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Series

Constitution

2009

Discipline
Institution
Publication

Articles 1 - 30 of 33

Full-Text Articles in Law

F09rs Sgb No. 16 (Budget), Compagno, Sellers Oct 2009

F09rs Sgb No. 16 (Budget), Compagno, Sellers

Student Senate Enrolled Legislation

No abstract provided.


F09rs Sgr No. 6 (Constitution Revision Committee), Palermo, Parker, Prestridge Oct 2009

F09rs Sgr No. 6 (Constitution Revision Committee), Palermo, Parker, Prestridge

Student Senate Enrolled Legislation

No abstract provided.


Ink Blot Or Not: The Meaning Of Privileges And/Or Immunities, Richard Aynes Jul 2009

Ink Blot Or Not: The Meaning Of Privileges And/Or Immunities, Richard Aynes

Akron Law 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 ...


The Constitutional Right To A Treaty Preemption Defense, David Sloss Jul 2009

The Constitutional Right To A Treaty Preemption Defense, David Sloss

Faculty Publications

The Constitution includes several provisions specifically designed to protect criminal defendants. For example, the Fourth Amendment prohibits "unreasonable searches and seizures," the Sixth Amendment guarantees that criminal defendants have a right to legal representation, and the Eighth Amendment prohibits cruel and unusual punishments. The Constitution' s Founders recognized that state power is at its apex when the state threatens individuals with criminal sanctions. Accordingly, they adopted special constitutional rules to protect "the individual defendant from the awesome power of the State."

The Due Process Clause provides critical protection for criminal defendants; it stipulates that no State shall "deprive any person ...


Executive Branch Contempt Of Congress, Josh Chafetz Jul 2009

Executive Branch Contempt Of Congress, Josh Chafetz

Cornell Law Faculty Publications

After former White House Counsel Harriet Miers and White House Chief of Staff Joshua Bolten refused to comply with subpoenas issued by a congressional committee investigating the firing of a number of United States Attorneys, the House of Representatives voted in 2008 to hold them in contempt. The House then chose a curious method of enforcing its contempt citation: it filed a federal lawsuit seeking a declaratory judgment that Miers and Bolten were in contempt of Congress and an injunction ordering them to comply with the subpoenas. The district court ruled for the House, although that ruling was subsequently stayed ...


Constitutional Flaw?, Carl E. Schneider Jul 2009

Constitutional Flaw?, Carl E. Schneider

Articles

Do terminally ill patients have a constitutional right "to decide, without FDA interference, whether to assume the risks of using potentially life-saving investigational drugs that the FDA has yet to approve for commercial marketing, but that the FDA has determined, after Phase I clinical human trials, are safe enough for further testing"? In Abigail Alliance for Better Access to Developmental Drugs v. McClellan, the United States District Court for the District of Columbia said "no." In Abigail Alliance for Better Access to Developmental Drugs v. von Eschenbach, a panel (three judges) of the United States Court of Appeals for the ...


The Constitutionality Of Mandates To Purchase Health Insurance, Mark A. Hall Apr 2009

The Constitutionality Of Mandates To Purchase Health Insurance, Mark A. Hall

O'Neill Institute Papers

Health insurance mandates have been a component of many recent health care reform proposals. Because a federal requirement that individuals transfer money to a private party is unprecedented, a number of legal issues must be examined.

This paper analyzes whether Congress can legislate a health insurance mandate and the potential legal challenges that might arise, given such a mandate. The analysis of legal challenges to health insurance mandates applies to federal individual mandates, but can also apply to a federal mandate requiring employers to purchase health insurance for their employees. There are no Constitutional barriers for Congress to legislate a ...


The Rule Against Scandal, Marci A. Hamilton Feb 2009

The Rule Against Scandal, Marci A. Hamilton

Schmooze 'tickets'

No abstract provided.


Is There A Paradox In Amending A Sacred Text?, Beau Breslin Feb 2009

Is There A Paradox In Amending A Sacred Text?, Beau Breslin

Schmooze 'tickets'

No abstract provided.


Like A Hole In The Head, Lief H. Carter Feb 2009

Like A Hole In The Head, Lief H. Carter

Schmooze 'tickets'

No abstract provided.


Toward A Judeo-Christian Constitutional Interpretation, Henry L. Chambers Feb 2009

Toward A Judeo-Christian Constitutional Interpretation, Henry L. Chambers

Schmooze 'tickets'

No abstract provided.


Religion And Constitutionalism: Indigenous Societies, David S. Bogen Feb 2009

Religion And Constitutionalism: Indigenous Societies, David S. Bogen

Schmooze 'tickets'

No abstract provided.


Biblical Interpretation, Constitutional Interpretation And Ignoring Text, Henry L. Chambers, Jr. Jan 2009

Biblical Interpretation, Constitutional Interpretation And Ignoring Text, Henry L. Chambers, Jr.

