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The Constitution As Poetry, Samuel J. Levine Jan 2019

The Constitution As Poetry, Samuel J. Levine

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Building upon a body of scholarship that compares constitutional interpretation to biblical and literary interpretation, and relying on an insight from a prominent nineteenth century rabbinic scholar, this Article briefly explores similarities in the interpretation of the Torah—the text of the Five Books of Moses—and the United States Constitution. Specifically, this Article draws upon Rabbi Naftali Zvi Yehudah Berlin’s (“Netziv”) intriguing suggestion that the interpretation of the text of the Torah parallels the interpretation of poetry. According to Netziv, this parallel accounts for the practice of interpreting the Torah expansively in ways that derive substantive legal rules ...


Telling Stories In The Supreme Court: Voices Briefs And The Role Of Democracy In Constitutional Deliberation, Linda H. Edwards Jan 2017

Telling Stories In The Supreme Court: Voices Briefs And The Role Of Democracy In Constitutional Deliberation, Linda H. Edwards

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On January 4, 2016, over 112 women lawyers, law professors, and former judges told the world that they had had an abortion. In a daring amicus brief that captured national media attention, the women “came out” to their clients; to the lawyers with or against whom they practice; to the judges before whom they appear; and to the Justices of the Supreme Court.

The past three years have seen an explosion of such “voices briefs,” 16 in Obergefell and 17 in Whole Woman’s Health. The briefs can be powerful, but their use is controversial. They tell the stories of ...


Political Dysfunction And The Election Of Donald Trump: Problems Of The U.S. Constitution's Presidency, David Orentlicher Jan 2016

Political Dysfunction And The Election Of Donald Trump: Problems Of The U.S. Constitution's Presidency, David Orentlicher

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In this article, Professor Orentlicher examines the Constitution's design for the executive branch. He argues that by opting for a single executive rather than a multi-person executive, the Constitution causes two serious problems-it fuels the high levels of partisan polarization that we see today, and it increases the likelihood of misguided presidential decision making. Drawing on the experience in other countries with executive power shared by multiple officials, he proposes a bipartisan executive.


Constitutional Value Judgments And Interpretive Theory Choice, Ian C. Bartrum Jan 2013

Constitutional Value Judgments And Interpretive Theory Choice, Ian C. Bartrum

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No abstract provided.


Due Process As Separation Of Powers, Nathan S. Chapman, Michael W. Mcconnell May 2012

Due Process As Separation Of Powers, Nathan S. Chapman, Michael W. Mcconnell

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From its conceptual origin in Magna Charta, due process of law has required that government can deprive persons of rights only pursuant to a coordinated effort of separate institutions that make, execute, and adjudicate claims under the law. Originalist debates about whether the Fifth or Fourteenth Amendments were understood to entail modern “substantive due process” have obscured the way that many American lawyers and courts understood due process to limit the legislature from the Revolutionary era through the Civil War. They understood due process to prohibit legislatures from directly depriving persons of rights, especially vested property rights, because it was ...


Avoiding Independent Agency Armageddon, Kent H. Barnett May 2012

Avoiding Independent Agency Armageddon, Kent H. Barnett

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In Free Enterprise Fund v. Public Company Accounting Oversight Board, the U.S. Supreme Court invalidated Congress’ use of two layers of tenure protection to shield Public Company Accounting Oversight Board (PCAOB) members from the President’s removal. The SEC could appoint and remove PCAOB members. An implied tenure-protection provision protected the SEC from the President’s at-will removal. And a statutory tenure-protection provision protected PCAOB members from the SEC’s at-will removal. The Court held that these “tiered” tenure protections unconstitutionally impinged upon the President’s removal power because they prevented the President from holding the SEC responsible for ...


The Originalist Case Against Congressional Supermajority Voting Rules, Dan T. Coenen Jan 2012

The Originalist Case Against Congressional Supermajority Voting Rules, Dan T. Coenen

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Controversy over the Senate’s filibuster practice dominates modern discussion of American legislative government. With increasing frequency, commentators have urged that the upper chamber’s requirement of sixty votes to close debate on pending matters violates a majority-rulebased norm of constitutional law. Proponents of this view, however, tend to gloss over a more basic question: Does the Constitution’s Rules of Proceedings Clause permit the houses of Congress to adopt internal parliamentary requirements under which a bill is deemed “passed” only if it receives supermajority support? This question is important. Indeed, the House already has such a rule in place ...


