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Articles 1 - 7 of 7
Full-Text Articles in Law
Unenumerated Rights Under The U.S. Constitution, Thomas B. Mcaffee
Unenumerated Rights Under The U.S. Constitution, Thomas B. Mcaffee
Scholarly Works
The symbol of modern constitutional law, for good or ill, is Roe v. Wade, the Supreme Court’s abortion decision. From the beginning, the big question has been, where in the text of the Constitution do were find this “right of privacy” that secures the right to choose abortion? Some scholars have argued that such a right could not be found in the text or structure of the Constitution. One powerful counter stems from a textual approach to giving effect to the Constitution. In this article, the author argues that, if we look carefully enough at the text and history, …
A Plea For Rationality And Decency: The Disparate Treatment Of Legal Writing Faculties As A Violation Of Both Equal Protection And Professional Ethics, Peter Brandon Bayer
A Plea For Rationality And Decency: The Disparate Treatment Of Legal Writing Faculties As A Violation Of Both Equal Protection And Professional Ethics, Peter Brandon Bayer
Scholarly Works
This article builds on the work of others by demonstrating that as a matter of academic ethics, informed by cardinal legal standards of decency, the disparate treatment and adverse terms and conditions imposed on writing professors are not simply unfair but defy the ethical aspirations of American law schools. Specifically, as the construct for analysis, this article establishes and utilizes the proposition that the discordant status of legal writing professors fails to satisfy minimal professional ethics. As a model, this article shows that it is not even minimally rational under the Equal Protection Clause of the United States Constitution, our …
Printz, The Unitary Executive, And The Fire In The Trash Can: Has Justice Scalia Picked The Court's Pocket?, Jay S. Bybee
Printz, The Unitary Executive, And The Fire In The Trash Can: Has Justice Scalia Picked The Court's Pocket?, Jay S. Bybee
Scholarly Works
In Printz v. United States (1997), the Court held that certain sections of the Brady Handgun Violence Prevention Act were unconstitutional. Until the Attorney General set up a national system, the Act required the chief local law enforcement official to make certain background checks. The Court held that Congress exceeded its authority by requiring local law enforcement officials to take this action. Writing for the majority, Justice Scalia “conclude[d] categorically . . . ‘The Federal Government may not compel the States to enact or administer a federal regulatory program.” ’ The Court offered two justifications. First, these commands to the …
History, Legal Scholarship, And Latcrit Theory: The Case Of Racial Transformations Circa The Spanish American War, 1896-1900, Sylvia R. Lazos
History, Legal Scholarship, And Latcrit Theory: The Case Of Racial Transformations Circa The Spanish American War, 1896-1900, Sylvia R. Lazos
Scholarly Works
The period from 1896 to 1900, the period prior to, during, and immediately following the Spanish American War, which became known to Americans as the “splendid little war,” was a momentous time. An in-depth study of this five-year period--the events leading to the Spanish American War, the War itself and its aftermath--yields a rich and deep understanding of themes at the core of LatCrit theory. This is a key turning point in racial formation of Latino/as, American foreign policy, and American democracy. The U.S. abandoned its isolationist stance, and awkwardly embraced its “duty and obligation” as a “benevolent” world power. …
Inalienable Rights, Legal Enforceability, And American Constitutions: The Fourteenth Amendment And The Concept Of Unenumerated Rights, Thomas B. Mcaffee
Inalienable Rights, Legal Enforceability, And American Constitutions: The Fourteenth Amendment And The Concept Of Unenumerated Rights, Thomas B. Mcaffee
Scholarly Works
It has become common to believe that those who ratified the Fourteenth Amendment “incorporated” not only the specific guarantees of the federal Bill of Rights, but also the other fundamental rights “retained by the people” in the Ninth Amendment. Even among those who acknowledge that the Ninth Amendment was originally a “federalism” provision that simply “retained” all that had not been granted as “powers” to the federal government are those who contend that, in light of the adoption of similar provisions in the state constitutions, by 1866 this language had become a free-floating affirmation of unenumerated rights. This Article attempts …
Does The Federal Constitution Incorporate The Declaration Of Independence?, Thomas B. Mcaffee
Does The Federal Constitution Incorporate The Declaration Of Independence?, Thomas B. Mcaffee
Scholarly Works
A standard view at the time of the adoption of the Constitution was that “a constitution does not in itself imply any more than a declaration of the relation which the different parts of the government have to each other, but does not imply security for the rights of individuals.” The drafters of the state constitutions had “assumed that government had all power except for specific prohibitions contained in a bill of rights.” When the federal Constitution was transmitted to the states by Congress, Nathaniel Gorham of Massachusetts defended the omission of a bill of rights based on the federal …
The Constitution As Based On The Consent Of The Governed—Or, Should We Have An Unwritten Constitution?, Thomas B. Mcaffee
The Constitution As Based On The Consent Of The Governed—Or, Should We Have An Unwritten Constitution?, Thomas B. Mcaffee
Scholarly Works
It is useful to embrace continuity in describing basic differences we have in giving effect to the Constitution, especially if particular ways of communicating help us convey and understand what is at stake. The individual who originated the term “non-interpretivist” to describe judicial review implementing the unwritten constitution, for example, continues to believe that the best approach to constitutional interpretation is not “textualist,” but is properly characterized as “supplemental.” In his view, “much American constitutional adjudication, including but not limited to decisions under due process liberty and the right of privacy, involves the interpretation of an unwritten and essentially common …