Law Faculty Publications

Much is made of how to interpret the Constitution. The Constitution is foundational and its law is the highest law in the land. Consequently, interpreting the Constitution correctly is important, not only so that the Constitution's words are honored but so that its ideals are honored. Similar desires accompany the interpretation of other important documents. Indeed, how a sacred text like the Bible is or can be interpreted may shed light upon how the Constitution could be or should be interpreted. This brief Essay considers how a particular vision of Christian biblical interpretation can inform constitutional interpretation. This Essay ...


What Oaths Meant To The Framers’ Generation: A Preliminary Sketch, Stephen M. Sheppard Jan 2009

What Oaths Meant To The Framers’ Generation: A Preliminary Sketch, Stephen M. Sheppard

Faculty Articles

Scholars raise the perennial questions of the role of the oaths, and the degree to which the oaths signal some religious commitment by the Framers, or whether one can see in them any expectation for a religious leadership of the nation. The general position of Geoffrey Stone is that the Constitution enshrines no significant religious expectations. The criticism of historian Seth Tillman is that reading the whole of the text, the oaths clause and other provisions signal at least some reference to God, and the response of Robert Blomquist is to suggest that while this perhaps is true, it must ...


That Vague But Powerful Abstraction: The Concept Of 'The People' In The Constitution, Elisa Arcioni Jan 2009

That Vague But Powerful Abstraction: The Concept Of 'The People' In The Constitution, Elisa Arcioni

Faculty of Law - Papers (Archive)

The concept of ‘the people’ in the Constitution is undoubtedly unfinished constitutional business. The concept is “vague” due to a lack of development by the High Court but also because it is an inherently fluid concept. Yet it is also “powerful” because of what ‘the people’ has come to signify, which is something that I suggest should be further developed by the High Court. There are two questions that I will consider in this paper. The first is: who are ‘the people’? The second is: what impact do they have on our understanding of the Constitution and constitutional terms?


39th Congress (1865-1867) And The 14th Amendment: Some Preliminary Perspectives, Richard Aynes Jan 2009

39th Congress (1865-1867) And The 14th Amendment: Some Preliminary Perspectives, Richard Aynes

Akron Law Publications

The 39th Congress (1865-1867) was one of the important Congresses in our history. It passed more legislation than any other Congress up to that time.

This preliminary examination of the 39th Congress begins with a look it composition. One of the critical factors was that while the 38th Congress contained a majority of unionists, the 39th Congress contained a super-majority which meant not only that they could override a Presidential veto, but also that they did not need to take the Democratic opposition seriously. This article also identifies the leadership of the 39th Congress. The 38th Congress was composed of ...


Empathy And Pragmatism In The Choice Of Constitutional Norms For Religious Land Use Disputes, Elizabeth Reilly Jan 2009

Empathy And Pragmatism In The Choice Of Constitutional Norms For Religious Land Use Disputes, Elizabeth Reilly

Akron Law Publications

From the perspective of both religious entities and local governments, religious land use requests are best resolved quickly, locally and cooperatively. The traditional framework for addressing religious land use disputes, which the Religious Land Use and Institutionalized Persons Act (RLUIPA)1 adopted, is ill-suited to those goals. Legally, disputes have long been framed as denials of the free exercise of religion – the broadest of all claims and the one requiring the most intrusive and subjective determinations about a particular religious group and its proposed use (what religion is, what a particular sect requires and how religion qua religion is affected ...


The Constitution And The American Federal System, Robert A. Sedler Jan 2009

The Constitution And The American Federal System, Robert A. Sedler

Law Faculty Research Publications

No abstract provided.


Step Out Of The Car: License, Registration, And Dna Please, Brian Gallini Jan 2009

Step Out Of The Car: License, Registration, And Dna Please, Brian Gallini

School of Law Faculty Publications and Presentations

No Arkansas appellate court has examined the constitutionality of the recently enacted House Bill 1473 – better known as “Juli’s Law” – which allows officers to take DNA samples from suspects arrested for capital murder, murder in the first degree, kidnapping, sexual assault in the first degree, and sexual assault in the second degree. This Essay contends that Juli’s Law violates the Fourth Amendment of the federal constitution. Part I highlights certain features of the statute and explores the rationale underlying its enactment. Part II discusses the only published decision upholding the practice of taking of DNA samples from certain ...


Interpreting Scripture/Interpreting Law, Frank S. Ravitch Jan 2009

Interpreting Scripture/Interpreting Law, Frank S. Ravitch

Faculty Publications

No abstract provided.


Between A Rock And A Hard Place: Landlords, Latinos, Anti-Illegal Immigrant Ordinances, And Housing Discrimination, Rigel C. Oliveri Jan 2009

Between A Rock And A Hard Place: Landlords, Latinos, Anti-Illegal Immigrant Ordinances, And Housing Discrimination, Rigel C. Oliveri

Faculty Publications

In the face of federal inability to effectively police our national borders and to remove unauthorized immigrants, many local governments have recently sought to take measures into their own hands by passing anti-illegal immigrant ("AII") ordinances. These ordinances usually contain a combination of provisions restricting housing, employment, and public benefits for unauthorized immigrants, among other things.This Article focuses on AII provisions that are targeted at private rental housing, which typically take the form of sanctions against landlords who rent to unauthorized immigrants.