Awakening The Press Clause, Sonja R. West Apr 2011

Awakening The Press Clause, Sonja R. West

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The Free Press Clause enjoys less practical significance than almost any other constitutional provision. While recognizing the structural and expressive importance of a free press, the Supreme Court has never recognized explicitly any right or protection as emanating solely from the Press Clause. Recently in the Court’s Citizens United decision, Justices Stevens and Scalia reignited the 30-year-old debate over whether the Press Clause has any function separate from the Speech Clause.

The primary roadblock to recognizing independent meaning in the Press Clause is the definitional problem - who or what is the “press”? Others have attempted to define the press ...


The Supreme Court And Judicial Review: Two Views, Thomas A. Schweitzer Jan 2011

The Supreme Court And Judicial Review: Two Views, Thomas A. Schweitzer

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No abstract provided.


Sacrifice And Sacred Honor: Why The Constitution Is A "Suicide Pact", Peter Brandon Bayer Jan 2011

Sacrifice And Sacred Honor: Why The Constitution Is A "Suicide Pact", Peter Brandon Bayer

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Most legal scholars and elected officials embrace the popular clich6 that "the Constitution is not a suicide pact." Typically, those commentators extol the "Constitution of necessity," the supposition that Government, essentially the Executive, may take any action-may abridge or deny any fundamental right-to alleviate a sufficiently serious national security threat. The "Constitution of necessity" is wrong. This Article explains that strict devotion to the "fundamental fairness" principles of the Constitution's Due Process Clauses is America's utmost legal and moral duty, surpassing all other considerations, even safety, security and survival.

The analysis begins with the most basic premises: the ...


Of Inkblots And Omnisignificance: Conceptualizing Secondary And Symbolic Functions Of The Ninth Amendment, In A Comparative Hermeneutic Framework, Samuel J. Levine Jan 2009

Of Inkblots And Omnisignificance: Conceptualizing Secondary And Symbolic Functions Of The Ninth Amendment, In A Comparative Hermeneutic Framework, Samuel J. Levine

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In this Essay, Levine focuses on a particular hermeneutic approach common to the interpretation of the Torah and the United States Constitution: a presumption against superfluity. This presumption accords to the text a considerable degree of omnisignificance, requiring that interpreters pay careful attention to every textual phrase and nuance in an effort to find its legal meaning and implications. In light of this presumption, it might be expected that normative interpretation of both the Torah and the Constitution would preclude a methodology that allows sections of the text to remain bereft of concrete legal application. In fact, however, both the ...


Overcoming Lochner In The Twenty-First Century: Taking Both Rights And Popular Sovereignty Seriously As We Seek To Secure Equal Citizenship And Promote The Public Good, Thomas B. Mcaffee Jan 2008

Overcoming Lochner In The Twenty-First Century: Taking Both Rights And Popular Sovereignty Seriously As We Seek To Secure Equal Citizenship And Promote The Public Good, Thomas B. Mcaffee

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Professor McAffee reviews substantive due process as the textual basis for modern fundamental rights constitutional decision-making. He contends that we should avoid both the undue literalism that rejects the idea of implied rights, as well as the attempt to substitute someone’s preferred moral vision for the limits, and compromises, that are implicit in—and intended by—the Constitution’s text. He argues, moreover, that we can largely harmonize the various goals of our constitutional system by taking rights seriously and understanding that securing rights does not exhaust the Constitution’s purpose.


Bruce Ledewitz, American Religious Democracy: Coming To Terms With The End Of Secular Politics, Thomas A. Schweitzer Jan 2007

Bruce Ledewitz, American Religious Democracy: Coming To Terms With The End Of Secular Politics, Thomas A. Schweitzer

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No abstract provided.


