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Articles 1 - 22 of 22

Full-Text Articles in Law

Thick And Thin: Interdisciplinary Conversations On Populism, Law, Political Science, And Constitutional Change, Mark A. Graber Jan 2001

Thick And Thin: Interdisciplinary Conversations On Populism, Law, Political Science, And Constitutional Change, Mark A. Graber

Faculty Scholarship

No abstract provided.


Selected Conceptions Of Federalism: The Selective Use Of History In The Supreme Court's States' Rights Opinions, Lucian E. Dervan Jan 2001

Selected Conceptions Of Federalism: The Selective Use Of History In The Supreme Court's States' Rights Opinions, Lucian E. Dervan

Law Faculty Scholarship

In the period leading to the Civil War, debate over federalism and states’ rights developed into the seeds of a war that would forever change America. Over one hundred years later, the debate over federalism continues, unanswered by the blood of more than half a million soldiers. Over the last decade, the United States Supreme Court has increased state sovereignty and state immunity to levels unseen since the pre-Civil War period. The Court’s opinions are structured in a manner that relies significantly on historical methodologies. The multiple rationales used to structure the Justices’ arguments clash, and the Justices spar ...


What Is A Community? Group Rights And The Constitution: The Special Case Of African Americans, Taunya Lovell Banks Jan 2001

What Is A Community? Group Rights And The Constitution: The Special Case Of African Americans, Taunya Lovell Banks

Faculty Scholarship

No abstract provided.


A Symposium Précis, Thomas E. Baker Jan 2001

A Symposium Précis, Thomas E. Baker

Faculty Publications

This article is an introduction to and overview of the Drake University Law School symposium The Constitution and the Internet, held in February of 2001. It highlights important issues including the Constitution and the Internet, civil liberty and the application of a 200 year old document to the modern age of rapidly changing technology.


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 ...


Introduction: The Difficult First Amendment, Christina E. Wells Jan 2001

Introduction: The Difficult First Amendment, Christina E. Wells

Faculty Publications

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for redress of grievances.


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

Scholarly Works

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 ...


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 ...


Avoiding Constitutional Questions As A Three-Branch Problem, William K. Kelley Jan 2001

Avoiding Constitutional Questions As A Three-Branch Problem, William K. Kelley

Journal Articles

This article criticizes the cardinal rule of statutory construction known as the avoidance canon - that statutes must be interpreted to avoid raising serious constitutional questions - as failing to respect the proper constitutional roles of both Congress and the Executive. It argues that the avoidance canon in practice cannot be grounded in legislative supremacy, which is the common justification for it offered by the Supreme Court, because it assumes without foundation that Congress would always prefer not to come close to the constitutional line in enacting statutes. Instead, the avoidance canon creates pressure for courts to adopt statutory meanings that do ...


The Burden And Benefits Of The American Jury, José F. Anderson Jan 2001

The Burden And Benefits Of The American Jury, José F. Anderson

All Faculty Scholarship

There is no institution in the legal system more controversial than the American Jury. It has been praised and hated by people from all walks of life. James Madison once called it among "the most valuable" rights included in the Bill of Rights. Robert Allan Rutland, The Birth of the Bill of Rights 1776-1791, at 208 (2nd ed ., Northeastern Univ. Press 1991) (1955) (quoting 1 Annals of Cong. 755 (Joseph Gales ed., 1789)). The business community sometimes complains that it paralyzes its ability to grow. Politicians have used it as grist for their mills calling for jury reform. Television and ...


Introduction: Towards Understanding South African Constitutionalism, Penelope Andrews, Stephen Ellmann Jan 2001

Introduction: Towards Understanding South African Constitutionalism, Penelope Andrews, Stephen Ellmann

Articles & Chapters

No abstract provided.


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

Scholarly Works

No abstract provided.


