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Religion And Theistic Faith: On Koppelman, Leiter, Secular Purpose, And Accomodations, Abner S. Greene Jan 2013

Religion And Theistic Faith: On Koppelman, Leiter, Secular Purpose, And Accomodations, Abner S. Greene

Faculty Scholarship

What makes religion distinctive, and how does answering that question help us answer questions regarding religious freedom in a liberal democracy? In their books on religion in the United States under our Constitution, Andrew Koppelman (DefendingAmerican Religious Neutrality) and Brian Leiter (Why Tolerate Religion?) offer sharply different answers to this set of questions. This review essay first explores why we might treat religion distinctively, suggesting that in our constitutional order, it makes sense to focus on theism (or any roughly similar analogue) as the hallmark of religious belief and practice. Neither Koppelman nor Leiter focuses on this, in part because ...


Judicial Review For Enemy Fighters: The Court’S Fateful Turn In Ex Parte Quirin, The Nazi Saboteur Case, Andrew Kent Jan 2013

Judicial Review For Enemy Fighters: The Court’S Fateful Turn In Ex Parte Quirin, The Nazi Saboteur Case, Andrew Kent

Faculty Scholarship

The emerging conventional wisdom in the legal academy is that individual rights under the U.S. Constitution should be extended to noncitizens outside the United States. This claim - called globalism in my article - has been advanced with increasing vigor in recent years, most notably in response to legal positions taken by the Bush administration during the war on terror. Against a Global Constitution challenges the textual and historical grounds advanced to support the globalist conventional wisdom and demonstrates that they have remarkably little support. At the same time, the article adduces textual and historical evidence that noncitizens were among the ...


Habeas Corpus, Protection, And Extraterritorial Constitutional Rights, Andrew Kent Jan 2012

Habeas Corpus, Protection, And Extraterritorial Constitutional Rights, Andrew Kent

Faculty Scholarship

This short essay is an exchange with Professor Steve Vladeck's about my Article entitled: Boumediene, Munaf, and the Supreme Court’s Misreading of the Insular Cases, 97 Iowa Law Review 101 (2011). My Article showed that the Supreme Court’s landmark ruling in Boumediene v. Bush relied on a demonstrably incorrect understanding of key precedents known as the Insular Cases, which arose from actions of the United States military and the new civil governments of the islands acquired by the United States at the turn of the twentieth century — Puerto Rico, the Philippines, Hawaii, and for a time Cuba ...


Boumediene, Munaf, And The Supreme Court's Misreading Of The Insular Cases , Andrew Kent Jan 2011

Boumediene, Munaf, And The Supreme Court's Misreading Of The Insular Cases , Andrew Kent

Faculty Scholarship

In 2008, the Supreme Court embraced both global constitutionalism - the view that the Constitution provides judicially enforceable rights to non-citizens outside the sovereign territory of the United States - and what I call human-rights universalism - the view that the Constitution protects military enemies during armed conflict. Boumediene v. Bush found a constitutional right to habeas corpus for non-citizens detained as enemy combatants at the Guantanamo Bay naval base in Cuba, while Munaf v. Geren - decided the same day as Boumediene and involving U.S. citizens detained in Iraq during the war there - hinted that the Due Process Clause might be a ...


Constitution And The Laws Of War During The Civil War, The Federal Courts, Practice & Procedure, Andrew Kent Jan 2009

Constitution And The Laws Of War During The Civil War, The Federal Courts, Practice & Procedure, Andrew Kent

Faculty Scholarship

This Article uncovers the forgotten complex of relationships between the U.S. Constitution, citizenship and the laws of war. The Supreme Court today believes that both noncitizens and citizens who are military enemies in a congressionally-authorized war are entitled to judicially-enforceable rights under the Constitution. The older view was that the U.S. government’s military actions against noncitizen enemies were not limited by the Constitution, but only by the international laws of war. On the other hand, in the antebellum period, the prevailing view was U.S. citizenship should carry with it protection from ever being treated as a ...


