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Articles 1 - 30 of 82
Full-Text Articles in Law
Judicial Activism And Arbitrary Control: A Critical Analysis Of Obergefell V Hodges 556 Us (2015) - The Us Supreme Court Same-Sex Marriage Case, Augusto Zimmermann
Judicial Activism And Arbitrary Control: A Critical Analysis Of Obergefell V Hodges 556 Us (2015) - The Us Supreme Court Same-Sex Marriage Case, Augusto Zimmermann
The University of Notre Dame Australia Law Review
This article critically analyses the recent US Supreme Court decision in Obergefell v Hodges, the samesex marriage case. The court in Obergefell put a stop to the democratic process by removing an important issue from the realm of democratic deliberation. These unelected judges held that their nation’s federal constitution should ‘evolve’ in a way that is supported by neither the document’s language, nor its history or authority. In short, they have imposed their worldview on the people at the expense of federalism and the democratic process. This is why Justice Alito was so correct to state that such an exercise …
The Constitution And Societal Norms: A Modern Case For Female Breast Equality, Brenna Helppie-Schmieder
The Constitution And Societal Norms: A Modern Case For Female Breast Equality, Brenna Helppie-Schmieder
DePaul Journal of Women, Gender and the Law
“The Constitution and Societal Norms: A Modern Case for Female Breast Equality” argues that laws prohibiting the public display of the female breast, but not the male breast, are unconstitutional under the Fourteenth Amendment’s Equal Protection Clause. That these laws discriminate against women is obvious, yet courts have historically refused to recognize an Equal Protection Clause violation. However, the primary reasons courts rely upon are ripe for review. Most significantly, courts typically justify female breast censorship laws based on the government interest in protecting public sensibilities, without recognizing that public sensibilities change. Indeed, perceptions of the public female breast have …
Prayer And The Meaning Of The Establishment Clause: A Debate On Town Of Greece V. Galloway, Patrick M. Garry
Prayer And The Meaning Of The Establishment Clause: A Debate On Town Of Greece V. Galloway, Patrick M. Garry
ConLawNOW
Greece v. Galloway involved the constitutionality of the town of Greece’s practice of opening its monthly town board meetings with an invocation given by a volunteer chaplain of the month. The issue in Greece was not the appropriateness, sensitivity, or wisdom of the prayers, nor whether some people are offended by the prayers.
The Establishment Clause is not about feelings, just as the Speech Clause is not about the feelings of people who disagree with or are offended by other people’s speech. The Establishment Clause is not an individual rights clause; it is a clause focused on the institutional liberty …
Who Amended The Amendment?, John Olsson
Who Amended The Amendment?, John Olsson
ConLawNOW
The purpose and intent of the Sixth Amendment of the US Constitution has been repeatedly distorted by textualist misinterpretation, orchestrated by elements of the judiciary more concerned with preserving the power of government than the rights of individual defendants. As a result, it is hard to know what the Amendment stands for, since it has been successively re‑interpreted and, effectively, amended for at least the past 80 years and possibly longer. The author argues that it is time for courts to return to the spirit of the laws that actuated the Bill of Rights over two hundred years ago, and …
The Founders On: "Does The Constitution Work?", Craig A. Stern
The Founders On: "Does The Constitution Work?", Craig A. Stern
ConLawNOW
Whether the Constitution works depends upon the purpose of its working. Discerning that purpose, however, has resisted consensus. Consequently, this article suggests a roundabout way to supply at least a tentative answer to the question whether the Constitution works. The Founders believed that the Constitution, like any republican form of government, would work only for a moral and religious people. They framed and adopted the Constitution in that belief. John Adams warned that without morality and religion, the passions of the people “would break the strongest cords of our Constitution.” A glance at how some cords have fared with a …
Constitutionalizing Fetal Rights: A Salutary Tale From Ireland, Fiona De Londras
Constitutionalizing Fetal Rights: A Salutary Tale From Ireland, Fiona De Londras
Michigan Journal of Gender & Law
In 1983, Ireland became the first country in the world to constitutionalize fetal rights. The 8th Amendment to the Constitution, passed by a referendum of the People, resulted in constitutional protection for “the right to life of the unborn,” which was deemed “equal” to the right to life of the “mother.” Since then, enshrining fetal rights in constitutions and in legislation has emerged as a key part of anti-abortion campaigning. This Article traces the constitutionalization of fetal rights in Ireland and its implications for law, politics, and women. In so doing, it provides a salutary tale of such an approach. …
Executive Acquiescence To Constitutional Norms And Judicial Decision-Making In South Africa, Andrew Konstant, Shayda Vance
Executive Acquiescence To Constitutional Norms And Judicial Decision-Making In South Africa, Andrew Konstant, Shayda Vance
University of Miami International and Comparative Law Review
No abstract provided.
