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2006

Constitutional law

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Articles 1 - 30 of 121

Full-Text Articles in Law

Dred Scott And The Crisis Of 1860, Louise Weinberg Dec 2006

Dred Scott And The Crisis Of 1860, Louise Weinberg

Chicago-Kent Law Review

Recent suggestions to the contrary notwithstanding, the Dred Scott decision and the controversy over the extension of slavery into the territories were at the very center of the crisis of 1860. This paper fills in the social, political, economic, and legal backgrounds of that crisis in order to clarify the centrality of Dred Scott in the election of Abraham Lincoln and to the ensuing destruction of the Union.


Dred Scott: Tiered Citizenship And Tiered Personhood, Henry L. Chambers Jr. Dec 2006

Dred Scott: Tiered Citizenship And Tiered Personhood, Henry L. Chambers Jr.

Chicago-Kent Law Review

The Dred Scott Court accepted and perpetuated the notion that our Constitution afforded multiple tiers of citizenship and multiple tiers of personhood through which different groups of citizens and different groups of persons would receive varying sets of rights. Through their language and interpretation, the Reconstruction Amendments largely resolved this issue by providing a formal equality that created a single tier of citizenship and a single tier of personhood. Though, as a formal matter, tiered citizenship and tiered personhood are unacceptable, the issue is not fully resolved as a practical matter. Tiered citizenship and tiered personhood may exist when the ...


Rethinking Dred Scott: New Context For An Old Case, Austin Allen Dec 2006

Rethinking Dred Scott: New Context For An Old Case, Austin Allen

Chicago-Kent Law Review

Scholars have misunderstood the context in which Dred Scott emerged. Leading historical interpretations of the decision have relied too heavily on accounts developed by antebellum Republicans and on mid-twentieth-century legal theory. This article offers an alternative account of Dred Scott's origins and argues that the decision emerged from a series of unintended consequences resulting from the Taney Court's efforts to incorporate a Jacksonian vision of governance into constitutional law. By 1857, this effort had generated tensions that made a sweeping decision like Dred Scott nearly unavoidable. The inescapable nature of Dred Scott carries implications for constitutional theorists, especially ...


The New Fiction: Dred Scott And The Language Of Judicial Authority, Mark A. Graber Dec 2006

The New Fiction: Dred Scott And The Language Of Judicial Authority, Mark A. Graber

Chicago-Kent Law Review

Claims that the Justices in Dred Scott abandoned a tradition of judicial restraint rely on an anachronistic measure for judicial activism. Antebellum Justices asserted that laws were unconstitutional only when restraining state officials. Judicial etiquette, in their opinion, required more circumspection when imposing constitutional limits on a coordinate branch of the national government. Contrary to accepted wisdom, the Justices before the Civil War imposed constitutional limitations on federal power in approximately twenty cases. They did so, however, without explicitly declaring federal legislation unconstitutional. The Justices in some federal cases ignored the plain meaning of federal statutes on the ground that ...


Thirteen Ways Of Looking At Dred Scott, Jack M. Balkin, Sanford Levinson Dec 2006

Thirteen Ways Of Looking At Dred Scott, Jack M. Balkin, Sanford Levinson

Chicago-Kent Law Review

Dred Scott v. Sandford is a classic case that is relevant to almost every important question of contemporary constitutional theory.

Dred Scott connected race to social status, to citizenship, and to being a part of the American people. One hundred fifty years later these connections still haunt us; and the twin questions of who is truly American and who America belongs to still roil our national debates.

Dred Scott is a case about threats to national security and whether the Constitution is a suicide pact. It concerns whether the Constitution follows the flag and whether constitutional rights obtain in federally ...


Emergence Of Equality As A Constitutional Value: The First Century, William M. Wiecek Dec 2006

Emergence Of Equality As A Constitutional Value: The First Century, William M. Wiecek

Chicago-Kent Law Review

Equality as a constitutional value was unprecedented when it made its appearance in 1868 in the Equal Protection Clause of the Fourteenth Amendment. It reflected antebellum abolitionist ideals adopted hesitantly by Northern Republicans during Reconstruction, but these were incompatible with the expectations of most white Americans of the era, as well as with all previous American experiences. In this sense, equality was a revolutionary constitutional value. The framers of the Fourteenth Amendment intended the Equal Protection Clause and its embedded ideal of interracial equality to reverse the racist dicta of the Dred Scott opinion, to validate the Civil Rights Act ...


