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Constitutional Law

Constitution

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Full-Text Articles in Law

Brief Of Amici Curiae Michael L. Rosin, David G. Post, David F. Forte, Michael Stokes Paulsen, And Sotirios Barber In Support Of Presidential Electors, David F. Forte, Michael L. Rosin, David G. Post, Michael Stokes Paulsen, Sotirios Barber Mar 2020

Brief Of Amici Curiae Michael L. Rosin, David G. Post, David F. Forte, Michael Stokes Paulsen, And Sotirios Barber In Support Of Presidential Electors, David F. Forte, Michael L. Rosin, David G. Post, Michael Stokes Paulsen, Sotirios Barber

Law Faculty Briefs

The Framers of the Constitution crafted the Electoral College to be an independent institution with the responsibility of selecting the President and Vice-President. Therefore, they intended each elector to exercise independent judgment in deciding whom to vote for. A state cannot revise the Constitution unilaterally by reducing the elector to a ministerial agent who must vote in a particular way or face a sanction. The question of each elector’s moral or political obligation is not before the Court. Nor is the desirability of the current electoral system. Rather, this case turns on what the Constitution allows, and what it ...


Do We Intend To Keep Our Republic?, John M. Greabe Feb 2020

Do We Intend To Keep Our Republic?, John M. Greabe

Law Faculty Scholarship

[Excerpt] Commentators recently have reminded us of a famous statement Benjamin Franklin allegedly made upon exiting Independence Hall on the final day of the 1787 Constitutional Convention. When asked whether the proposed Constitution would establish a monarchy or a republic, Franklin supposedly answered: "A republic, if you can keep it."

The anecdote, which both inspired the title of Supreme Court Justice Neil Gorsuch's recent book and was recounted by Speaker of the House Nancy Pelosi when she announced the impeachment inquiry into the conduct of the president, reminds us that our republican form of government is not to be ...


Why A Wealth Tax Is Definitely Constitutional, John R. Brooks, David Gamage Jan 2020

Why A Wealth Tax Is Definitely Constitutional, John R. Brooks, David Gamage

Georgetown Law Faculty Publications and Other Works

Wealth tax reform proposals are playing a major role in the 2020 presidential campaign. However, some opponents of these wealth tax reform proposals have claimed that a wealth tax would be unconstitutional. Other prominent critics have argued that wealth tax reforms are probably unconstitutional, so that, after review by the courts, the “likeliest outcome is that a wealth tax will raise exactly zero dollars.”

These claims are wrong. More precisely, these claims are wrong conditioned on wealth tax legislation being carefully drafted so as to ensure its constitutionality. As we will explain in this essay, properly drafted, wealth tax reform ...


Law Library Blog (January 2020): Legal Beagle's Blog Archive, Roger Williams University School Of Law Jan 2020

Law Library Blog (January 2020): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.


A Modest Proposal On Supreme Court Unanimity To Constitutionally Invalidate Laws, Dwight G. Duncan Oct 2019

A Modest Proposal On Supreme Court Unanimity To Constitutionally Invalidate Laws, Dwight G. Duncan

Faculty Publications

There is a problem in our constitutional history: the problem of split Supreme Court decisions invalidating democratically enacted laws. From Dred Scott[1] to Lochner[2] to Roe v. Wade[3] to Citizens United,[4] and even the recent Second Amendment decisions of Heller[5] and McDonald,[6] these patently fallible decisions on controversial political and social issues have divided the nation, politicized the Court, poisoned the Supreme Court nomination process and thwarted the political branches and democratic governance. Requiring Supreme Court unanimity to overturn legislation on constitutional grounds would therefore be morally and politically desirable. Why that is so ...


Article Ii Vests Executive Power, Not The Royal Prerogative, Julian Davis Mortenson Jun 2019

Article Ii Vests Executive Power, Not The Royal Prerogative, Julian Davis Mortenson

Articles

Article II of the United States Constitution vests “the executive power” in the President. For more than two hundred years, advocates of presidential power have claimed that this phrase was originally understood to include a bundle of national security and foreign affairs authorities. Their efforts have been highly successful. Among constitutional originalists, this so-called “Vesting Clause Thesis” is now conventional wisdom. But it is also demonstrably wrong. Based on an exhaustive review of the eighteenth-century bookshelf, this Article shows that the ordinary meaning of “executive power” referred unambiguously to a single, discrete, and potent authority: the power to execute law ...


Neglecting Nationalism, Gil Seinfeld May 2019

Neglecting Nationalism, Gil Seinfeld

Articles

Federalism is a system of government that calls for the division of power between a central authority and member states. It is designed to secure benefits that flow from centralization and from devolution, as well as benefits that accrue from a simultaneous commitment to both. A student of modern American federalism, however, might have a very different impression, for significant swaths of the case law and scholarly commentary on the subject neglect the centralizing, nationalist side of the federal balance. This claim may come as a surprise, since it is obviously the case that our national government has become immensely ...