“To Assemble Together For Their Common Good”: History, Ethnography, And The Original Meanings Of The Rights Of Assembly And Speech, Saul Cornell
Fordham Law Review
The Whiskey Rebellion is not generally a major focus in constitutional histories or casebooks. Given this fact, it is hardly surprising that the 1795 case Respublica v. Montgomery seldom figures as more than a minor footnote in scholarly writing about early American constitutional development, if it receives any attention at all. The case has little precedential value for modern First Amendment doctrine and only obliquely implicates larger jurisprudential questions about the rights of assembly and freedom of expression. In strictly doctrinal terms, Montgomery is primarily about the obligation of a justice of the peace to put down a riot, not …
Historians And The New Originalism: Contextualism, Historicism, And Constitutional Meaning, Martin S. Flaherty
Historians And The New Originalism: Contextualism, Historicism, And Constitutional Meaning, Martin S. Flaherty
Fordham Law Review
Toward that end, this Foreword addresses three matters. First, it considers why the use of history in constitutional interpretation is inescapable. Next, it suggests that the Essays in this forum do not go far enough in debunking the idea of “public meaning” originalism as a serious alternative to previous approaches. Finally, the balance of this Foreword reviews the also perhaps inescapable misuses of history that constitutional interpretation invites and considers the type of misuse that public meaning originalism represents.
Historicism And Holism: Failures Of Originalist Translation, Jonathan Gienapp
Historicism And Holism: Failures Of Originalist Translation, Jonathan Gienapp
Fordham Law Review
For as long as the U.S. Constitution has existed, Americans have appealed to the history of its creation to interpret its meaning. But only since the advent of originalism—the well-known constitutional theory that requires interpreting the Constitution today in accordance with its original meaning—has historical study been so immediately implicated by constitutional interpretation. Despite potential, though, for meaningful exchange between originalists and historians, little has taken place. That originalism plays an ever-growing role in contemporary political culture only makes the lack of dialogue all the more unfortunate.
Outsourcing The Law: History And The Disciplinary Limits Of Constitutional Reasoning, Helen Irving
Outsourcing The Law: History And The Disciplinary Limits Of Constitutional Reasoning, Helen Irving
Fordham Law Review
Debates about the use of history in constitutional interpretation find their primary nourishment in the originalism debate. This has generated a vast amount of literature, but also narrowed the terms of the debate. Originalism is a normative commitment wrapped in a questionable methodological confidence. Regardless of the multiple forms originalism takes, originalists are confident that the meaning (in the sense of intention) that animated the framing of the Constitution can be ascertained and, indeed, that they can ascertain it. The debate has largely focused, then, on whether modern-day scholars and jurists can ascertain original historical meaning or, alternatively, whether they …
Tone Deaf To The Past: More Qualms About Public Meaning Originalism, Jack Rakove
Tone Deaf To The Past: More Qualms About Public Meaning Originalism, Jack Rakove
Fordham Law Review
With some apologies for a vast degree of oversimplification, let us stipulate that there are two main forms of originalism. One is known as “semantic” or “public meaning” originalism. Its leading advocates include Lawrence Solum, Keith Whittington, and Randy Barnett (professional friends, all). The leading premise of semantic originalism is that the meaning of the constitutional text—or, more specifically, of its individual clauses—was fixed at the moment of its adoption. Under this view, the goal of constitutional interpretation is to recover that original meaning, and the best way to do that pivots on reconstructing how an informed reader, whether a …
