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Articles 1 - 8 of 8
Full-Text Articles in Law
Why Justice Scalia Should Be A Constitutional Comparativist ... Sometimes, David Gray
Why Justice Scalia Should Be A Constitutional Comparativist ... Sometimes, David Gray
David C. Gray
The burgeoning literature on transjudicialism and constitutional comparativism generally reaffirms the familiar lines of contest between textualists and those more inclined to read the Constitution as a living document. As a consequence, it tends to be politicized, if not polemic. This article begins to shift the debate toward a more rigorous focus on first principles. In particular, it argues that full faith to the basic commitments of originalism, as advanced in Justice Scalia's writings, opinions, and speeches, requires domestic courts to consult contemporary foreign sources when interpreting universalist language found in the Constitution. While the article does not propose a …
The Pros And Cons Of Politically Reversible 'Semisubstantive' Constitutional Rules, Dan T. Coenen
The Pros And Cons Of Politically Reversible 'Semisubstantive' Constitutional Rules, Dan T. Coenen
Scholarly Works
Most observers of constitutional adjudication believe that it works in an all-or-nothing way. On this view, the substance of challenged rules is of decisive importance, so that political decision makers may resuscitate invalidated laws only by way of constitutional amendment. This conception of constitutional law is incomplete. In fact, courts often use so-called “semisubstantive” doctrines that focus on the processes that nonjudicial officials have used in adopting constitutionally problematic rules. When a court strikes down a rule by using a motive-centered or legislative-findings doctrine, for example, political decision makers may revive that very rule without need for a constitutional amendment. …
Equality, Conscience, And The Liberty Of The Church: Justifying The Controversiale Per Controversialius, Patrick Mckinley Brennan
Equality, Conscience, And The Liberty Of The Church: Justifying The Controversiale Per Controversialius, Patrick Mckinley Brennan
Working Paper Series
This paper considers the central normative claim of Martha Nussbaum’s Liberty of Conscience: In Defense of America’s Tradition of Religious Equality, viz., that the U.S. Constitution’s religion clauses should be construed to provide equal (and extensive) protection to the vulnerable human faculty called conscience. The paper argues that Nussbaum’s argument from Rawlsian political liberalism that leads to her normative constitutional claim amounts, perversely, to an attempt to justify the controversial by the more controversial. The paper goes on to argue that while equality and conscience are concepts that are reasonably contested, Nussbaum illegitimately gives them priority over the also reasonably …
Delivering The Goods: Herein Of Mead, Delegations, And Authority, Patrick Mckinley Brennan
Delivering The Goods: Herein Of Mead, Delegations, And Authority, Patrick Mckinley Brennan
Working Paper Series
This paper argues, first, that the natural law position, according to which it is the function of human law and political authorities to instantiate certain individual goods and the common good of the political community, does not entail judges' having the power or authority to speak the natural law directly. It goes on to argue, second, that lawmaking power/authority must be delegated by the people or their representatives. It then argues, third, that success in making law depends not just on the exercise of delegated power/authority, but also on the exercise of care and deliberation or, in the article's terms, …
Medellin And Originalism, D. A. Jeremy Telman
Medellin And Originalism, D. A. Jeremy Telman
D. A. Jeremy Telman
In Medellín v. Texas, the Supreme Court permitted Texas to proceed with the execution of a Mexican national who had not been given timely notice of his right of consular notification and consultation in violation of the United States’ obligations under the Vienna Convention on Consular Relations. It did so despite its finding that the United States had an obligation under treaty law to comply with an order of the International Court of Justice that Medellín’s case be granted review and reconsideration. The international obligation, the Court found, was not domestically enforceable because the treaties at issue were not self-executing. …
The Supreme Courts Municipal Bond Decision And The Market-Participant Exception To The Dormant Commerce Clause, Dan T. Coenen
The Supreme Courts Municipal Bond Decision And The Market-Participant Exception To The Dormant Commerce Clause, Dan T. Coenen
Scholarly Works
Does it violate the dormant Commerce Clause for a state to exempt interest earned on its own bonds, but no others, from income taxation? In a recent decision, the Supreme Court answered this question in the negative. Six members of the Court found the case controlled by the state-self-promotion exception to the dormancy doctrine's antidiscrimination rule. Three of those Justices, however, went further by also invoking the longstanding market-participant exception to sustain the discriminatory state tax break. This Essay challenges that alternative line of analysis. According to the author, the plurality's effort to apply the market-participant principle: (1) invites a …
Original Intention And Public Meaning In Constitutional Interpretation, Richard Kay
Original Intention And Public Meaning In Constitutional Interpretation, Richard Kay
Richard Kay
In recent years academic explanations of the originalist approach to constitutional interpretation have shifted the relevant inquiry from the subjective intent of the constitution-makers to the "original public meaning" of the Constitution's words. This article is a critical analysis of that development. In the actual course of adjudication by honest and competent judges either method should usually yield the same result. The reliance on public meaning, however, distracts the interpreter from the connection between the normative force of the Constitution and the founding events, a link that is essential to the legitimacy of constitutional judicial review. In the hands of …
The Unexceptionalism Of Evolving Standards, Corinna Barrett Lain
The Unexceptionalism Of Evolving Standards, Corinna Barrett Lain
Corinna Lain
Conventional wisdom is that outside the Eighth Amendment context, the Supreme Court does not engage in the sort of explicitly majoritarian state nose-counting for which the “evolving standards of decency” doctrine is famous. Yet this impression is simply inaccurate. Across a stunning variety of civil liberties contexts, the Court routinely—and explicitly—bases constitutional protection on whether a majority of states agree with it. This Article examines the Supreme Court’s reliance on the majority position of the states to identify constitutional norms, then turns to the qualifications, explanations, and implications of state polling as a larger doctrinal phenomenon. While the past few …