Originalism Versus Living Constitutionalism: The Conceptual Structure Of The Great Debate, Lawrence B. Solum Apr 2019

Originalism Versus Living Constitutionalism: The Conceptual Structure Of The Great Debate, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

This Essay explores the conceptual structure of the great debate about “originalism” and “living constitutionalism.” The core of the great debate is substantive and addresses the normative question, “What is the best theory of constitutional interpretation and construction?” That question leads to others, including questions about the various forms and variations of originalism and living constitutionalism. Originalists argue that the meaning of the constitutional text is fixed and that it should bind constitutional actors. Living constitutionalists contend that constitutional law can and should evolve in response to changing circumstances and values. This Essay advances a metalinguistic proposal for classifying theories ...


Law Library Blog (March 2019): Legal Beagle's Blog Archive, Roger Williams University School Of Law Mar 2019

Law Library Blog (March 2019): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.


Withdrawing From Nafta, Alison Peck Mar 2019

Withdrawing From Nafta, Alison Peck

Faculty Scholarship

Since the 2016 campaign, Donald Trump has threatened to withdraw from NAFTA. Can he? The question is complex. For one thing, NAFTA is not a treaty negotiated under the Treaty Clause of the Constitution, but rather a congressional–executive agreement, a creature of dubious con- stitutionality and ill-defined withdrawal and termination parameters. This Article reviews the scope of those restrictions and concludes that unilateral presidential withdrawal from NAFTA, although not without support, is ultimately unlawful. On one hand, unilateral presidential withdrawal would be valid as a matter of international law, and the NAFTA Implementation Act appears to be designed to ...


The Imaginary Constitution, Suzanna Sherry Jan 2019

The Imaginary Constitution, Suzanna Sherry

Vanderbilt Law School Faculty Publications

How many ways can conservatives spin an originalist tale to support their deregulatory, small-government vision? The answer is apparently infinite. In a new book, Gary Lawson and Guy Seidman are the latest in a long line of scholars who insist that the real original meaning of the Constitution demands unwinding the regulatory state and substantially limiting the power of the federal government. They argue that the Constitution is a fiduciary instrument, specifically a power of attorney. After summarizing the book, this essay turns to three of its most important failings, each of which serves to make the book a work ...


The Influence Of The Warren Court And Natural Rights On Substantive Due Process, James Marmaduke Jan 2019

The Influence Of The Warren Court And Natural Rights On Substantive Due Process, James Marmaduke

Calvert Undergraduate Research Awards

Advanced Research Winner 2019:

While the concept of substantive due process has guided judicial decision making even prior to the Civil War, it has become a lightning rod among the juristic community especially since the 1960s. This controversy includes issues ranging from the applicability and reliability to the cogency and legitimacy of the doctrine of substantive due process Many scholars attribute the skepticism toward the concept of substantive due process to be the result of a paradigm shift in the middle of the 20th century when this concept transitioned from an economic and property rights based approach to one ...


The Elephant Problem, Richard Primus Jan 2019

The Elephant Problem, Richard Primus

Reviews

In their new book, "A Great Power of Attorney": Understanding the Fiduciary Constitution, Gary Lawson and Guy Seidman argue that, as a matter of original meaning, the Constitution should be understood as analogous to a power of attorney, that interpretive devices applicable to powers of attorney should therefore be used in constitutional interpretation, and that interpreting the Constitution that way would produce results congenial to modern libertarian preferences, such as the unconstitutionality of the Affordable Care Act and the invalidity, on nondelegation grounds, of much of the federal administrative state. But the book fails to carry any of its central ...


The Constitution As Poetry, Samuel J. Levine Jan 2019

The Constitution As Poetry, Samuel J. Levine

Scholarly Works

Building upon a body of scholarship that compares constitutional interpretation to biblical and literary interpretation, and relying on an insight from a prominent nineteenth century rabbinic scholar, this Article briefly explores similarities in the interpretation of the Torah—the text of the Five Books of Moses—and the United States Constitution. Specifically, this Article draws upon Rabbi Naftali Zvi Yehudah Berlin’s (“Netziv”) intriguing suggestion that the interpretation of the text of the Torah parallels the interpretation of poetry. According to Netziv, this parallel accounts for the practice of interpreting the Torah expansively in ways that derive substantive legal rules ...


