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Full-Text Articles in Law
Contingent Constitutionalism: State And Local Criminal Laws And The Applicability Of Federal Constitutional Rights, Wayne A. Logan
Contingent Constitutionalism: State And Local Criminal Laws And The Applicability Of Federal Constitutional Rights, Wayne A. Logan
Scholarly Publications
Americans have long been bound by a shared sense of constitutional commonality, and the Supreme Court has repeatedly condemned the notion that federal constitutional rights should be allowed to depend on distinct state and local legal norms. In reality, however, federal rights do indeed vary, and they do so as a result of their contingent relationship to the diversity of state and local laws on which they rely. Focusing on criminal procedure rights in particular, this Article examines the benefits and detriments of constitutional contingency, and casts in new light many enduring understandings of American constitutionalism, including the effects of …
Ink Blot Or Not: The Meaning Of Privileges And/Or Immunities, Richard Aynes
Ink Blot Or Not: The Meaning Of Privileges And/Or Immunities, Richard Aynes
Akron Law Faculty Publications
This article examines the meaning of the terms privileges and immunities as used in Article IV of the U.S. Constitution and the Fourteenth Amendment. It begins by tracing the American use of the terms to April 10, 1606 in the first Charter of Virginia. Building upon the work of other scholars and citing original documents, it concludes that these words has a well-established meaning as “rights” well before the Fourteenth Amendment was adopted. The article notes that in Justice Miller’s decision in the Slaughter-House Cases he refers to the privileges and immunities of Corfield v. Coryell as “those rights which …
Proportionality Balancing And Global Constitutionalism, Jud Mathews, Alec Stone Sweet
Proportionality Balancing And Global Constitutionalism, Jud Mathews, Alec Stone Sweet
Journal Articles
Over the past fifty years, proportionality balancing – an analytical procedure akin to strict scrutiny in the United States – has become a dominant technique of rights adjudication in the world. From German origins, proportionality analysis spread across Europe, into Commonwealth systems (Canada, New Zealand, South Africa), and Israel; it has also migrated to treaty-based regimes, including the European Union, the European Convention on Human Rights, and the World Trade Organization. Part II proposes a theory of why judges are attracted to the procedure, an account that blends strategic and normative elements. Parts III and IV provide a genealogy of …
Developing A State Constitutional Law Strategy In New Mexico Criminal Prosecutions, J. Thomas Sullivan
Developing A State Constitutional Law Strategy In New Mexico Criminal Prosecutions, J. Thomas Sullivan
Faculty Scholarship
This article includes a review of the process by which the New Mexico courts have developed an independent state constitutional jurisprudence reflecting more expansive protections of individual rights than those afforded by the Federal Constitution, as interpreted in the decisions of the United States Supreme Court. It addresses the existing body of state constitutional law and suggests possibilities for further developments, including both the substantive aspects of state constitutional topics and the procedural requirements for asserting state constitutional protections as alternative sources for protection of individual rights. It documents how far New Mexico has come in developing a state constitutional …
Is The Constitution Libertarian?, Randy E. Barnett
Is The Constitution Libertarian?, Randy E. Barnett
Georgetown Law Faculty Publications and Other Works
Ever since Justice Holmes famously asserted that “the Constitution does not enact Mr. Herbert Spencer’s Social Statics,” academics have denied that the Constitution is libertarian. In this essay, I explain that the Constitution is libertarian to the extent that its original meaning respects and protects the five fundamental rights that are at the core of both classical liberalism and modern libertarianism. These rights can be protected both directly by judicial decisions and indirectly by structural constraints. While the original Constitution and Bill of Rights provided both forms of constraints, primarily on federal power, it left states free to violate the …