Virtue And The Constitution Of The United States, John M. Finnis Jan 2001

Virtue And The Constitution Of The United States, John M. Finnis

Journal Articles

In this Article, Finnis reflects on the following five questions: (1) Does the Constitution require or presuppose, or thwart or even forbid, a formative project of government inculcating in citizens the civic virtue necessary to promote and sustain a good society?; (2) To what extent can the institutions of civil society support or even supplant government in inculcating civic virtue?; (3) What is the content of the civic virtue that should be inculcated in circumstances of moral disagreement, and how does it relate to traditional moral virtue?; (4) Does it include respect for and appreciation of diversity?; (5) Should a ...


Falling Out Of Love With America: The Clinton Impeachment And The Madisonian Constitution, Frank O. Bowman Iii Jan 2001

Falling Out Of Love With America: The Clinton Impeachment And The Madisonian Constitution, Frank O. Bowman Iii

Faculty Publications

First, were the Nixon and Clinton affairs truly as different as my memory makes them? Were the villains of Watergate as villainous and the heroes as heroic as I remember them? Were nearly all the players on both sides of l'affaire Lewinsky as shallow and fatuous as they seemed? Or to put the question in broader historical context, was the impeachment of Bill Clinton truly distinct, not only from Watergate, but from all of the other (fortunately few) occasions on which a president was seriously threatened with removal from office? Second, if the Clinton impeachment really was as bizarre ...


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

Scholarly Works

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

Scholarly Works

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

Scholarly Works

No abstract provided.


Are We Buyers Or Hosts? A Memetic Approach To The First Amendment, Jeffrey E. Stake Jan 2001

Are We Buyers Or Hosts? A Memetic Approach To The First Amendment, Jeffrey E. Stake

Articles by Maurer Faculty

The First Amendment is often analyzed using the metaphor of the marketplace of ideas. Making use of memetic analysis, this article suggests that ideas should not be treated as inert products that we choose but as living things that sometimes exert some influence over their environment. Some of the ideas are more adept at surviving than others, and the ones that survive will not necessarily be good for humans. To account for the ability of some memes to replicate dangerously, the First Amendment should be read to allow governments to punish a speaker who advocates or threatens physical injury (other ...


Crosby As Foreign Relations Law, Edward T. Swaine Jan 2001

Crosby As Foreign Relations Law, Edward T. Swaine

GW Law Faculty Publications & Other Works

This brief essay addresses the Supreme Court's end-of-term decision in Crosby v. National Foreign Trade Council, which preempted Massachusetts's law limiting public procurement from companies doing business in Burma. The essay addresses the perception that Crosby was limited in its implications for foreign relations law, and explores the Court's minimalist approach to inescapably constitutional questions - concluding, in the end, that the Court made foreign relations law without professing to do so, and without fully appreciating its consequences or capitalizing on its benefits.


Free-Standing Due Process And Criminal Procedure: The Supreme Court's Search For Interpretive Guidelines, Jerold H. Israel Jan 2001

Free-Standing Due Process And Criminal Procedure: The Supreme Court's Search For Interpretive Guidelines, Jerold H. Israel

Articles

When I was first introduced to the constitutional regulation of criminal procedure in the mid-1950s, a single issue dominated the field: To what extent did the due process clause of the Fourteenth Amendment impose upon states the same constitutional restraints that the Fourth, Fifth, Sixth and Eighth Amendments imposed upon the federal government? While those Bill of Rights provisions, as even then construed, imposed a broad range of constitutional restraints upon the federal criminal justice system, the federal system was (and still is) minuscule as compared to the combined systems of the fifty states. With the Bill of Rights provisions ...


United States Supreme Court: 2001 Term, Paul C. Giannelli Jan 2001

United States Supreme Court: 2001 Term, Paul C. Giannelli

Faculty Publications

No abstract provided.


'Bush' V. 'Gore': What Was The Supreme Court Thinking?, Richard D. Friedman Jan 2001

'Bush' V. 'Gore': What Was The Supreme Court Thinking?, Richard D. Friedman

Articles

One of the most astonishing episodes in American political history ended last month with perhaps the most imperial decision ever by the United States Supreme Court. In one stroke, the Court exercised power that belonged to Congress, the legislature of Florida, Florida's courts and administrators, and, most importantly, the people of the state.