The Most Revealing Word In The United States Report, Richard Primus Jan 2019

The Most Revealing Word In The United States Report, Richard Primus

Articles

The most prominent issue in NFIB v. Sebelius was whether Congress’s regulatory power under the Commerce Clause stops at a point marked by a distinction between “activity” and “inactivity.” According to the law’s challengers, prior decisions about the scope of the commerce power already reflected the importance of the distinction between action and inaction. In all of the previous cases in which exercises of the commerce power had been sustained, the challengers argued, that power had been used to regulate activity. Never had Congress tried to regulate mere inactivity. In NFIB, four Justices rejected that contention, writing that ...


The Declaration Of Independence And The American Theory Of Government: “First Come Rights, And Then Comes Government”, Randy E. Barnett Jan 2019

The Declaration Of Independence And The American Theory Of Government: “First Come Rights, And Then Comes Government”, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

The topic of this panel is the Declaration of Independence, to which I devoted a chapter of my recent book, Our Republican Constitution. I want to draw on that book to make five points.


Framer’S Intent: Gouverneur Morris, The Committee Of Style, And The Creation Of The Federalist Constitution, William M. Treanor Jan 2019

Framer’S Intent: Gouverneur Morris, The Committee Of Style, And The Creation Of The Federalist Constitution, William M. Treanor

Georgetown Law Faculty Publications and Other Works

At the end of the proceedings of the federal constitutional convention, the delegates appointed the Committee on Style and Arrangement to bring together the textual provisions that the convention had previously agreed to and to prepare a final constitution. Pennsylvania delegate Gouverneur Morris was assigned to draft the document for the committee, and, with few revisions and little debate, the convention subsequently adopted the Committee’s proposed constitution. For more than two hundred years, questions have been raised as to whether Morris as drafter covertly made changes in the text in order to advance his constitutional vision, but the legal ...


Deconstitutionalizing Dewey, Aaron Jay Saiger Jan 2019

Deconstitutionalizing Dewey, Aaron Jay Saiger

Faculty Scholarship

No abstract provided.


Hardball Vs. Beanball: Identifying Fundamentally Antidemocratic Tactics, Jed E. Shugerman Jan 2019

Hardball Vs. Beanball: Identifying Fundamentally Antidemocratic Tactics, Jed E. Shugerman

Faculty Scholarship

The “constitutional hardball” metaphor used by legal scholars and political scientists illuminates an important phenomenon in American politics, but it obscures a crisis in American democracy. In baseball, hardball encompasses legitimate tactics: pitching inside to brush a batter back but not injure, hard slides, hard tags. Baseball fans celebrate hardball. Many of the constitutional hardball maneuvers previously identified by scholars have been legitimate, if aggressive, constitutional political moves. But the label “hardball” has been interpreted too broadly to include illegitimate, fundamentally undemocratic tactics. I suggest a different baseball metaphor for such tactics: beanball, pitches meant to injure and knock out ...


Originalist Theory And Precedent: A Public Meaning Approach, Lawrence B. Solum Oct 2018

Originalist Theory And Precedent: A Public Meaning Approach, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

Much ink has already been spilled on the relationship of constitutional originalism to precedent (or, more specifically, the doctrine of stare decisis). The debate includes contributions from Randy Barnett, Steven Calabresi, Kurt Lash, Gary Lawson, John McGinnis with Michael Rappaport, Michael Paulsen, and Lee Strang, not to mention Justice Antonin Scalia—all representing originalism in some form. Living constitutionalism has also been represented both implicitly and explicitly, with important contributions from Phillip Bobbitt, Ronald Dworkin, Michael Gerhardt, Randy Kozel, and David Strauss. Some writers are more difficult to classify; Akhil Amar comes to mind. And there are many other contributions ...


Gamble V. U.S.: Brief Of Amici Curiae Law Professors In Support Of Petitioner, Stuart Banner, Paul Cassell Sep 2018

Gamble V. U.S.: Brief Of Amici Curiae Law Professors In Support Of Petitioner, Stuart Banner, Paul Cassell

Utah Law Faculty Scholarship

In this case currently before the U.S. Supreme Court, petitioner Gamble's brief demonstrates that there was no dual sovereignty doctrine before the mid-19th century. At the Founding and for several decades thereafter, a prosecution by one sovereign was understood to bar a subsequent prosecution by all other sovereigns. Dual sovereignty is thus contrary to the original meaning of the Double Jeopardy Clause. Defendants today enjoy a weaker form of double jeopardy protection than they did when the Bill of Rights was ratified.

But that fact only raises three further questions. First why did the Court erroneously conclude in ...


After All These Years, Lochner Was Not Crazy—It Was Good, Randy E. Barnett Jul 2018

After All These Years, Lochner Was Not Crazy—It Was Good, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

For this year’s Rosenkranz Debate, we have been asked to debate the question: Lochner v. New York: Still Crazy After All These Years? It is my job to defend the “negative” position. My burden is not to establish that Lochner was correctly decided, but merely that it was not “crazy.” I intend to meet that burden and exceed it. I intend to show how Lochner v. New York was not at all crazy; in fact, it was a reasonable and good decision.


