Law Commons^™

Researching Initiatives And Referendums: A Guide For Florida, Elizabeth Outler

UF Law Faculty Publications

In Florida, direct democracy at the state level consists entirely of the initiative method of amending the State constitution. This constitutional provision was partly a response to the State’s history of obstacles to affording equitable legislative representation to all its citizens, a struggle with roots dating back to the Reconstruction era. The State constitution, governing statutes and regulations, and the Division of Elections Web site serve as the primary sources of information and guidance for those interested in the process of amending the State constitution by citizen-sponsored initiative.

Review: Voices Of American Law: Us Supreme Court Cases Meet The 21st Century, Lauren M. Collins

Law Faculty Articles and Essays

Review of documentary series Voices of American Law (Thomas B. Metzloff & Sarah Wood, producers)

Equality In Germany And The United States, Edward J. Eberle

Law Faculty Scholarship

No abstract provided.

A Different Take On The Roberts Court: The Court As An Institution, Ideology, And The Settled Nature Of American Constitutional Law, Robert A. Sedler

Law Faculty Research Publications

No abstract provided.

Reconsidering Gobitis: An Exercise In Presidential Leadership, Robert Tsai

Articles in Law Reviews & Other Academic Journals

In June of 1940, the Supreme Court ruled 8-1 in Minersville School District v. Gobitis that the First Amendment posed no barrier to the punishment of two school age Jehovah's Witnesses who refused to pay homage to the American flag. Three years later, the Justices reversed themselves in West Virginia State Board of Education v. Barnette. This sudden change has prompted a host of explanations. Some observers have stressed changes in judicial personnel in the intervening years; others have pointed to the wax and wane of general anxieties over the war; still others have emphasized the sympathy-inspiring acts of …

When Should Original Meanings Matter?, Richard A. Primus

Articles

Constitutional theory lacks an account of when each of the familiar sources of authority-text, original meaning, precedent, and so on-should be given weight. The dominant tendency is to regard all sources as potentially applicable in every case. In contrast, this Article proposes that each source of authority is pertinent in some categories of cases but not in others, much as a physical tool is appropriate for some but not all kinds of household tasks. The Article then applies this approach to identify the categories of cases in which original meaning is, or is not, a valid factor in constitutional decisionmaking.

Constitution Day, 2008, Robert Berry

Librarian Publications

Robert Berry, the research librarian for the social sciences at the Sacred Heart University Library, has written an essay about the United States Constitution and the freedom of speech and expression. The essay was written for the occasion of Constitution Day 2008 at Sacred Heart University.

Quintessential Elements Of Meaningful Constitutions In Post-Conflict States, William W. Van Alstyne

Faculty Scholarship

This examination compares several successful constitutions formulated to govern countries just formed from the conclusion of armed conflicts (including the U.S.). Some of the most important elements gleaned from these successful constitutions include an independent court before which one may appeal to the new constitution because such a constitution adequately secures the integrity of the court itself.

Reconsidering Gobitis: An Exercise In Presidential Leadership, Robert L. Tsai

Faculty Scholarship

In June of 1940, the Supreme Court ruled 8-1 in Minersville School District v. Gobitis that the First Amendment posed no barrier to the punishment of two school age Jehovah's Witnesses who refused to pay homage to the American flag. Three years later, the Justices reversed themselves in West Virginia State Board of Education v. Barnette. This sudden change has prompted a host of explanations. Some observers have stressed changes in judicial personnel in the intervening years; others have pointed to the wax and wane of general anxieties over the war; still others have emphasized the sympathy-inspiring acts of …

Resisting The Socialist Fetish, Shubhankar Dam

Research Collection Yong Pung How School Of Law

No abstract provided.

On Federalism, Freedom, And The Founders' View Of Retained Rights - A Reply To Randy Barnett, Kurt T. Lash

Law Faculty Publications

In A Textual-Historical Theory of the Ninth Amendment, 60 Stanford Law Review, I explain how some of the most common theories of the Ninth Amendment either have nothing to do with the actual text of the Amendment or place the text in conflict with similar terms in the Tenth Amendment. Focusing on the actual words of the Amendment, I argue that the text of the Ninth point towards a federalist rule of construction in which the people's retained rights are necessarily left to the control of the collective people in the several states. I also explain how this reading fits …

Civil War In The U.S. Foreign Relations Law: A Dress Rehearsal For Modern Transformations, The The Use And Misuse Of History In U.S. Foreign Relations Law, Thomas H. Lee

Faculty Scholarship

The first of the four U.S. foreign relations law insights of the Prize Cases that this Article will discuss is the notion that international law provides a basis for the President's exercise of military force in a manner neither specifically enumerated in the Constitution nor preauthorized by congressional enactments. The specific military action was the proclamation of a naval blockade that applied not only to active Confederate belligerents but also to loyal U.S. citizens residing in seceding or soon-to-secede states and to foreign neutral citizens. The second insight is the notion that federal constitutional law protections for U.S. citizens, such …