Restoring The Lost World Of Classical Legal Thought: The Presumption In Favor Of Liberty Over Law And The Court Over The Constitution, Thomas B. Mcaffee Jan 2007

Restoring The Lost World Of Classical Legal Thought: The Presumption In Favor Of Liberty Over Law And The Court Over The Constitution, Thomas B. Mcaffee

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In 1998, legal historian William M. Wiecek published a book outlining the basic legal ideology that brought us the “Lochner era” in Supreme Court decision-making. It was fittingly entitled, The Lost World of Classical Legal Thought in America: Law and Ideology, 1886-1937. Wiecek demonstrated that the “classical” legal thought that generated the “libertarian” decision-making of the Lochner era, which occurred during the first third or so of the twentieth century, was the attempt to bring Lockean political principles directly to bear on the task of interpreting the 1787 Constitution in the post-Reconstruction era. In 2004, Professor Randy E. Barnett contends ...


A Symposium On The People Themselves: Popular Constitutionalism And Judicial Review; Introduction, Daniel W. Hamilton Jan 2006

A Symposium On The People Themselves: Popular Constitutionalism And Judicial Review; Introduction, Daniel W. Hamilton

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No abstract provided.


Women And Law: A Comparative Analysis Of The United States And Indian Supreme Courts’ Equality Jurisprudence, Eileen Kaufman Jan 2006

Women And Law: A Comparative Analysis Of The United States And Indian Supreme Courts’ Equality Jurisprudence, Eileen Kaufman

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No abstract provided.


Popular Constitutionalism In The Civil War: A Trial Run, Daniel W. Hamilton Jan 2006

Popular Constitutionalism In The Civil War: A Trial Run, Daniel W. Hamilton

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No abstract provided.


Michigan Supreme Court Overturns Landmark Eminent Domain Case, Patricia E. Salkin Apr 2005

Michigan Supreme Court Overturns Landmark Eminent Domain Case, Patricia E. Salkin

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No abstract provided.


Lawrence V. Texas: The Decision And Its Implications For The Future, Martin A. Schwartz Jan 2004

Lawrence V. Texas: The Decision And Its Implications For The Future, Martin A. Schwartz

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No abstract provided.


Courts Over Constitutions Revisited: Unwritten Constitutionalism In The States, Thomas B. Mcaffee, Nathan N. Frost, Rachel Beth Klein-Levine Jan 2004

Courts Over Constitutions Revisited: Unwritten Constitutionalism In The States, Thomas B. Mcaffee, Nathan N. Frost, Rachel Beth Klein-Levine

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A good deal of modern debate in constitutional law has concerned the appropriate methods for construing constitutional rights. But the focus on “individual rights” has sometimes prompted us to pay too little attention to the “right” deemed most fundamental by those who brought us the state and federal constitutions: the right of the people collectively to make determinations about how they should be governed. The author demonstrates that the key to understanding the development of the power of judicial review, both by the United States Supreme Court and by the highest courts of the states, is to perceive courts as ...


Supreme Court Section 1983 Decisions: (October 2001 Term), Martin A. Schwartz Jan 2003

Supreme Court Section 1983 Decisions: (October 2001 Term), Martin A. Schwartz

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No abstract provided.


Is Including "Under God" In The Pledge Of Allegiance Lawful?: An Impeccably Correct Ruling, Peter Brandon Bayer Jan 2003

Is Including "Under God" In The Pledge Of Allegiance Lawful?: An Impeccably Correct Ruling, Peter Brandon Bayer

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On June 26, 2002, in Newdow v. U.S. Congress, a divided panel of the United States Court of Appeals for the Ninth Circuit held that the 1954 Congressional amendment adding the words “under God” to the Pledge of Allegiance violated the First Amendment’s proscription that, “Congress shall make not law respecting an establishment of religion.” Because the First Amendment’s Establishment Clause applies to the States via the due process clause of the Fourteenth Amendment, the Ninth Circuit likewise found unlawful a California school district’s policy encouraging public school students to utter the words “under God” as ...


Congressional Power Over Presidential Elections: Lessons From The Past And Reforms For The Future, Dan T. Coenen, Edward J. Larson Mar 2002

Congressional Power Over Presidential Elections: Lessons From The Past And Reforms For The Future, Dan T. Coenen, Edward J. Larson

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Presidential election controversies are nothing new. They have plagued our republic since 1801, when the fourth election for the office ended in a muddle that nearly deprived the rightful winner of the presidency. Each controversy has led to calls for reform. In every instance, the cryptic and troublesome constitutional text has hampered congressional efforts to correct the problems. Simply stated, the Constitution offers little explicit guidance on when and how Congress can regulate the selection of the President. In this Article, we explore the implications of this textual deficiency, looking both at what Congress has done in the past and ...


