Law Commons^™

Representative Self-Government And The Declaration Of Independence, Alexander Tsesis

Alexander Tsesis

Legal scholars typically treat the Declaration of Independence as a purely historical document, but as this article explains, the Declaration is relevant to legislative and judicial decisionmaking. After describing why this founding document contains legal significance, I examine two contemporary legal issues through the lens of the Declaration’s prescriptions.

Section 5 of the Fourteenth Amendment grants Congress the power to make laws that enforce the civil rights clauses in the amendment’s first four sections. In City of Boerne v. Flores and its progeny, however, the Supreme Court decided that it alone can identify fundamental rights and relegated Congress’s power under …

Due Process In Civil Commitments, Alexander Tsesis

Alexander Tsesis

In one of its most controversial decisions to date, United States v. Comstock, the Roberts Court upheld a federal civil commitment statute requiring only an intermediate burden of proof. The statute provided for the postsentencing confinement of anyone proven by “clear and convincing evidence” to be mentally ill and dangerous. The law relied on a judicial standard established more than thirty years before. The majority in Comstock missed the opportunity to reassess the precedent in light of recent psychiatric studies indicating that the ambiguity of available diagnostic tools can lead to erroneous insanity assessments and mistaken evaluations about patients’ likelihood …