Fundamental Unenumerated Rights Under The Ninth Amendment And The Privileges Or Immunities Clause, Adam Lamparello
Fundamental Unenumerated Rights Under The Ninth Amendment And The Privileges Or Immunities Clause, Adam Lamparello
Akron Law Review
The failure to link the Ninth Amendment and Privileges or Immunities Clause for the purpose of creating unenumerated fundamental rights has been a persistent but rarely discussed aspect of the Court’s jurisprudence. That should change. There need not be an ongoing tension between the Court’s counter-majoritarian role and the authority of states to govern through the democratic process. If the Constitution’s text gives the Court a solid foundation upon which to recognize new rights and thereby create a more just society, then the exercise of that power is fundamentally democratic. The Ninth Amendment and Privileges or Immunities Clause provides that …
Liberty At The Borders Of Private Law, Donald J. Smythe
Liberty At The Borders Of Private Law, Donald J. Smythe
Akron Law Review
Liberty is both dependent upon and limited by the State. The State protects individuals from the coercion of others, but paradoxically, it must exercise coercion itself in doing so. Unfortunately, the reliance on the State to deter coercion raises the possibility that the State’s powers of coercion might be abused. There is, not surprisingly, therefore, a wide range of literature on the relationship between law and liberty, but most of it focuses on the relationship between public law and liberty. This Article focuses on the relationship between private law and liberty. Private laws are enforced by courts. Since the judiciary …
Federalism, Federal Courts, And Victims' Rights, Michael E. Solimine, Kathryn Elvey
Federalism, Federal Courts, And Victims' Rights, Michael E. Solimine, Kathryn Elvey
Catholic University Law Review
One of the most striking developments in American criminal law and procedure in the past four decades has been the widespread establishment of victims’ rights at both the federal and state levels. A conspicuous exception to the success of the victims’ rights movement has been the failure of Congress to pass a proposed amendment to the U.S. Constitution that would uniformly establish such rights in all federal and state courts. Advanced by both private organizations and state officials, and with bipartisan support in Congress, bills establishing a Victims’ Rights Amendment (VRA) have been introduced several times in the past three …
Book Review: Nothing To Lose But Our Chains: On Constitutional Disobedience, By Louis Michael Seidman, Carissima Mathen
Book Review: Nothing To Lose But Our Chains: On Constitutional Disobedience, By Louis Michael Seidman, Carissima Mathen
Osgoode Hall Law Journal
Book review of Nothing To Lose But Our Chains: On Constitutional Disobedience, by Louis Michael Seidman.
Federalism As A Constitutional Principle, Ernest Young
Federalism As A Constitutional Principle, Ernest Young
University of Cincinnati Law Review
Justice O’Connor rightly called federalism “our oldest question of constitutional law.”1 But the constitutional balance between the nation and the states is hardly what the cool kids are talking about these days. My first-year con law students show up each Fall expecting to learn about same-sex marriage, flag burning, and abortion; they’re plainly disappointed when they pick up the syllabus and see how much of the course is going to be about government structure.