Wrong Turn On The Ex Post Facto Clause, Paul D. Reingold, Kimberly Thomas Jun 2018

Wrong Turn On The Ex Post Facto Clause, Paul D. Reingold, Kimberly Thomas

Articles

The Ex Post Facto Clause bars any increase in punishment after the commission of a crime. But deciding what constitutes an increase in punishment can be tricky. At the front end of a criminal case, where new or amended criminal laws might lengthen prisoners’ sentences if applied retroactively, courts have routinely struck down such changes under the Ex Post Facto Clause. At the back end, however, where new or amended parole laws or policies might lengthen prisoners’ sentences in exactly the same way if applied retroactively, courts have used a different standard and upheld the changes under the Ex Post ...


A Study In Sovereignty: Federalism, Political Culture, And The Future Of Conservatism, Clint Hamilton Apr 2018

A Study In Sovereignty: Federalism, Political Culture, And The Future Of Conservatism, Clint Hamilton

Senior Honors Theses

This thesis confronts symptoms of an issue which is eroding at the principles of conservative advocacy, specifically those dealing with federalism. It contrasts modern definitions of federalism with those which existed in the late 1700s, and then attempts to determine the cause of the change. Concluding that the change was caused by a shift in American political identity, the author argues that the conservative movement must begin a conversation on how best to adapt to the change to prevent further drifting away from conservative principles.


The Fortification Of Inequality: Constitutional Doctrine And The Political Economy, Kate Andrias Mar 2018

The Fortification Of Inequality: Constitutional Doctrine And The Political Economy, Kate Andrias

Articles

As Parts I and II of this Essay elaborate, the examination yields three observations of relevance to constitutional law more generally: First, judge-made constitutional doctrine, though by no means the primary cause of rising inequality, has played an important role in reinforcing and exacerbating it. Judges have acquiesced to legislatively structured economic inequality, while also restricting the ability of legislatures to remedy it. Second, while economic inequality has become a cause célèbre only in the last few years, much of the constitutional doctrine that has contributed to its flourishing is longstanding. Moreover, for several decades, even the Court’s more ...


Newsroom: Interrogation Expert Warns Against Use Of Torture 2-2-2018, Roger Williams University School Of Law Feb 2018

Newsroom: Interrogation Expert Warns Against Use Of Torture 2-2-2018, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.


Why Federal Courts Apply The Law Of Nations Even Though It Is Not The Supreme Law Of The Land, Anthony J. Bellia, Bradford R. Clark Jan 2018

Why Federal Courts Apply The Law Of Nations Even Though It Is Not The Supreme Law Of The Land, Anthony J. Bellia, Bradford R. Clark

Journal Articles

We are grateful to the judges and scholars who participated in this Symposium examining our book, The Law of Nations and the United States Constitution. One of our goals in writing this book was to reinvigorate and advance the debate over the role of customary international law in U.S. courts. The papers in this Symposium advance this debate by deepening understandings of how the Constitution interacts with customary international law. Our goal in this Article is to address two questions raised by this Symposium that go to the heart of the status of the law of nations under the ...


Remedies And The Government's Constitutionally Harmful Speech, Helen Norton Jan 2018

Remedies And The Government's Constitutionally Harmful Speech, Helen Norton

Articles

Although governments have engaged in expression from their inception, only recently have we begun to consider the ways in which the government’s speech sometimes threatens our constitutional rights. In my contribution to this symposium, I seek to show that although the search for constitutional remedies for the government’s harmful expression is challenging, it is far from futile. This search is also increasingly important at a time when the government’s expressive powers continue to grow—along with its willingness to use these powers for disturbing purposes and with troubling consequences.

More specifically, in certain circumstances, injunctive relief, declaratory ...


Gerrymandering And Conceit: The Supreme Court's Conflict With Itself, Mckay Cunningham Jan 2018

Gerrymandering And Conceit: The Supreme Court's Conflict With Itself, Mckay Cunningham

Faculty Scholarship

In November 2016, a federal court struck as unconstitutional Wisconsin’s redistricting map under both the First Amendment and the Equal Protection Clause. The court’s decision in Whitford v. Gill marks the first time a federal court invalidated a redistricting map as unconstitutional for partisan gerrymandering in over thirty years. Wisconsin has appealed the decision to the United States Supreme Court, which recently granted review. The Supreme Court has long held that extreme partisan gerrymandering violates equal protection but has simultaneously refused to determine the merits of gerrymandering disputes, instead labeling them as non-justiciable political questions. In particular, the ...


Law Library Blog (January 2018): Legal Beagle's Blog Archive, Roger Williams University School Of Law Jan 2018

Law Library Blog (January 2018): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.