The Last Angry Man: Benjamin Robbins Curtis And The Dred Scott Case, Earl M. Maltz Dec 2006

The Last Angry Man: Benjamin Robbins Curtis And The Dred Scott Case, Earl M. Maltz

Chicago-Kent Law Review

The dissenting opinion of Justice Benjamin Robbins Curtis in Dred Scott has generally received lavish praise from commentators. Curtis is typically praised not only for his substantive conclusions, but also for his seemingly dispassionate analysis of the legal issues presented by the case. In many respects, this praise is well-deserved; Curtis's discussions of the issues of slavery in the territories and citizenship for free blacks are models of legal reasoning. However, a close analysis of other aspects of his opinion reveals that Curtis's analysis was at times distorted by his anger with the actions of Chief Justice Taney ...


Benjamin Curtis: Top Of The List, R. Owen Williams Dec 2006

Benjamin Curtis: Top Of The List, R. Owen Williams

Chicago-Kent Law Review

Among the many brave and brilliant dissents from the Supreme Court, few are more historically significant than that of Benjamin Curtis in Dred Scott v. Sandford. Earl Maltz insists that the traditional view of Curtis as a dispassionate Justice is incorrect; Curtis is better seen as the "Last Angry Man." This paper considers the famous dissent, the man who wrote it, and the technical analysis Maltz claims as sine qua non to a proper understanding of the opinion.


Foreign Authority, American Exceptionalism, And The Dred Scott Case, Sarah H. Cleveland Dec 2006

Foreign Authority, American Exceptionalism, And The Dred Scott Case, Sarah H. Cleveland

Chicago-Kent Law Review

One distinctive feature of the Dred Scott decision for modern readers is the extent to which the Supreme Court Justices looked to foreign and international law in support of their decisions. The legal status of a slave who entered a free jurisdiction was a question that had been confronted by many courts at home and abroad, and international law had played an important role in American and European adjudication of slavery questions. The Justices therefore were confronted with the strikingly modern question of the extent to which U.S. law embraced, or distinguished itself from, foreign practice. Arguments from foreign ...


Searching For A Needle In A Haystack: The Constitutionality Of Police Dna Dragnets, Sepideh Esmaili Dec 2006

Searching For A Needle In A Haystack: The Constitutionality Of Police Dna Dragnets, Sepideh Esmaili

Chicago-Kent Law Review

DNA dragnets—the mass warrantless DNA testing of individuals whom authorities have neither probable cause nor reasonable suspicion to believe perpetrated a crime, but who merely live or work near a crime scene—have increasingly been used by police departments in a desperate attempt to solve puzzling crimes. The lack of success and the Fourth Amendment constitutional concerns raised by DNA dragnets, however, lead this practice to be suspect. Under the Fourth Amendment, all searches of an individual must be reasonable. The reasonableness of any search typically depends on the government obtaining a warrant prior to the search. While there ...


Legality And Legitimacy In Dred Scott: The Crisis Of The Incomplete Constitution, Michael P. Zuckert Dec 2006

Legality And Legitimacy In Dred Scott: The Crisis Of The Incomplete Constitution, Michael P. Zuckert

Chicago-Kent Law Review

The original Constitution was incomplete in that it contained a disparity between the principles of legitimacy of the system and the legality of the institution of slavery. Political communities marked by such disharmony are beset with pressures to make the system consistent in one way or another. Such indeed was the fate of the U.S. during the antebellum era. Three typical responses arose: to make legality correspond to legality (by redefining the principles of legitimacy of the system), to make legality conform to legitimacy (by doing away with slavery), or to maintain the tension in ever more creative ways ...


Gay Rights And American Constitutionalism: What’S A Constitution For?, J. Harvie Wilkinson Iii Nov 2006

Gay Rights And American Constitutionalism: What’S A Constitution For?, J. Harvie Wilkinson Iii

Duke Law Journal

No abstract provided.


Constitutional Referendum In The United States Of America, William B. Fisch Oct 2006

Constitutional Referendum In The United States Of America, William B. Fisch

Faculty Publications

The United States of America, as a federation of now 50 states each with its own constitution and legal system still enjoying a large degree of governmental autonomy within the national legal framework, presents a strikingly mixed picture regarding the use of direct democracy--the submission of proposed governmental action to a popular vote--in law- and constitution-making processes. At the national level, direct democracy has never been used for either type of enactment. At the state and local level, however, its use dates back to colonial times and has been increasing gradually (though still not universal) ever since. Since the mid-19th ...


