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Series

Constitution

2012

Discipline
Institution
Publication
File Type

Articles 1 - 30 of 45

Full-Text Articles in Law

How Bad Were The Official Records Of The Federal Convention?, Mary Sarah Bilder Oct 2012

How Bad Were The Official Records Of The Federal Convention?, Mary Sarah Bilder

Boston College Law School Faculty Papers

The official records of the Constitutional Convention of 1787 have been neglected and dismissed by scholars for the last century, largely to due to Max Farrand’s criticisms of both the records and the man responsible for keeping them - Secretary of the Convention William Jackson. This Article disagrees with Farrand’s conclusion that the Convention records were bad, and aims to resurrect the records and Jackson’s reputation. The Article suggests that the endurance of Farrand’s critique arises in part from misinterpretations of certain procedural components of the Convention and failure to appreciate the significance of others, understandable considering ...


States' Rights Apogee, 1760-1840, Ryan Setliff Oct 2012

States' Rights Apogee, 1760-1840, Ryan Setliff

Masters Theses

America's states' rights tradition has held much influence since the ratification of the U.S. Constitution in 1788. In late 1798, in response to the Federalist administration's adoption of the Alien and Sedition Acts, the Virginia and Kentucky Resolutions were formally adopted by the legislatures of Virginia and Kentucky respectively. These resolutions set a lasting precedent for state interposition and nullification. As well concurrence with these doctrines can be found in the Virginia Resolves of 1790, the constitutional debates of 1787-1790, and all throughout the colonial-revolutionary period of the 1760s to 1780s. In time, the Virginia and Kentucky ...


Scalia’S Ship Of Revulsion Has Sailed: Will Lawrence Protect Adults Who Adopt Lovers To Help Ensure Their Inheritance From Incest Prosecution?, Terry L. Turnipseed Jul 2012

Scalia’S Ship Of Revulsion Has Sailed: Will Lawrence Protect Adults Who Adopt Lovers To Help Ensure Their Inheritance From Incest Prosecution?, Terry L. Turnipseed

College of Law Faculty - Scholarship

SCALIA’S SHIP OF REVULSION HAS SAILED: WILL LAWRENCE PROTECT ADULTS WHO ADOPT LOVERS TO HELP ENSURE THEIR INHERITANCE FROM INCEST PROSECUTION? Terry L. Turnipseed Associate Professor of Law Syracuse University College of Law in•cest (ĭn'sěst') Sexual relations between family members or close relatives, including children related by adoption. There is a growing trend in this country – startling to many – of adopting one’s adult lover or spouse for various reasons, mostly inheritance-based. Should one who adopts his or her adult lover or spouse be prosecuted for incest? Think about it: the person is having sexual relations with ...


Punishment Without Culpability, John F. Stinneford Jul 2012

Punishment Without Culpability, John F. Stinneford

UF Law Faculty Publications

For more than half a century, academic commentators have criticized the Supreme Court for failing to articulate a substantive constitutional conception of criminal law. Although the Court enforces various procedural protections that the Constitution provides for criminal defendants, it has left the question of what a crime is purely to the discretion of the legislature. This failure has permitted legislatures to evade the Constitution’s procedural protections by reclassifying crimes as civil causes of action, eliminating key elements (such as mens rea) or reclassifying them as defenses or sentencing factors, and authorizing severe punishments for crimes traditionally considered relatively minor ...


Ensuring The Stability Of Presidential Succession In The Modern Era: Report Of The Fordham University School Of Law Clinic On Presidential Succession, Fordham Law School Clinic On Presidential Succession Jun 2012

Ensuring The Stability Of Presidential Succession In The Modern Era: Report Of The Fordham University School Of Law Clinic On Presidential Succession, Fordham Law School Clinic On Presidential Succession

Reports

This Report outlines the recommendations of Fordham Law's first Presidential Succession Clinic, whose nine students conducted their work during the 2010-2011 academic year under the guidance of Dean John D. Feerick and Adjunct Professors Dora Galacatos and Nicole A. Gordon. Their recommendations for resolving the gaps and weaknesses in the presidential succession system include: (1) statutes and executive branch actions to account for the absence of procedures for declaring the Vice President unable; (2) removing legislators from the line of succession and resolving ambiguities regarding the line of the succession; and (3) reforms for addressing the death or resignation ...


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

Scholarly Works

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

Scholarly Works

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 Long And Winding Road From Monroe To Connick, Sheldon Nahmod Apr 2012

The Long And Winding Road From Monroe To Connick, Sheldon Nahmod

All Faculty Scholarship

In this article, I address the historical and doctrinal development of § 1983 local government liability, beginning with Monroe v. Pape in 1961 and culminating in the Supreme Court’s controversial 2011 failure to train decision in Connick v. Thompson. Connick has made it exceptionally difficult for § 1983 plaintiffs to prevail against local governments in failure to train cases. In the course of my analysis, I also consider the oral argument and opinions in Connick as well as various aspects of § 1983 doctrine. I ultimately situate Connick in the Court’s federalism jurisprudence which doubles back to Justice Frankfurter’s view ...