The first part of my talk resists that intuition. The notion that federalism is passé is so tragically wrongheaded that I can’t bear to leave it …
The Interdependence Of Our Freedoms, Warren E. Burger
The Interdependence Of Our Freedoms, Warren E. Burger
Akron Law Review
IF I WERE TO GIVE A TITLE to what I want to say tonight, in this Bicentennial program, I think I would call it "The Interdependence of our Freedoms" and, in a sense, that is simply a more formal way of saying what the leaders of our revolution told each other, and the people, 200 years ago: we must hang together, or we will hang separately
The Hohfeldian Approach To Constitutional Cases, H. Newcomb Morse
The Hohfeldian Approach To Constitutional Cases, H. Newcomb Morse
Akron Law Review
INFERRED, OR AT THE MOST rebuttably presumed, is a slight acquaintanceship on the part of the reader with the work on jural opposites and jural correlatives by Professor W. Newcomb Hohfeld. The Founding Fathers, as though anticipating the coming of the Messianic logician, used all of the four Hohfeldian gravamen terms-rights, privileges, powers and immunities-in the Constitution of the United States,' and for this reason the author perceives a nexus between Hohfeldian logic and constitutional construction. The appropriate initial touchstone for contemporary use of this theory could appear to be the 1968 case of Flast v. Cohen, considering Mr. Justice …
The Declaration As Ur-Constitution: The Bizarre Jurisprudential Philosophy Of Professor Harry V. Jaffa, Patrick M. O'Neil
The Declaration As Ur-Constitution: The Bizarre Jurisprudential Philosophy Of Professor Harry V. Jaffa, Patrick M. O'Neil
Akron Law Review
In his most recent work, Original Intent and the Framers of the Constitution: A Disputed Question, Professor Harry V. Jaffa finally has put together in one place the core of his constitutional hermeneutic with all the attendant elements of his jurisprudential philosophy. Stated in oversimplified terms, perhaps, Dr. Jaffa sees the Declaration of Independence as the source of the principles embodied in the Constitution of the United States and finds the Declaration, furthermore, to be an indispensable aid to the correct interpretation of that later document. In order to comprehend the error of Jaffa's claims, one must first consider several …
The Constitutional Right To Suicide, The Quality Of Life, And The "Slippery-Slope": An Explicit Reply To Lingering Concerns, G. Steven Neeley
The Constitutional Right To Suicide, The Quality Of Life, And The "Slippery-Slope": An Explicit Reply To Lingering Concerns, G. Steven Neeley
Akron Law Review
[M]any courts and scholars appear to be motivated by yet another and more implicit concern with the so-called "quality of life" argument. [...] This ofttimes subtle design ultimately proves to be nothing more than a variation of the "slippery-slope" argument. This paper will contend that such arguments are logically fallacious and, at best, sway only by emotional appeal. As such, this style of argument should be afforded little forensic weight as it serves only to further confuse the debate over the constitutionality of selfdirected death.
Why A Fundamental Right To A Quality Education Is Not Enough, James Wilson
Why A Fundamental Right To A Quality Education Is Not Enough, James Wilson
Akron Law Review
This article relies upon the political and economic analysis of such great thinkers as Aristotle and Rousseau to understand and normatively evaluate constitutional caselaw in general and education cases in particular. The article’s title contains its conclusion: a judicially created right to a quality education is a laudable, but possibly counterproductive and definitely insufficient condition, for creating a humane constitutional system. The rest of society needs to do far more to protect the average citizen and worker from the ever-ravenous ruling class. All the edification in the world will not mean much if there are only a few decent jobs …
Citizenship Education And The Free Exercise Of Religion, Tyll Van Geel
Citizenship Education And The Free Exercise Of Religion, Tyll Van Geel
Akron Law Review
Part One of this article provides a broad-brush overview of constitutional doctrine as it bears on citizenship education in the public schools. The remaining parts of the article focus on a Free Exercise challenge to the introduction of a Callaneseque program of citizenship education in a public school. Part Two thus explicates Callan’s theory. Part Three outlines my approach to the Free Exercise Clause. Part Four applies that approach to a challenge brought against a Callanesque program of citizenship education. Part Five takes up other possible rights-based limits on the education power and offers a suggestion regarding how citizenship education …
The Passing Of The Cardozo Generations, Stephen E. Gottlieb
The Passing Of The Cardozo Generations, Stephen E. Gottlieb
Akron Law Review
I want to make the following three points:
First, constitutional discourse has changed from the consequentialism of the generations of lawyers and judges who followed the model of Benjamin N. Cardozo to the formalism now ascendant in bench and bar.
Second, this change in constitutional rhetoric and argument has widened the disjunctions in argument. Polling data make clear that people have their own views of the Constitution. Knowledge about contrary official interpretations gives them vocabulary, but is relatively unlikely to change minds. Moral arguments and appeals to self-interest are more effective with the public.