Guns, Drugs, And. . . Federalism? - Gonzales V. Raich Enfeebles The Rehnquist Court's Lopez-Morrison Framework, David L. Luck Oct 2006

Guns, Drugs, And. . . Federalism? - Gonzales V. Raich Enfeebles The Rehnquist Court's Lopez-Morrison Framework, David L. Luck

University of Miami Law Review

No abstract provided.


The War Powers Outside The Courts, William Michael Treanor Oct 2006

The War Powers Outside The Courts, William Michael Treanor

Indiana Law Journal

Symposium: War, Terrorism and Torture: Limits on Presidential Power in the 21st Century. Convened by the American Constitution Society for Law and Policy and the Indiana University School of Law- Bloomington, prominent legal scholars, human rights advocates and government lawyers gathered in Bloomington on October 7, 2005.


Same-Sex Marriage, Indian Tribes, And The Constitution, Matthew L.M. Fletcher Oct 2006

Same-Sex Marriage, Indian Tribes, And The Constitution, Matthew L.M. Fletcher

University of Miami Law Review

No abstract provided.


A More Perfect Union, Alan E. Garfield Sep 2006

A More Perfect Union, Alan E. Garfield

Alan E Garfield

No abstract provided.


Editorial, Upholding Separation Of Power Was Proper, John Gedid Sep 2006

Editorial, Upholding Separation Of Power Was Proper, John Gedid

John L. Gedid

No abstract provided.


Originalism And Parking Tickets, Lawrence Rosenthal Sep 2006

Originalism And Parking Tickets, Lawrence Rosenthal

ExpressO

Originalism – the view that constitutional provisions should be interpreted as they were “understood at the time of the law’s enactment” – is the ascendant method of constitutional interpretation. In particular, originalists argue that the Constitution's open-ended provisions should be interpreted in light of their generally understood legal meaning at the time of their framing. An originalist view of due process -- entitling civil and criminal defendants to those procedures considered "due" at the time of framing -- would accordingly condemn any number of innovations in criminal and civil procedures' that alter framing-era procedural rights, such as the novel systems for administrative ...


No Due Process: How The Death Penalty Violates The Constitutional Rights Of The Family Members Of Death Row Prisoners, Rachel C. King Aug 2006

No Due Process: How The Death Penalty Violates The Constitutional Rights Of The Family Members Of Death Row Prisoners, Rachel C. King

ExpressO

The article makes the case for a novel theory that the death penalty violates the constitutional rights of the family members of death row prisoners. First, the article establishes that Americans are entitled to a fundamental “right to family,” based on a long history of Supreme Court jurisprudence that has established substantive due process rights such as the right to marry, to use contraceptives, to have children, to make educational decisions for children, and decisions about how to configure ones’ household. Next, the article makes the case that the death penalty interferes with the constitutional right to family by harming ...


Social Reproduction And Religious Reproduction: A Democratic-Communitarian Analysis Of The Yoder Problem, Josh Chafetz Jul 2006

Social Reproduction And Religious Reproduction: A Democratic-Communitarian Analysis Of The Yoder Problem, Josh Chafetz

ExpressO

In 1972, Wisconsin v. Yoder presented the Supreme Court with a sharp clash between the state's interest in social reproduction through education -- that is, society's interest in using the educational system to perpetuate its collective way of life among the next generation -- and the parents' interest in religious reproduction -- that is, their interest in passing their religious beliefs on to their children. This Article will take up the challenge of that clash, a clash which continues to be central to current debates over issues like intelligent design in the classroom. This Article engages with the competing theories put ...


Independence Day Honors Lofty Concept, Hard-Won Reality, Alan E. Garfield Jul 2006

Independence Day Honors Lofty Concept, Hard-Won Reality, Alan E. Garfield

Alan E Garfield

No abstract provided.


Florida’S Past And Future Roles In Education Finance Reform Litigation, Scott R. Bauries Jul 2006

Florida’S Past And Future Roles In Education Finance Reform Litigation, Scott R. Bauries

Law Faculty Scholarly Articles

In federalist parlance, the states often are called laboratories of democracy. Nowhere is this truer than in the field of education, and almost no subset of the education field lends itself to this label more than education finance. Since 1973, with very few notable exceptions, the entire development of the practice of education finance has proceeded through state-specific reforms. These reforms have occurred mostly through legislative policymaking, but the courts have played an important role in directing that policy development.

If one were to seek to observe one of these laboratories in action—to witness the interaction of the courts ...


