Law Commons^™

A Meditation On The Thirteenth Amendment And Constitutional Redemption, Darrell A. H. Miller

Faculty Scholarship

No abstract provided.

Evolution Of Legal Topics, Rights And Obligations In The United States, Roberto Rosas

Faculty Articles

What new constitutional rights does the American Legal system have to offer? The United States Constitution is a document that continues to be interpreted every year. The Supreme Court hears recent cases with the purpose of interpreting the meaning of the Constitution. Since the creation of the Supreme Court, the Constitution has been analyzed in different ways – some interpretations lasting decades and some amendments going through changes depending on the different ideologies of the Justices on the Court.

This article discusses some of the rights established by the Supreme Court from 2016 to 2019 and provides the background as …

The Rugged Individual's Guide To The Fourth Amendment: How The Court's Idealized Citizen Shapes, Influences, And Excludes The Exercise Of Constitutional Rights, Scott E. Sundby

Articles

Few figures inspire us like individuals who stand up for their rights and beliefs despite the peril that may follow. One cannot help but feel awe looking at the famous photograph of the lone Tiananmen

Square protestor facing down a line of Red Army tanks, his willowy frame clothed in a simple white shirt and black pants as he holds a shopping bag. Or who can help but feel humbled by the courage of Rosa Parks, a seamstress, who was willing to be arrested rather than sit in the back of the bus?

But while these stories of everyday individuals …

Treaty Termination And Historical Gloss, Curtis A. Bradley

Faculty Scholarship

The termination of U.S. treaties provides an especially rich example of how governmental practices can provide a “gloss” on the Constitution’s separation of powers. The authority to terminate treaties is not addressed specifically in the constitutional text and instead has been worked out over time through political-branch practice. This practice, moreover, has developed largely without judicial review. Despite these features, Congress and the President—and the lawyers who advise them—have generally treated this issue as a matter of constitutional law rather than merely political happenstance. Importantly, the example of treaty termination illustrates not only how historical practice can inform constitutional understandings …

Unbundling Constitutionality, Richard A. Primus

Articles

Constitutional theory features a persistent controversy over the source or sources of constitutional status, that is, over the criteria that qualify some rules as constitutional rules. This Article contends that no single criterion characterizes all of the rules that American law treats as constitutional, such that it is a mistake to think of constitutionality as a status with necessary conditions. It is better to think of constitutionality on a bundle-of-sticks model: different attributes associated with constitutionality might or might not be present in any constitutional rule. Analysts should often direct their attention more to the separate substantive properties that are …

The State-Application-And-Convention Method Of Amending The Constitution: The Founding Era Vision, Robert G. Natelson

Faculty Law Review Articles

No abstract provided.

Proposing Constitutional Amendments By Convention: Rules For Governing The Process, Robert G. Natelson

Faculty Law Review Articles

Much of the mystery surrounding the Constitution's state-application-and-convention amendment process is unnecessary as history and case law enable us to resolve most questions. This article is the first in legal literature to access the full Founding-Era record on the subject, including the practices of inter-colonial and interstate conventions held during the 1770s and 1780s. Relying on that record, together with post-Founding practices, understandings, and case law, this article clarifies the rules governing applications and convention calls, and the roles of legislatures and conventions in the process. The goal of the article is objective exposition rather tan advocacy or special pleading.

Case For Calling An Article V Convention, Paul D. Carrington

Faculty Scholarship

No abstract provided.

Constitutional Expectations, Richard A. Primus

Articles

The inauguration of Barack Obama was marred by one of the smallest constitutional crises in American history. As we all remember, the President did not quite recite his oath as it appears in the Constitution. The error bothered enough people that the White House redid the ceremony a day later, taking care to get the constitutional text exactly right. Or that, at least, is what everyone thinks happened. What actually happened is more interesting. The second time through, the President again departed from the Constitution's text. But the second time, nobody minded. Or even noticed. In that unremarked feature of …

Amending The Exceptions Clause, Joseph Blocher

Faculty Scholarship

Jurisdiction stripping is the new constitutional amendment, and the Exceptions Clause is the new Article V. But despite legal academia’s long-running obsessions with the meaning of constitutional amendment and the limits (if any) on Congress’s power to control federal jurisdiction, we still lack even a basic understanding of how these two forms of constitutional politicking interact. As legislators increasingly propose and pass jurisdiction-stripping legislation and pursue politically charged constitutional amendments, these constitutional processes have begun to step off of the pages of law reviews and into the halls of Congress. The looming collision between them makes it all the more …

Quintessential Elements Of Meaningful Constitutions In Post-Conflict States, William W. Van Alstyne

Faculty Scholarship

This examination compares several successful constitutions formulated to govern countries just formed from the conclusion of armed conflicts (including the U.S.). Some of the most important elements gleaned from these successful constitutions include an independent court before which one may appeal to the new constitution because such a constitution adequately secures the integrity of the court itself.

The Colorado Constitution In The New Century, Richard B. Collins

Publications

TABOR, gay marriage, pit bulls, guns, redistricting, ethics in government, school vouchers, and minimum wage have been on Colorado's constitutional agenda for the past seven years. Dale Oesterle and I authored a book-length study of the Colorado Constitution through 2001. This article reviews amendments and judicial decisions arising since. It should surprise no one that TABOR has generated by far the most decisions.

