Law Commons^™

Government Election Advocacy: Implications Of Recent Supreme Court Analysis, Steven J. Andre

Steven J. Andre

The constitutional issue presented by government partisanship in elections is becoming increasingly significant for review by the U.S. Supreme Court. The high Court’s decisions in Arizona Free Enterprise Club, Citizens United v. FEC and Pleasant Grove City v. Summum shed significant light on how the high Court would handle the government campaigning question if it should ever accept review on the issue. This article reviews lower court treatment of the problem and describes the U.S. Supreme Court’s analysis of election and First Amendment concerns and applies that analysis to the question of partisan government expenditures during election contests.

The Full Faith And Credit Clause: Do Factual Executive Documents Require Equivalent Treatment Between States?, Darren Prum

Darren A. Prum

Largely a development of the last half-century of government expansion, many of the health, safety, and welfare protections required by the federal government now fall upon the states. With the states picking up the load, many of the jurisdictions elect to administrate these duties through agencies. These agencies promulgate numerous regulations and enforce them as well. In making these laws and regulations, the government may require the public to submit documents that convey factual information in order to achieve the overall policy goal.

During these interactions with the public, the statute or regulations provide the guidance as to what qualifies …

The Ministerial Exception And The Limits Of Religious Sovereignty, Ian C. Bartrum

Ian C Bartrum

This paper explores the scope of independent religious sovereignty in the context of the ministerial exception.

Obamacare And Federalism's Tug Of War Within, Erin Ryan

Erin Ryan

This month, the Supreme Court will decide what some believe will be among the most important cases in the history of the institution. In the “Obamacare” cases, the Court considers whether the Affordable Care Act (“ACA”) exceeds the boundaries of federal authority under the various provisions of the Constitution that establish the relationship between local and national governance. Its response will determine the fate of Congress’s efforts to grapple with the nation’s health care crisis, and perhaps other legislative responses to wicked regulatory problems like climate governance or education policy. Whichever way the gavel falls, the decisions will likely impact …

Are Same-Sex Marriages Really A Threat To Religious Liberty?, Eric Alan Isaacson

Eric Alan Isaacson

Some have contended that same-sex couples' marriages pose a grave danger to the religious liberty of social conservatives whose faith traditions do not bless same-sex unions. Those who oppose recognizing same-sex couples' right to marry have even contended that their clergy and churches might be subject to hate-crime prosecutions and loss of tax-exempt status if same-sex couples may lawfully marriage. This article seeks to answer those objections, pointing out that many limitations on religious marriages -- such as Roman Catholic doctrine barring remarriage by those who are civilly divorced -- parallel religious rules similarly limiting or withholding recognition from same-sex …

The Marshall Doctrine, The Taney Doctrine And Calhounian Federalism, Arthur Lang

Arthur Lang

The unity of authority vested in Congress over interstate commerce created a single continental economy. While the states of Europe endured centuries of conflict, this centralization of authority contributed to peace and prosperity in the American states. Congress has appropriated its interstate power to confront issues diverse as economic and racial discrimination, and regulatory and criminal law, expanding the rule of the federal government at the expense of the states. This paper will compare the power of the Court to invalidate state law found inconsistent with federal legislative policy under the commerce clause with the power of the Court to …

University Of Baltimore Symposium Report: Debut Of “The Matthew Fogg Symposia On The Vitality Of Stare Decisis In America”, Zena D. Crenshaw-Logal

Zena Denise Crenshaw-Logal

On the first of each two day symposium of the Fogg symposia, lawyers representing NGOs in the civil rights, judicial reform, and whistleblower advocacy fields are to share relevant work of featured legal scholars in lay terms; relate the underlying principles to real life cases; and propose appropriate reform efforts. Four (4) of the scholars spend the next day relating their featured articles to views on the vitality of stare decisis. Specifically, the combined panels of public interest attorneys and law professors consider whether compliance with the doctrine is reasonably assured in America given the: 1. considerable discretion vested in …

Preserving Reasonable Suspicion: Why Montana Should Not Follow Florence V. Burlington, Anna Conley

Anna Conley

No abstract provided.

Willful [Color-] Blindness: The Supreme Court's Equal Protection Of Ascription, Aaron J. Shuler

Aaron J Shuler

Rogers Smith in his "Beyond Tocqueville, Myrdal and Hartz: The Multiple Traditions in America," warns of novel legal systems reconstituting ascriptive American inequality. The post-Warren Courts' approach to Equal Protection, specifically their unwillingness to consider disparate impact and the difference between invidious and benign practices, betrays an "ironic innocence" as described by James Baldwin to a history of racial discrimination and domination, and a disavowal of a hiearchy that the Court perpetuates.