Limiting Federal Agency Preemption: Recommendations For A New Federalism Executive Order, William Funk, Thomas Mcgarity, Nina A. Mendelson, Sidney Shapiro, David Vladeck, Matthew Shudtz, James Goodwin

Other Publications

The structure of the U.S. Constitution reflects a profound respect for the principles of federalism and state sovereignty. These principles require the federal government to recognize and encourage opportunities for state and local governments to exercise their authority, especially in areas of traditional state concern such as the protection of the health, safety, and welfare of their citizens. However, over the last six years there has been a coordinated Executive Branch effortto use the regulatory process to shield certain product manufacturers from state tort liability. The Food and Drug Administration, National Highway Traffic Safety Administration, and Consumer Product Safety Commission, …

Kurt Lash's Majoritarian Difficulty: A Response To A Textual-Historical Theory Of The Ninth Amendment, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Kurt Lash believes that, in addition to individual natural rights, the Ninth Amendment protects collective or majoritarian rights as well. In this essay the author explains why Lash’s majoritarian vision is contrary to the antimajoritarianism of the man who devised the Ninth Amendment, James Madison, and those who wrote the Constitution. Not coincidentally, it is contrary to the individualism of the other amendments constituting the Bill of Rights, and the public meaning of the Ninth Amendment as it was received during its ratification. It is also contrary to the individualist conception of popular sovereignty adopted in the text of the …

Constitutional Possibilities, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

What are our constitutional possibilities? The importance of this question is illustrated by the striking breadth of recent discussions, ranging from the interpretation of the United States Constitution as a guarantee of fundamental economic equality and proposals to restore the lost constitution to arguments for the virtual abandonment of structural provisions of the Constitution of 1789. Such proposals are conventionally understood as placing constitutional options on the table as real options for constitutional change. Normative constitutional theory asks the question whether these options are desirable--whether political actors (citizens, legislators, executives, or judges) should take action to bring about their plans …

Lower Courts And Constitutional Comparativism, Roger P. Alford

Journal Articles

The issue of constitutional comparativism has been a topic of significant commentary in recent years. However, there is one aspect of this subject that has been almost completely ignored by scholars: the reception, or lack thereof, of constitutional comparativism by state and lower federal courts. While the Supreme Court's enthusiasm for constitutional comparativism has waxed and now waned, lower state and federal courts have remained resolutely agnostic about this new movement. This is of tremendous practical significance because over ninety-nine percent of all cases are resolved by lower state and federal courts. Accordingly, if the lower courts eschew constitutional comparativism, …

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

Scholarly Works

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.

Taking Care Of Treaties, Edward T. Swaine

GW Law Faculty Publications & Other Works

There is little consensus about the scope of the President's powers to cure breaches of U.S. treaty obligations, let alone the influence of decisions by international tribunals finding the United States in breach. Such decisions do not appear to be directly effective under U.S. law. Treaties and statutes address questions of domestic authority sporadically and incompletely, and are suited to the task only if construed heroically; the President's general constitutional authority relating to foreign affairs is sometimes invoked, but its extent is uncertain and turns all too little on the underlying law at issue. Relying on either theory to cope …

Constitutional Overview Of Post-9/11 Barriers To Free Speech And A Free Press, Nadine Strossen

Articles & Chapters

No abstract provided.

The Cross At College: Accommodation And Acknowledgment Of Religion At Public Universities, Ira C. Lupu, Robert W. Tuttle

GW Law Faculty Publications & Other Works

In the fall of 2006, President Gene Nichol of the College of William & Mary decided that the college - a public institution - should no longer display a cross on the altar table of the college's Wren Chapel. He ordered the cross moved to a back room, from which it could be returned to the altar table during Christian worship. This decision sparked an outcry from many Christian conservatives, who asserted that President Nichol was undermining the college's historical legacy. After a period of campus furor, a special Committee proposed and the President accepted a compromise - the cross …

The Perils Of Theory, Peter L. Strauss

Faculty Scholarship

As I recall, Professor Clark had more sense than to be my student at Columbia, but I heard a lot about him from admiring colleagues. Clearly he has fulfilled the promise they saw, and this remarkable Symposium is only one indicator of that. The article to which our attention is properly drawn, more than two and a quarter centuries into our nation's history, has an originalist base, tightly and persuasively focused on original understandings of the Supremacy Clause. Professor Clark lays out a cogent account of the Clause's politics and the centrality of its language to the most fundamental of …

How To Entrench A De Facto State Church In Russia: A Guide In Progress, Robert C. Blitt

Scholarly Works

The Russian Orthodox Church's (ROC) assertion of a constitutionally inappropriate role in affairs of state has severely compromised Russia's secular constitutional framework. This gradual but steady erosion of the barrier between church and state is evidenced by a series of contemporary developments that are inexorably linked to the Church's vision of its traditional place in Russian history.

Disturbingly, each successive post-communist regime has further enabled this behavior, and there is no indication that the political transition from President Vladimir Putin to his hand-picked successor, Dmitry Medvedev, will change anything.

This paper argues that the emerging pattern of collusion presents a …