Constitutional Law—Commerce Clause—California Takes A Hit: The Supreme Court Upholds Congressional Authority Over The State-Approved Use Of Medicinal Marijuana. Gonzales V. Raich, 545 U.S. 1 (2005)., Rick Behring Jr. Jul 2006

Constitutional Law—Commerce Clause—California Takes A Hit: The Supreme Court Upholds Congressional Authority Over The State-Approved Use Of Medicinal Marijuana. Gonzales V. Raich, 545 U.S. 1 (2005)., Rick Behring Jr.

University of Arkansas at Little Rock Law Review

No abstract provided.


Kramer's Popular Constitutionalism: A Quick Normative Assessment, Sarah Harding Jun 2006

Kramer's Popular Constitutionalism: A Quick Normative Assessment, Sarah Harding

Chicago-Kent Law Review

This paper steps outside of the historical debate about the origins and development of judicial review and focuses on the normative claim that Kramer makes near the end of Popular Constitutionalism. Should the Court, as Kramer argues, have a little more humility when it comes to judicial review and its authority over constitutional interpretation? Should the Court have more respect for legislative decision-making? These questions are addressed through a brief exploration of the ideas of a leading skeptic of judicial review, Jeremy Waldron, and a glimpse at the experiences of other rights-respecting nations.


Constitutional Education For The People Themselves, Sheldon Nahmod Jun 2006

Constitutional Education For The People Themselves, Sheldon Nahmod

Chicago-Kent Law Review

Professor Nahmod, like Dean Kramer, remains profoundly disturbed by the Supreme Court's triumphalist decision in Bush v. Gore. However, he does not go so far as Dean Kramer in arguing normatively for a return to "popular constitutionalism." Rather, his more modest position is that the Supreme Court, Congress, and the President, together with the bar and the media, have a normative obligation to educate "the people themselves" in constitutional matters. This often-overlooked and vitally important "constitutional education" of the people is based on the self-government rationale of both our constitutional structure and the First Amendment. Professor Nahmod suggests how ...


Politics, Police, Past And Present: Larry Kramer's The People Themselves, Christopher Tomlins Jun 2006

Politics, Police, Past And Present: Larry Kramer's The People Themselves, Christopher Tomlins

Chicago-Kent Law Review

This article addresses aspects of the debate over Larry Kramer's The People Themselves and, more generally, current interest in popular constitutionalism before engaging, briefly, with the book itself. Because I find Kramer's book in general terms unexceptionable I see no particular reason to engage in the kind of lengthy critical assessment undertaken by those scholars whose disagreements with the book are pronounced. Instead I focus on three "sites" that the book traverses that I consider sites of missed opportunity. They are, first, the question of the people and the Constitution; second, the people and politics; third, the question ...


The Uses Of History In The Supreme Court's Takings Clause Jurisprudence, Jonathan Lahn Jun 2006

The Uses Of History In The Supreme Court's Takings Clause Jurisprudence, Jonathan Lahn

Chicago-Kent Law Review

In a series of seminal cases interpreting the Fifth Amendment's Takings Clause, the United States Supreme Court has used arguments that can be called "historical" to justify its holdings and negotiate the relationship between the static language of the Constitution and the dynamic realities of American life. While historical arguments have been a recurring theme in Takings Clause jurisprudence over the past eighty years, the way in which they are used has shifted. While historical accounts of changes in American society over time once served to justify new forms of governmental intervention in the realm of private property, a ...


Tom Delay: Popular Constitutionalist?, Neal Devins Jun 2006

Tom Delay: Popular Constitutionalist?, Neal Devins

Chicago-Kent Law Review

Focusing on congressional efforts to override state court decisionmaking in the Terri Schiavo case, this essay examines some of the practical problems associated with implementing Larry Kramer's popular constitutionalism. In particular, lawmakers will invoke the "will of the people" when, in fact, they are pursuing special interest politics. More than that, the Schiavo case calls attention to the increasing partisanship within Congress. This partisanship, contrary to the objectives of popular constitutionalism, makes lawmakers less likely to advance the national interest and more likely to focus their energies on their increasingly partisan base. For this very reason, today's Congress ...


Popular Constitutionalism As Political Law, Mark Tushnet Jun 2006

Popular Constitutionalism As Political Law, Mark Tushnet

Chicago-Kent Law Review

The People Themselves develops the idea that constitutional law is a special kind of law, political law. Examining some of the book's reviews, this Article explains how political law can be developed through relatively unstructured interactions among the people, political leaders in Congress and the presidency, and the courts. It argues that understanding how constitutional law as political law is developed requires, not the development of crisp analytic criteria, but close historical analysis of particular interactions. The Article identifies criteria for evaluating how popular constitutionalism compares to judicial review as a mechanism for enforcing constitutional rights, arguing that a ...