Making A Mountain Out Of A Molehill? Marbury And The Construction Of The Constitutional Canon, Amanda Rinderle, Keith E. Whittington Feb 2012

Making A Mountain Out Of A Molehill? Marbury And The Construction Of The Constitutional Canon, Amanda Rinderle, Keith E. Whittington

Schmooze 'tickets'

No abstract provided.


Liberalism And The Constitutional Canon: The 1960s And Its Aftermath, Christopher P. Matera Feb 2012

Liberalism And The Constitutional Canon: The 1960s And Its Aftermath, Christopher P. Matera

Schmooze 'tickets'

No abstract provided.


Canonizing Comparative Constitutionalism: Some Informal Suggestions For Our Schmooze, Sanford Levinson Feb 2012

Canonizing Comparative Constitutionalism: Some Informal Suggestions For Our Schmooze, Sanford Levinson

Schmooze 'tickets'

No abstract provided.


Lessons From The Anticanon (And Some Comparative Questions), Jamal Greene Feb 2012

Lessons From The Anticanon (And Some Comparative Questions), Jamal Greene

Schmooze 'tickets'

No abstract provided.


The Problem With Constitutional Borrowing: Imitation Is Not Necessarily The Sincerest Form Of Flattery, Gordon Silverstein Feb 2012

The Problem With Constitutional Borrowing: Imitation Is Not Necessarily The Sincerest Form Of Flattery, Gordon Silverstein

Schmooze 'tickets'

No abstract provided.


Grootboom At Home And Abroad: Adventures In The Construction Of A Global Constitutional Canon, Heinz Klug Feb 2012

Grootboom At Home And Abroad: Adventures In The Construction Of A Global Constitutional Canon, Heinz Klug

Schmooze 'tickets'

No abstract provided.


The Global Constitutional Canon: Some Preliminary Thoughts, Peter E. Quint Feb 2012

The Global Constitutional Canon: Some Preliminary Thoughts, Peter E. Quint

Schmooze 'tickets'

No abstract provided.


The Enforcement Of Socioeconomic Rights And The Global Constitutional Canon, Emily Zackin Feb 2012

The Enforcement Of Socioeconomic Rights And The Global Constitutional Canon, Emily Zackin

Schmooze 'tickets'

No abstract provided.


Veils, Politics, And Constitutionalism, Jill Goldenziel Feb 2012

Veils, Politics, And Constitutionalism, Jill Goldenziel

Schmooze 'tickets'

No abstract provided.


Constructing The Other: U.S. Muslims, Anti-Sharia Law, And The Constitutional Consequences Of Volatile Intercultural Rhetoric, Carlo A. Pedrioli Jan 2012

Constructing The Other: U.S. Muslims, Anti-Sharia Law, And The Constitutional Consequences Of Volatile Intercultural Rhetoric, Carlo A. Pedrioli

Faculty Scholarship

Recently, legislators have proposed, discussed, and passed various laws that aimed to limit the use of foreign law, international law, and Sharia (a branch of Islamic law) in state court systems. Because it became law, one proposed state constitutional amendment that rhetorically linked Sharia to foreign and international law is of particular note. In the 2010 midterm elections, Oklahoma passed State Question 755 (SQ 755), a constitutional amendment that aimed to place restrictions on the use of foreign law, international law, and Sharia in Oklahoma courts. Laws like Oklahoma’s State Question 755 are problematic for a variety of reasons ...


Categories, Tiers Of Review, And The Roiling Sea Of Free Speech Doctrine And Principle: A Methodological Critique Of United States V. Alvarez, Rodney A. Smolla Jan 2012

Categories, Tiers Of Review, And The Roiling Sea Of Free Speech Doctrine And Principle: A Methodological Critique Of United States V. Alvarez, Rodney A. Smolla

Faculty Scholarship

None available.


Evaluating Tribal Courts' Interpretations Of The Indian Civil Rights Act, Mark D. Rosen Jan 2012

Evaluating Tribal Courts' Interpretations Of The Indian Civil Rights Act, Mark D. Rosen

All Faculty Scholarship

No abstract provided.


The End Of "One Hand": The Egyptian Constitutional Declaration And The Rift Between The "People" And The Supreme Council Of The Armed Forces, Kristen A. Stilt Jan 2012

The End Of "One Hand": The Egyptian Constitutional Declaration And The Rift Between The "People" And The Supreme Council Of The Armed Forces, Kristen A. Stilt

Faculty Working Papers

By some point in the fall of 2011, Egyptians in large numbers no longer viewed the Supreme Council of the Armed Forces (SCAF) as the guardian of the revolution and even considered it the revolution's antagonist. "The army and the people are one" was a common slogan in the early days following Mubarak's ouster on February 11, 2011, but the situation had changed dramatically by the landmark date of October 9, when the military used violence against its own citizens, killing approximately twenty-five Christians at a protest outside Maspero, the headquarters of the Egyptian state television. Violence against ...


