over the ten sections of the Article they systematically flesh out the structure, duties, and powers of that Congress. In the early sections of Article I they describe the membership of each House, giving life to the “Great Compromise” of the Constitutional Convention under which each state has equal representation in the Senate but population-based representation in the House of Representatives. In Section 5, they grant Congress the power to govern itself.

Section 5 consists of four separate …

Resolving The Original Sin Of Bolling V. Sharpe, Gregory Dolin

All Faculty Scholarship

On May 17, 1954 the Supreme Court handed down two decisions that for the first time categorically held that racial segregation in public schools was per se unlawful – Brown v. Board of Education and Bolling v. Sharpe. Ostensibly, both cases dealt with a same question; however, in Brown the entity accused of discrimination was a creature of the State of Kansas, while in Bolling the discrimination was practiced by the federal government. The problem that the Supreme Court faced was the language of the Fourteenth Amendment, which, by its own terms, guaranteed “equal protection of the laws” only vis-à-vis …

The Constitutional Thought Of Alexander Hamilton, Mortimer N.S. Sellers

Book Chapters

Alexander Hamilton was one of the strongest minds behind the development of modern constitutionalism, both in theory and in practice. Hamilton shared the constitutional principles of his republican contemporaries in his commitment to bicameral legislatures, elected executives, the separation of powers, checks and balances in government, and representative (rather than direct) democracy. He differed somewhat in his much stronger commitment to federalism, to executive power, and to judges, as the bulwark of constitutional liberty. Hamilton became as "Publius" (with James Madison) in "The Federalist" the foremost advocate and interpreter of constitutional government as it would ultimately be implemented in the …

International Law For American Courts: Why The “American Laws For American Courts” Movement Is A Violation Of The United States Constitution And Universal Human Rights, Maria Surdokas

University of Baltimore Journal of International Law

In recent years, the “American Laws for American Courts” movement has swept across the country in an attempt to ban international law from U.S. state courts. This article specifically examines the Oklahoma Save Our State Amendment and the Arizona Foreign Decisions Act. In doing so, it addresses both the constitutional and policy problems with these attempts, observing that what the states have been trying to do is neither legal nor practical. It analyzes the inability of individual states to unilaterally avoid compliance with the United States’ international law obligations. It notes the absurdity in outlawing international law in order to …

Government By Contract And The Structural Constitution, Kimberly L. Wehle

All Faculty Scholarship

Although private parties have performed government functions throughout most of Western history, mainstream administrative law scholarship is dotted with concerns over the extent to which modern federal government activities are outsourced to private contractors. Federal contractors routinely exercise authority that is classically “executive” in nature. They write regulations, interpret laws, administer foreign aid, manage nuclear weapons sites and intelligence operations, interrogate detainees, control borders, design surveillance systems, and provide military support in combat zones. Administrative law places few constraints on private contractors, and prevailing constitutional principles — the state action and private delegation doctrines, in particular — are either inept …

Interpreting The Fourteenth Amendment: Two Don'ts And Three Dos, Garrett Epps

All Faculty Scholarship

A sophisticated reading of the legislative record of the framing of the Fourteenth Amendment can provide courts and scholars with some general interpretive principles to guide their application of the Amendment to current legal problems. The author argues that two common legal conceptions about the Amendment are, in fact, misconceptions. The first is that the Amendment was chiefly concerned with the immediate situation of freed slaves in the former slave states. Instead, he argues, the legislative record suggests that the framers were broadly concerned with the rights not only of freed slaves but also of foreign-born immigrants in the North …

Civil Liberties In Uncivil Times: The Perilous Quest To Preserve American Freedoms, Kenneth Lasson

All Faculty Scholarship

The perilous quest to preserve civil liberties in uncivil times is not an easy one, but the wisdom of Benjamin Franklin should remain a beacon: "Societies that trade liberty for security end often with neither." Part I of this article is a brief history of civil liberties in America during past conflicts. Part II describes various actions taken by the government to conduct the war on terrorism - including invasions of privacy, immigration policies, deportations, profiling, pre-trial detentions, and secret military tribunals. Part III analyzes the serious Constitutional questions raised by the government's actions in fighting terrorism. The thesis throughout …

The Burdens And Benefits Of The American Jury, José F. Anderson

All Faculty Scholarship

There is no institution in the legal system more controversial than the American Jury. It has been praised and hated by people from all walks of life. James Madison once called it among "the most valuable" rights included in the Bill of Rights. Robert Allan Rutland, The Birth of the Bill of Rights 1776-1791, at 208 (2nd ed ., Northeastern Univ. Press 1991) (1955) (quoting 1 Annals of Cong. 755 (Joseph Gales ed., 1789)). The business community sometimes complains that it paralyzes its ability to grow. Politicians have used it as grist for their mills calling for jury reform. Television …

Assessing The New Judicial Minimalism, Christopher J. Peters

All Faculty Scholarship

In this article, which has been published in slightly revised form at 100 Colum. L. Rev. 1454 (2000), I critique some recently prominent arguments for "judicial minimalism" in constitutional decisionmaking. Current minimalist arguments, I contend, are primarily "policentric," that is, focused on the role the judiciary can play in bolstering the accountability and deliberativeness of the political branches. Drawing in part on a previous article, I offer an alternative approach to minimalism that is "juricentric" - focused on the inherent democratic legitimacy of the adjudicative process and the unique competence of that process to produce decisions about individual rights. I …

Residual Hearsay Exceptions & Confrontation: Continuing Constitutional Dilemma, Thomas G. Ross

University of Baltimore Law Forum

No abstract provided.