Third, one consequence is that both …
Thinking About The Constitution At The Cusp, Mark Tushnet
Thinking About The Constitution At The Cusp, Mark Tushnet
Akron Law Review
Marshall’s understanding that schools have an implicit curriculum might be a better guide to thinking about what we should teach about the Constitution in this century than any substantive points I might make. One controversial example may illustrate Marshall’s understanding: just as he asked what lesson would be taught by delaying desegregation, so we might ask, “What lesson will be taught about the nature of our constitutional community if we adopt a large-scale system of vouchers that parents can use to assist them in sending their children to non-public schools?” Such a system would demonstrate B and would teach our …
Teaching Slavery In American Constitutional Law, Paul Finkelman
Teaching Slavery In American Constitutional Law, Paul Finkelman
Akron Law Review
From 1787 until the Civil War, slavery was probably the single most important economic institution in the United States. On the eve of the Civil War, slave property was worth at least two billion dollars. In the aggregate, the value of all the slaves in the United States exceeded the total value of all the nations railroads or all its factories. Slavery led to two major political compromises of the antebellum period, as well as to the most politically divisive Supreme Court decision in our history. Vast amounts of political and legal energy went into dealing with the institution. It …
Teaching Free Speech From An Incomplete Fossil Record, Michael Kent Curtis
Teaching Free Speech From An Incomplete Fossil Record, Michael Kent Curtis
Akron Law Review
The second part of this symposium has been devoted to how we teach the Constitution. It has emphasized what gets left out. The reader will see a pattern. Paul Finkelman is a leading scholar on the law of slavery and the Constitution. Paul thinks – and I believe he is correct – that the immense influence of slavery on American constitutional law is too often neglected in our constitutional law courses. James Wilson has studied how political philosophers – Aristotle, Rousseau, James Harrington, and others – have understood the distribution of wealth as a central factor affecting how the constitution …
Education And The Constitution: Shaping Each Other & The Next Century, Elizabeth Reilly
Education And The Constitution: Shaping Each Other & The Next Century, Elizabeth Reilly
Akron Law Review
In evaluating patients’ potential legal remedies, this Comment explores 1) the emergence of managed care organizations in the United States; 2) the creation of the Employee Retirement Income Security Act of 1974 (“ERISA”) and how it impacts patients’ claims against their MCOs; 3) the question of “quantity” versus “quality” in evaluating whether ERISA preemption exists; 4) three theories (direct liability, breach of fiduciary duty, and vicarious liability) used to hold MCOs liable for injuries resulting from malpractice or the wrongful denial of benefits; 5) state legislative attempts to circumvent ERISA’s inequitable preemption of claims; and 6) why, given ERISA’s failure …
John A. Bingham And The Story Of American Liberty: The Lost Cause Meets The "Lost Clause", Michael Kent Curtis
John A. Bingham And The Story Of American Liberty: The Lost Cause Meets The "Lost Clause", Michael Kent Curtis
Akron Law Review
Nations have stories too. Ours is a story about the American Revolution against monarchy and aristocracy, a revolution based on the faith that all people are created equal and endowed by their Creator with certain unalienable rights. The revolution espoused the ideal that legitimate governmental power comes only from the consent of the governed.
In the old world, kings were sovereign. In America, the sovereign was “the people.” That ideal appeared in the preamble of the Constitution—a preamble that declared (somewhat inaccurately) that the Constitution came from “we the people” and was designed to assure liberty and justice. Though we …
Unintended Consequences Of The Fourteenth Amendment And What They Tell Us About Its Interpretation, Richard L. Aynes
Unintended Consequences Of The Fourteenth Amendment And What They Tell Us About Its Interpretation, Richard L. Aynes
Akron Law Review
Much of the literature, understandably, seeks to find out what the framers of the amendment or the ratifiers of the amendment “intended.”...This article treats that issue as well, but begins with a different question: Does the amendment have consequences which were unintended by the framers? Over one and a quarter centuries ago, Justice Joseph Bradley answered that question in the affirmative: “It is possible that those who framed the article were not themselves aware of the far ranging character of its terms.” I suggest those unintended consequences include the effect of the Citizenship Clause on the force of the Fourteenth …