Cascading Constitutional Deprivation: The Right To Appointed Counsel For Mandatorily Detained Immigrants Pending Removal Proceedings, Mark Noferi

Mark L Noferi

When a Department of Homeland Security officer mandatorily detains a green card holder without bail pending his removal proceedings, for a minor crime committed perhaps long ago, the immigrant’s life takes a drastic turn. If he contests his case, he likely will remain incarcerated in substandard conditions for months or years, often longer than for his original crime, and be unable to acquire a lawyer, access family whom might assist, or access key evidence or witnesses. In these circumstances, it is all but certain he will lose his deportation case, sometimes wrongfully, and be banished abroad from work, family, and …

Bridging The Divide: Finding Common Ground On The Modern Chevron Debate, Nicholas C. Stewart

Nicholas C Stewart

Traditionally, when reviewing an administrative agency’s adjudication or rulemaking under National Labor Relations Board v. Hearst Publications, Inc., 322 U.S. 111 (1944), courts would ask whether the question before them was one of law or a mixed question of law and fact. While the former was accorded no deference, the latter received a great deal. Despite this seemingly simple construct, courts persistently confused questions of law with mixed questions, and vice versa, resulting in the inconsistent application of standards of review. In Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), the U.S. Supreme Court drastically …

A Recipe For Change: Constitutional Reform In Saint Lucia, Amit Chhabra, Damian Greaves

Amit Chhabra

In spite of relative peace over the years in the English-speaking Caribbean, recent debate has centered on whether certain constitutional charters should be amended or replaced in their entirety. This movement presents the first major opportunity for these British Commonwealth nations to re-examine their governments’ parliamentary underpinnings so as to account for adequate protections of civil liberties and inter-branch checks; moreover, it is an opportunity to disallow “the law to become the hostage of history.” Too often, “constitutional reform” is cited as an essential course of action, whereas an expansion of the body of law and improvements in enforcement of …

Dispelling The Fog About Direct Taxation, James Campbell

James Campbell

A full interpretation of capitation taxes in their historical context is here used as the key to a fresh understanding of the nature and practice of apportioned direct taxation under the Constitution. Contrary to common misconceptions, it appears that none of the key elements of the Federal powers of direct taxation – capitations, other direct taxes, and apportionment – are of uncertain meaning, or no longer of any relevance because of the abolition of slavery. Evidence for these conclusions is drawn from historical studies of taxation, records of the Constitutional Convention, Federal and state tax statutes of the period, contemporaneous …

Конституционный Процесс В Регионе Ближнего Востока, Leonid G. Berlyavskiy

Leonid G. Berlyavskiy

Studying of the Constitutional Law of the Middle East countries represents considerable interest because the given region is near to southern borders of Russia, other Post-Soviet countries and should mention their political, economic and humanitarian interests. In a number of the region countries there are unstable po-litical regimes (Iraq, Afghanistan, etc.), their constitutional development is braked and is affected by the system of international sanctions (United Nations, European Union) or State Law of the leading states of the West. On the constitutional devel-opment of some the countries (Islamic Republic Iran, the Lebanese Republic, Algeria, etc.) essential if not solving influence …

Оригиналистская Доктрина В Конституционном Праве Сша, Leonid G. Berlyavskiy

Leonid G. Berlyavskiy

Studying of concepts of the constitutional interpretation in the USA allows to get more deeply into essence of the Constitutional System of the State, to understand the reasons and sources of its evolutionary development. The originalism represents a wide spectrum of the concepts aimed at explanation of original understanding, value of the Constitution of the USA or intentions of its «founding fathers». The theoretical base of the originalism is the Legal Positivism embodied in XX century into the Normativism. The originalists are united in the American Constitution Society. Among the originalists two sects are allocated: textualists and intentionalists

The Founders’ Hermeneutic: The Real Original Understanding Of Original Intent, Robert G. Natelson

Robert G. Natelson

This Article addresses whether the American Founders expected evidence of their own subjective views to guide future interpretation of the U.S. Constitution. The Article considers a range of evidence largely overlooked or misunderstood in earlier studies, such as contemporaneous rules of legal interpretation, judicial use of legislative history, early American public debate, and pronouncements by state ratifying conventions. Based on this evidence, the Article concludes that the Founders were “original-understanding originalists.” This means that they anticipated that constitutional interpretation would be guided by the subjective understanding of the ratifiers when such understanding was coherent and recoverable and, otherwise, by the …

A Republic, Not A Democracy? Initiative, Referendum, And The Constitution's Guarantee Clause, Robert G. Natelson

Robert G. Natelson

This article debunks the myth, first arising in the 1840s, that the Founders sharply distinguished between a "republic" and a "democracy." It explains that by a "republic," most of the Founders meant a government controlled by the citizenry, following the rule of law, and without a king. Accordingly, state provisions for initiative and referendum are fully consistent with the Constitution's requirement that each state have a republican form of government; in fact, most of the governments the Founders called "republics" had featured analogous forms of direct democracy.