Of Orphans And Vouchers: Nevada's "Little Blaine Amendment" And The Future Of Religious Participation In Public Programs, Jay S. Bybee Jan 2002

Of Orphans And Vouchers: Nevada's "Little Blaine Amendment" And The Future Of Religious Participation In Public Programs, Jay S. Bybee

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In December 1875, President Ulysses S. Grant delivered his last annual message to Congress. He warned of “the dangers threatening us” and the “importance that all [men] should be possessed of education and intelligence,” lest “ignorant men . . . sink into acquiescence to the will of intelligence, whether directed by the demagogue or by priestcraft.” He recommended as “the primary step” a constitutional amendment “making it the duty of each of the several States to establish and forever maintain free public schools adequate to the education of all of the children” and “prohibiting the granting of any school funds, or school taxes ...


Paradise Lost: Good News Club, Charitable Choice, And The State Of Religious Freedom, Ian C. Bartrum Jan 2002

Paradise Lost: Good News Club, Charitable Choice, And The State Of Religious Freedom, Ian C. Bartrum

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The United States Constitution's two religion clauses prohibit Congress from passing laws that establish religion or restrict its free exercise. This Note argues that James Madison and Thomas Jefferson worked to include this language in the Constitution because of their belief that citizens' religious duties were more fundamental than their civic duties. It argues that they intended the Constitution's religion clauses to form a simple dialectic: the government may not force citizens to renounce their religious duties by compelling them to support another faith, nor may it pass laws that act coercively to restrict their religious beliefs and ...


Does The Federal Constitution Incorporate The Declaration Of Independence?, Thomas B. Mcaffee Jan 2001

Does The Federal Constitution Incorporate The Declaration Of Independence?, Thomas B. Mcaffee

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A standard view at the time of the adoption of the Constitution was that “a constitution does not in itself imply any more than a declaration of the relation which the different parts of the government have to each other, but does not imply security for the rights of individuals.” The drafters of the state constitutions had “assumed that government had all power except for specific prohibitions contained in a bill of rights.” When the federal Constitution was transmitted to the states by Congress, Nathaniel Gorham of Massachusetts defended the omission of a bill of rights based on the federal ...


The Privatization Of The Civil Commitment Process And The State Action Doctrine: Have The Mentally Ill Been Systematically Stripped Of Their Fourteenth Amendment Rights?, William Brooks Jan 2001

The Privatization Of The Civil Commitment Process And The State Action Doctrine: Have The Mentally Ill Been Systematically Stripped Of Their Fourteenth Amendment Rights?, William Brooks

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No abstract provided.


The Constitution As Based On The Consent Of The Governed—Or, Should We Have An Unwritten Constitution?, Thomas B. Mcaffee Jan 2001

The Constitution As Based On The Consent Of The Governed—Or, Should We Have An Unwritten Constitution?, Thomas B. Mcaffee

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It is useful to embrace continuity in describing basic differences we have in giving effect to the Constitution, especially if particular ways of communicating help us convey and understand what is at stake. The individual who originated the term “non-interpretivist” to describe judicial review implementing the unwritten constitution, for example, continues to believe that the best approach to constitutional interpretation is not “textualist,” but is properly characterized as “supplemental.” In his view, “much American constitutional adjudication, including but not limited to decisions under due process liberty and the right of privacy, involves the interpretation of an unwritten and essentially common ...


Unenumerated Rights Under The U.S. Constitution, Thomas B. Mcaffee Jan 2001

Unenumerated Rights Under The U.S. Constitution, Thomas B. Mcaffee

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The symbol of modern constitutional law, for good or ill, is Roe v. Wade, the Supreme Court’s abortion decision. From the beginning, the big question has been, where in the text of the Constitution do were find this “right of privacy” that secures the right to choose abortion? Some scholars have argued that such a right could not be found in the text or structure of the Constitution. One powerful counter stems from a textual approach to giving effect to the Constitution. In this article, the author argues that, if we look carefully enough at the text and history ...


Exploiting Trauma: The So-Called Victim's Rights Amendment, Lynne Henderson Jan 2001

Exploiting Trauma: The So-Called Victim's Rights Amendment, Lynne Henderson

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No abstract provided.