Constitutional Existence Conditions And Judicial Review, Matthew D. Adler, Michael C. Dorf

Faculty Scholarship

Although critics of judicial review sometimes call for making the entire Constitution nonjusticiable, many familiar norms of constitutional law state what we call "existence conditions" that are necessarily enforced by judicial actors charged with the responsibility of applying, and thus as a preliminary step, identifying, propositions of sub-constitutional law such as statutes. Article I, Section 7, which sets forth the procedures by which a bill becomes a law, is an example: a putative law that did not go through the Article I, Section 7 process and does not satisfy an alternative test for legal validity (such as the treaty-making provision …

Ackerman's Proposal For Popular Constitutional Lawmaking: Can It Realize His Aspirations For Dualist Democracy?, Philip J. Weiser

Publications

No abstract provided.

Abstract Democracy: A Review Of Ackerman's We The People, Terrance Sandalow

Reviews

We the People: Foundations is an ambitious book, the first of three volumes in which Professor Ackerman proposes to recast conventional understanding of and contemporary debate about American constitutional law. Unfortunately, the book's rhetoricinflated, self-important, and self-congratulatory-impedes the effort to come to terms with its argument. How, for example, does one respond to a book that opens by asking whether the reader will have "the strength" to accept its thesis? Or that announces the author's intention of "engaging" two of the most influential works of intellectual history of the past several decades-and then discusses one in two and one-half pages …

The Bill Of Rights And Originalism, Gerard V. Bradley

Journal Articles

Professor Bradley begins the final installment of the University of Illinois Law Review's year-long tribute to the Bill of Rights by proposing that the first ten Amendments, like the Constitution itself, be interpreted according to the original understanding of their ratifiers. Professor Bradley, though, narrows the scope of the exegetical inquiry to what he proposes is the only sound originalism - plain meaning, historically recovered. Professor Bradley argues that interpreting the Bill of Rights according to the text's plain meaning among persons politically active at the time of drafting avoids both the inflexibility and philosophical deficiencies of "snapshot" conservative originalism …

Notes On A Bicentennial Constitution: Part I, Processes Of Change, William W. Van Alstyne

Faculty Scholarship

With the approach of the Bill of Rights bicentennial, this paper takes the cause for celebration as an equally important occasion for critique. This work argues that the most distinguishing aspects of our Constitution are not the Bill of Rights, federalism, and separation of powers, but rather the availability of judicial review, the political insulation of federal judges, and the limited mechanisms available for constitutional change.

Constitutional Interpretation, Terrance Sandalow

Articles

"[We] must never forget," Chief Justice Marshall admonished us in a statement pregnant with more than one meaning, "that it is a constitution we are expounding."' Marshall meant that the Constitution should be read as a document "intended to endure for ages.to come, and, consequently, to be adapted to the various crises of human affairs."'2 But he meant also that the construction placed upon the document must have regard for its "great outlines" and "important objects."'3 Limits are implied by the very nature of the task. There is not the same freedom in construing the Constitution as in constructing a …

A Constitution For Every Man, William W. Van Alstyne

Faculty Scholarship

No abstract provided.

Constitutional Liberties And Statutory Construction, Frank Edward Horack Jr.

Articles by Maurer Faculty

No abstract provided.

Historical Myth And Constitutional Absolutism, Hugh Evander Willis

Articles by Maurer Faculty

No abstract provided.

Real Significance Of The Proposed Michigan Beer And Wine Amendment, Edwin C. Goddard

Articles

DISCUSSION of proposed prohibitory amendments to Constitutions, State or Federal, are usually regarded as part of the wet and dry fight in which lawyers are interested only as citizens. Before the recent Cleveland Meeting of the American Bar Association the bar of the country was circularized by a protest, signed by a number of very well known lawyers, urging the bar to take action against putting into the fundamental law, the Constitution, such matters as the regulation of what the people shall drink. These lawyers presented their case at the Cleveland meeting and vigorously attempted to induce the American Bar …

Referendum As Applied To Proposed Amendments Of The Federal Constitution, Ralph W. Aigler

Articles

That various aspects of the fight against the National Prohibition (the i8th) Amendment would result in litigation was to be expected. The attack at present seem& to be based on the use of the provisions for referendum found in a dozen or more of the states the votes of which went to make up the necessary three-fourths. Three very recent decisions or expressions of opinion by state courts of last resort are in this respect extremely interesting.

Safeguarding The Criminal Defendant, Edson R. Sunderland

Articles

Every now and then a new attack is made somewhere in the United States upon the rule prohibiting comment before the jury upon the fact that the defendant in a criminal case has not testified as a witness in his own behalf. At the present time an effort of this kind is being made in the Michigan legislature, and the introduction of the bill drew quite a little storm of protest from the State press as a dangerous inroad upon our ancient guarantees of personal liberty and security. In fact, however, it directly touches nothing more ancient than a statutory …

The American Bar Association's Meeting At Portland, Henry M. Bates

Articles

The meeting of the American Bar Association for 1907 was a notable one, both in respect of the attendance and in the importance of many of the matters discussed. Not only was the attendance unusually large, but the presence of many distinguished men from abroad who were delegates to the meetings of the International Law Association, held during the same week, added distinction to the gatherings. The meetings reflected significantly the discussion throughout the country upon the great legal and political questions which the changing conditions in the commercial and industrial world have brought so prominently before the nation during …