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John Marshall Law School

2012

Constitutional Law

Articles 1 - 3 of 3

Full-Text Articles in Law

The Birthright Citizenship Controversy: A Study Of Conservative Substance And Rhetoric, 18 Tex. Hisp. J. L. & Pol'y 49 (2012), Allen R. Kamp Jan 2012

The Birthright Citizenship Controversy: A Study Of Conservative Substance And Rhetoric, 18 Tex. Hisp. J. L. & Pol'y 49 (2012), Allen R. Kamp

UIC John Marshall Law School Open Access Faculty Scholarship

This essay is a critique of the conservative rhetoric used in attack of birthright citizenship--as granted by Clause One of the Fourteenth Amendment, which states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” The rhetoric of that attack violates the traditional canons of conservative argumentation and interpretation, such as original intent and textualism. As such, conservatives' arguments call into question the seriousness of their allegiance to these canons.

This article will not discuss the pros and cons of what we ...


The Framers' Federalism And The Affordable Care Act, 44 Conn. L. Rev. 1071 (2012), Steven D. Schwinn Jan 2012

The Framers' Federalism And The Affordable Care Act, 44 Conn. L. Rev. 1071 (2012), Steven D. Schwinn

UIC John Marshall Law School Open Access Faculty Scholarship

Federalism challenges to the Affordable Care Act ("ACA") are inspired by the relatively recent resurgence in federalism concerns in the Supreme Court's jurisprudence. Thus, ACA opponents seek to leverage the Court-created distinction between encouragement and compulsion (in opposition to Medicaid expansion), and the Court-created federalism concern when Congress regulates in a way that could destroy the distinction between what is national and what is local (in opposition to universal coverage).

But outside the jurisprudence, the text and history of constitutional federalism tell another story. The text and history suggest that the Constitution created a powerful federal government, of the ...


Does A Broad Free Exercise Right Require A Narrow Definition Of Religion, 39 Hastings Const. L.Q. 357 (2012), Donald L. Beschle Jan 2012

Does A Broad Free Exercise Right Require A Narrow Definition Of Religion, 39 Hastings Const. L.Q. 357 (2012), Donald L. Beschle

UIC John Marshall Law School Open Access Faculty Scholarship

In the 1990 case of Employment Division v. Smith, a sharply divided Supreme Court abandoned the routine application of strict scrutiny when considering Free Exercise Clause claims seeking exemption from generally applicable legal duties or prohibitions. The Court returned to an older view of the Free Exercise Clause as protecting believers only from government acts that were aimed specifically at beliefs, and that grew out of hostility to the religion rather than a desire to further legitimate secular goals.

Reaction to Smith was largely negative, and legislative and state court responses followed, seeking to restore strict scrutiny as the appropriate ...