Civil War In The U.S. Foreign Relations Law: A Dress Rehearsal For Modern Transformations, The The Use And Misuse Of History In U.S. Foreign Relations Law, Thomas Lee Jan 2008

Civil War In The U.S. Foreign Relations Law: A Dress Rehearsal For Modern Transformations, The The Use And Misuse Of History In U.S. Foreign Relations Law, Thomas Lee

Faculty Scholarship

The first of the four U.S. foreign relations law insights of the Prize Cases that this Article will discuss is the notion that international law provides a basis for the President's exercise of military force in a manner neither specifically enumerated in the Constitution nor preauthorized by congressional enactments. The specific military action was the proclamation of a naval blockade that applied not only to active Confederate belligerents but also to loyal U.S. citizens residing in seceding or soon-to-secede states and to foreign neutral citizens. The second insight is the notion that federal constitutional law protections for ...


Why Supermajoritarianism Does Not Illuminate The Interpretive Debate Between Originalists And Non-Originalists, Ethan J. Leib Jan 2007

Why Supermajoritarianism Does Not Illuminate The Interpretive Debate Between Originalists And Non-Originalists, Ethan J. Leib

Faculty Scholarship

In A Pragmatic Defense of Originalism, they seek to explain why supermajoritarianism furnishes a new pragmatic defense of originalism. In this Essay, I dispute each of their substantive claims. First, I argue that there is nothing newly pragmatic about their defense. Although they claim to want to make originalists and pragmatists friends, nothing about their project is likely to accomplish this matchmaking. Second, I argue that there is no reason to believe that constitutional entrenchments produced under supermajoritarian decision rules are any more desirable as a general matter than rules produced under other, more relaxed, decision rules. At the core ...


Supreme Court Of The United States As Quasi-International Tribunal: Reclaiming The Court's Original And Exclusive Jurisdiction Over Treaty-Based Suits By Foreign States Against States, The , Thomas Lee Jan 2004

Supreme Court Of The United States As Quasi-International Tribunal: Reclaiming The Court's Original And Exclusive Jurisdiction Over Treaty-Based Suits By Foreign States Against States, The , Thomas Lee

Faculty Scholarship

The thesis of this Article is that the Constitution vests in the Supreme Court original and exclusive jurisdiction over suits brought by foreign states against States alleging violation of ratified treaties of the United States. The basis for non-immunity in suits by foreign states is the same theory of ratification consent that is presumed to justify suits against States by other States or the United States. Just as the States by ratifying the Constitution agreed to suits in the national court by other States and the national sovereign to ensure domestic peace, they agreed to suits by foreign states in ...


Redeeming The Welshed Guarantee: A Scheme For Achieving Justiciability, Ethan J. Leib Jan 2002

Redeeming The Welshed Guarantee: A Scheme For Achieving Justiciability, Ethan J. Leib

Faculty Scholarship

In this article, I suggest that Congress re-pass its progressive legislation under the jurisdictional basis of its Guarantee Clause power. While arguments for justiciability continue to be made, a pragmatic way to achieve it has not been spelled out. Part II will lay out versions of republicanism I hope to see discussed in the context of the Guarantee Clause. Part III will explore republicanism's excessive attention on the courts, recommending the aforementioned approach of Jeremy Waldron. Part IV will briefly suggest how some of the legislation recently curtailed by the Supreme Court might be justified under a theory of ...


Towards A Practice Of Deliberative Democracy: A Proposal For A Popular Branch , Ethan J. Leib Jan 2001

Towards A Practice Of Deliberative Democracy: A Proposal For A Popular Branch , Ethan J. Leib

Faculty Scholarship

Proposals for practical institutional reforms are notoriously absent from discussions about deliberative democracy. It is imperative to engage in the “nuts and bolts” debate of just what kinds of changes we discourse theorists or deliberative democrats want to effect. Here I would like to try to synthesize a reform proposal of my own based upon three major assumptions. Without argument, I assume a largely discourse-theoretic view of democracy that takes for granted the republican virtue of collective self-government as well as the Kantian claim that each citizen should be the author of his own laws. I further assume that our ...