Does Free Exercise Of Religion Deserve Constitutional Mention?, John M. Finnis Jan 2009

Does Free Exercise Of Religion Deserve Constitutional Mention?, John M. Finnis

Journal Articles

The article discusses the inclusion of the free exercise of religion among a society's constitutional guarantees in the U.S. It cites Christopher Eisgruber and Lawrence Sager, authors of the book "Religious Freedom and the Constitution," who hold that religion does not deserve constitutional mention on account of any special value. It disputes this view and states that religion does deserve constitutional mention and that the constitution should protect a citizen's right to practice his or her religion.


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

Scholarly Works

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 ...


The Misconceived Assumption About Constitutional Assumptions, Randy E. Barnett Jan 2009

The Misconceived Assumption About Constitutional Assumptions, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Both originalists and nonoriginalists alike often assume that background assumptions widely held when the Constitution or its amendments were enacted are part of the original meaning of the text. Originalists sometimes appeal to these background assumptions to render the meaning of more abstract words or phrases more determinate; nonoriginalist point to odious or outmoded assumptions as proof that original meaning is objectionable and should be rejected.

In this paper, the author examines the proper role of background assumptions in constitutional interpretation when ascertaining the meaning of the terms, and in constitutional construction when applying this meaning to particular cases and ...


Is The Constitution Libertarian?, Randy E. Barnett Jan 2009

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 ...


Separation Of Powers In Brazil, Keith S. Rosenn Jan 2009

Separation Of Powers In Brazil, Keith S. Rosenn

Articles

No abstract provided.


Constitutional Borrowing, Robert L. Tsai Jan 2009

Constitutional Borrowing, Robert L. Tsai

Articles in Law Reviews & Other Academic Journals

Borrowing from one domain to promote ideas in another domain is a staple of constitutional decisionmaking. Precedents, arguments, concepts, tropes, and heuristics all can be carried across doctrinal boundaries for purposes of persuasion. Yet the practice itself remains underanalyzed. This Article seeks to bring greater theoretical attention to the matter. It defines what constitutional borrowing is and what it is not, presents a typology that describes its common forms, undertakes a principled defense of borrowing, and identifies some of the risks involved. The authors' examples draw particular attention to places where legal mechanisms and ideas migrate between fields of law ...


Saving The Unitary Executive Theory From Those Who Would Distort And Abuse It: A Review Of The Unitary Executive, By Steven G. Calabresi And Christopher Yoo, Richard J. Pierce Jr Jan 2009

Saving The Unitary Executive Theory From Those Who Would Distort And Abuse It: A Review Of The Unitary Executive, By Steven G. Calabresi And Christopher Yoo, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

Calabresi and Yoo make three important contributions to the literature on separation of powers in their new book. First, they seek to rescue the unitary executive theory from the Bush Administration lawyers who have discredited the theory in the eyes of many by relying on it to support outlandish claims of presidential power that are unrelated to the unitary executive theory. Second, they make a persuasive case for the unitary executive theory by explaining why a president must have the power to remove executive branch officers and to control policy making in the executive branch. Third, they document the ways ...


Preemption And Theories Of Federalism, Robert R. M. Verchick, Nina A. Mendelson Jan 2009

Preemption And Theories Of Federalism, Robert R. M. Verchick, Nina A. Mendelson

Book Chapters

American government is an experiment in redundancy, with powers and duties shared among federal, state, and local decision makers. The arrange­ment is designed to divide power, maximize self-rule, and foster innovation, but it also can breed confusion. In the areas of public safety and environ­mental protection, state and federal leaders (to name the two most active players in these disputes) are often seen jockeying for the inside track, hoping to secure the resources or authority needed to promote their views of the public good or gain politically. To outside observers, the best outcomes are not obvious. For example ...


The Truth About Torts: Rethinking Regulatory Preemption And Its Impact On Public Health, William Buzbee, William Funk, Thomas Mcgarity, Nina A. Mendelson, Sidney Shapiro, David Vladeck, Matthew Shudtz Jan 2009

The Truth About Torts: Rethinking Regulatory Preemption And Its Impact On Public Health, William Buzbee, William Funk, Thomas Mcgarity, Nina A. Mendelson, Sidney Shapiro, David Vladeck, Matthew Shudtz

Other Publications

As consumers, we assume that the automobiles, pharmaceuticals, medical devices, and other products we purchase are generally safe for their intended uses. We rely on manufacturers to design and produce safe products, and we assume that federal regulators are conscientious watchdogs of the marketplace. In most instances, our assumptions are valid and we safely go about our lives. But the regulatory system is now frayed to the point that dangerous products sometimes slip through the cracks. Vioxx, Firestone/ATX tires, and toxics-laden children’s toys have endangered and harmed millions. In these cases, society depends on the state courts as ...