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Full-Text Articles in Law
Originalism, Popular Sovereignty And Reverse Stare Decisis, Kurt T. Lash
Originalism, Popular Sovereignty And Reverse Stare Decisis, Kurt T. Lash
Law Faculty Publications
Although all interpretive methods must grapple with the issue of stare decisis, the issue is particularly acute for originalists due to the potentially radical discontinuity between original meaning and modern doctrine. An unmediated enforcement of original understanding of the Constitution would likely reverse countless precedents and impose unacceptably high costs in terms of the rule of law. On the other hand, upholding a precedent despite its variance with the original understanding undermines the very legitimacy of legal review according to most theories of originalism. Focusing on the most common normative basis for originalism, popular sovereignty, the article identifies those cases …
Minority Report: John Marshall And The Defense Of The Alien And Sedition Acts, Kurt T. Lash
Minority Report: John Marshall And The Defense Of The Alien And Sedition Acts, Kurt T. Lash
Law Faculty Publications
In 1799, the Federalist minority of the Virginia House of Delegates produced an extended defense of the Alien and Sedition Acts. This Minority Report responded to Madison's famous Virginia Resolutions and efforts by Virginia Republicans to tar the Adams Administration with having exceeded its powers under the federal Constitution. Originally attributed to John Marshall by biographer Albert Beveridge, recent biographies of Marshall have omitted the episode or rejected Beveridge's claim. The current editors of the Papers of John Marshall omitted the Minority Report from their multi-volume collection of Marshall's work and have successfully lobbied editors of similar collections to remove …