Federalism, Individual Rights And Judicial Engagement, Kurt T. Lash Jan 2012

Federalism, Individual Rights And Judicial Engagement, Kurt T. Lash

Law Faculty Publications

Contemporary “rights talk” under the American Constitution tends to focus on individual rights or those rights that can be perfected in the case of a single individual. This would include, for example, the rights to free expression, free exercise of religion, sexual autonomy, or the right to equal treatment. Under the broad umbrella of individual-rights talk, theoretical discussions generally involve whether courts ought to recognize a particular individual right or what level of scrutiny (or engagement) ought to apply to judicially identified individual rights.

From the beginning of our history as a nation, however, the concept of legally cognizable rights ...


American School Finance Litigation And The Right To Education In South Africa, Scott R. Bauries Jan 2012

American School Finance Litigation And The Right To Education In South Africa, Scott R. Bauries

Law Faculty Scholarly Articles

This paper addresses the South African Constitution's invitation to the Constitutional Court to 'consider foreign law' when interpreting its provisions. Focusing on the education provisions found in section 29 of the Constitution, I make two claims. Firstly, contrary to the developing consensus, American state supreme court jurisprudence in school funding cases makes a poor resource to aid the interpretation of the basic South African right to education, regardless of the quantum of education that the Constitutional Court decides is encompassed by the word 'basic'. Secondly, however, certain aspects of these same American decisions, particularly the space they provide for ...


The Education Duty, Scott R. Bauries Jan 2012

The Education Duty, Scott R. Bauries

Law Faculty Scholarly Articles

A constitution is an instrument of entrustment. By adopting a democratic constitution, a polity places in the hands of its elected representatives its trust that those representatives will act to pursue the ends of the polity, rather than their own ends, and that they will do so with an eye toward the effects of adopted policies. In effect, the polity entrusts lawmaking power to its legislature with the expectation that such power will be exercised with loyalty to the public and with due care for its interests. Simply put, legislatures are fiduciaries.

In this Article, I examine the nature of ...


Subtraction By Addition?: The Thirteenth And Fourteenth Amendments, Mark A. Graber Jan 2012

Subtraction By Addition?: The Thirteenth And Fourteenth Amendments, Mark A. Graber

Faculty Scholarship

The celebration of the Thirteenth Amendment in many Essays prepared for this Symposium may be premature. That the Thirteenth Amendment arguably protects a different and, perhaps, wider array of rights than the Fourteenth Amendment may be less important than the less controversial claim that the Fourteenth Amendment was ratified after the Thirteenth Amendment. If the Fourteenth Amendment covers similar ground as the Thirteenth Amendment, but protects a narrower set of rights than the Thirteenth Amendment, then the proper inference may be that the Fourteenth Amendment repealed or modified crucial rights originally protected by the Thirteenth Amendment. The broad interpretation of ...


United States V. Klein, Then And Now, Gordon G. Young Jan 2012

United States V. Klein, Then And Now, Gordon G. Young

Faculty Scholarship

United States v. Klein, decided during Reconstruction, was the first Supreme Court case to invalidate a statutory restriction on federal courts’ jurisdiction. It is the only one to do so by finding a violation of Article III of the Constitution. Klein has been cited in thirty-three United States Supreme Court opinions, and roughly five hundred times each by lower federal courts and law journal articles. Recent commentators have read Klein both too broadly and narrowly. Its central holding is that Congress may not grant federal courts jurisdiction to decide a set of cases on the merits while depriving them of ...


The Future Interpretation Of The Constitution As A Result Of The Reelection Of President Barack Obama, Wilson Huhn Jan 2012

The Future Interpretation Of The Constitution As A Result Of The Reelection Of President Barack Obama, Wilson Huhn

Akron Law Publications

On November 6, 2012, Barack Obama was reelected President of the United States. What effect will this have on the future interpretation of the Constitution? This article identifies 19 areas of constitutional law that would likely change if one more liberal justice is appointed to the Supreme Court.


The Civil Rights Movement And The Constitution, Wilson Huhn Jan 2012

The Civil Rights Movement And The Constitution, Wilson Huhn

Akron Law Publications

This presentation of March 3, 2012, describes the influence that the Civil Rights Movement has had on the interpretation of the Constitution. The Civil Rights Movement not only broadened our understanding of the principle of equality under Equal Protection, it also expanded opportunities for Freedom of Expression and the Right to Privacy. In addition, the Civil Rights Movement stimulated the courts to recognize the power of Congress to enact legislation under the Commerce Clause and Section 5 of the 14th Amendment. Finally, as a result of the Civil Rights Movement, the Supreme Court has moved to a more realistic, consequentialist ...


Your View: Top Funding Needed For Legal Assistance Corporation, Justine A. Dunlap Jan 2012

Your View: Top Funding Needed For Legal Assistance Corporation, Justine A. Dunlap

Faculty Publications

Lawyers - we love to hate them until we need one. The good news that, in certain critical situations, lawyers are available. They are a constitutional entitlement for the criminally accused. They can be retained on a contingency fee basis in certain kinds of cases. Legal services may be available through a work-based pre-paid plan. And, if you have lots of money, legal services are, of course, readily procurable. That's the stuff of legal "dream teams".


The Fourth Amendment, Ethan Payne Jan 2012

The Fourth Amendment, Ethan Payne

A with Honors Projects

This projects explains the fourth amendment using skits and a PowerPoint presentation.