Making Sense Of The Eleventh Amendment: International Law And State Sovereignty, Thomas Lee Jan 2001

Making Sense Of The Eleventh Amendment: International Law And State Sovereignty, Thomas Lee

Faculty Scholarship

The Judicial Power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. - Eleventh Amendment to the Constitution of the United States of America The thesis of this article is that the Eleventh Amendment, ratified in 1798, represented the incorporation into the American domestic constitutional law of federalism (specifically, the doctrine of state sovereign immunity) the late eighteenth-century international law rule that only states have rights against other states on ...


Defining And Punishing Abroad: Constitutional Limits On The Extraterritorial Reach Of The Offenses Clause Note, Zephyr R. Teachout Jan 1998

Defining And Punishing Abroad: Constitutional Limits On The Extraterritorial Reach Of The Offenses Clause Note, Zephyr R. Teachout

Faculty Scholarship

The Offenses Clause of the United States Constitution gives Congress the authority to "define and punish... Offences against the Law of Nations." This Note considers whether Congress must conform to the jurisdictional rules of customary international law when legislating pursuant to the Offenses Clause.


Tragic Irony Of American Federalism: National Sovereignty Versus State Sovereignty In Slavery And In Freedom, The Federalism In The 21st Century: Historical Perspectives, Robert J. Kaczorowski Jan 1996

Tragic Irony Of American Federalism: National Sovereignty Versus State Sovereignty In Slavery And In Freedom, The Federalism In The 21st Century: Historical Perspectives, Robert J. Kaczorowski

Faculty Scholarship

A plurality on the Supreme Court seeks to establish a state-sovereignty based theory of federalism that imposes sharp limitations on Congress's legislative powers. Using history as authority, they admonish a return to the constitutional "first principles" of the Founders. These "first principles," in their view, attribute all governmental authority to "the consent of the people of each individual state, not the consent of the undifferentiated people of the Nation as a whole." Because the people of each state are the source of all governmental power, they maintain, "where the Constitution is silent about the exercise of a particular power-that ...


Reflections On From Slaves To Citizens Bondage, Freedom And The Constitution: The New Slavery Scholarship And Its Impact On Law And Legal Historiography, Robert J. Kaczorowski Jan 1995

Reflections On From Slaves To Citizens Bondage, Freedom And The Constitution: The New Slavery Scholarship And Its Impact On Law And Legal Historiography, Robert J. Kaczorowski

Faculty Scholarship

The thesis of Professor Donald Nieman's paper, "From Slaves to Citizens: African-Americans, Rights Consciousness, and Reconstruction," is that the nation experienced a revolution in the United States Constitution and in the consciousness of African Americans. According to Professor Nieman, the Reconstruction Amendments represented "a dramatic departure from antebellum constitutional principles,"' because the Thirteenth Amendment reversed the pre-Civil War constitutional guarantee of slavery and "abolish[ed] slavery by federal authority." The Fourteenth Amendment rejected the Supreme Court's "racially-based definition of citizenship [in Dred Scott v. Sandford4], clearly establishing a color-blind citizenship” and the Fifteenth Amendment "wrote the principle of ...


Revolutionary Constitutionalism In The Era Of The Civil War And Reconstruction , Robert J. Kaczorowski Jan 1986

Revolutionary Constitutionalism In The Era Of The Civil War And Reconstruction , Robert J. Kaczorowski

Faculty Scholarship

The meaning and scope of the fourteenth amendment and the Civil Rights Act of 1866 remain among the most controversial issues in American constitutional law. Professor Kaczorowski contends that the issues have generated more controversy than they warrant, in part because scholars analyzing the legislative history of the amendment and statute have approached their task with preconceptions reflecting twentieth century legal concerns. He argues that the most important question for the framers was whether national or state governments possessed primary authority to determine and secure the status and rights of American citizens. Relying on records of the congressional debates as ...