Paper Money And The Original Understanding Of The Coinage Clause, Robert G. Natelson

Robert G. Natelson

Over a century ago, the Supreme Court decided the Legal Tender Cases, holding that Congress could authorize legal tender paper money in addition to metallic coin. In recent years, some commentators have argued that this holding was incorrect as a matter of original understanding or original meaning, but that any other holding would be absolutely inconsistent with modern needs. They further argue that the impracticality of functioning without paper money demonstrates that originalism is not a workable method of constitutional interpretation. Those who rely on the Legal Tender Cases to discredit originalism are, however, in error. This Article shows that …

The Uneasy Case For The Affordable Care Act, Stephen E. Sachs

Stephen E. Sachs

The constitutionality of the Affordable Care Act is sometimes said to be an "easy" question, with the Act's opponents relying more on fringe political ideology than mainstream legal arguments. This essay disagrees. While the mandate may win in the end, it won't be easy, and the arguments against it sound in law rather than politics. Written to accompany and respond to Erwin Chemerinsky's essay in the same symposium, this essay argues that each substantive defense of the mandate is subject to doubt. While Congress could have avoided the issue by using its taxing power, it chose not to do so. …

Constitutional Backdrops, Stephen E. Sachs

Stephen E. Sachs

The Constitution is often said to leave important questions unanswered. These include, for example, the existence of a congressional contempt power or an executive removal power, the role of stare decisis, and the scope of state sovereign immunity. Bereft of clear text, many scholars have sought answers to such questions in Founding-era history. But why should the historical answers be valid today, if they were never codified in the Constitution's text? This Article describes a category of legal rules that weren't adopted in the text, expressly or implicitly, but which nonetheless have continuing legal force under the written Constitution. These …

The Modalities Of Constitutional Argument: A Primer, Ian C. Bartrum

Ian C Bartrum

This piece is a contribution to Linda Edwards upcoming book Readings In Persuasion: Briefs That Changed the World (forthcoming Wolters Kluwer). In it I offer a short primer on the modalities of constitutional argument, as Philip Bobbitt has described them. As someone who teaches Constitutional Law with the primary goal of educating future practitioners, I have always brought Bobbitt’s very practical (while also very theoretical) work into my classroom discussions. I have regularly used the first chapter of Bobbitt’s Constitutional Interpretation as introductory text on the subject, but I have sometimes found the reading to be too long and/or theoretical …

Constitutional Value Judgments And Interpretive Theory Choice, Ian C. Bartrum

Ian C Bartrum

Philip Bobbitt’s remarkable work describing the ‘modalities’ of constitutional argument is an immense contribution to the study of constitutional law. He describes a typology of six forms of argument alive in our interpretive practice, and offers a limited account of how these modalities interact, and sometimes conflict, in actual constitutional decisions. One of the persistent puzzles Bobbitt’s description leaves open, however, is how we should account for the choice between conflicting modalities in cases where that choice is likely outcome-determinative. Because the modalities are ‘incommensurable’—a term’s meaning in one modality may not be fully translatable into another—there is no internal …

Reducing The Drug War's Damage To Government Budgets, David B. Kopel, Trevor Burrus

David B Kopel

This Article examines ways that governments can mitigate the economic damage caused by the drug war. Part I details four specific legal reforms enacted in Colorado, which aim to reduce the problems of over-criminalization: Requiring a fiscal note for the creation of new statutory crimes; reducing drug possession from a felony to a misdemeanor; narrowing the scope of 'three strikes' laws, and; adjusting old sentences in light of new laws.

Part II explores the fiscal benefits of ending prohibition, such as reduced law enforcement costs and substantially increased tax revenues.

Part III analyzes the conflict between congressionally-imposed prohibition, and state …

How The British Gun Control Program Precipitated The American Revolution, David B. Kopel

David B Kopel

Abstract: This Article chronologically reviews the British gun control which precipitated the American Revolution: the 1774 import ban on firearms and gun powder; the 1774-75 confiscations of firearms and gun powder, from individuals and from local governments; and the use of violence to effectuate the confiscations. It was these events which changed a situation of rising political tension into a shooting war. Each of these British abuses provides insights into the scope of the modern Second Amendment.

From the events of 1774-75, we can discern that import restrictions or bans on firearms or ammunition are constitutionally suspect — at least …

The Great Gun Control War Of The Twentieth Century--And Its Lessons For Gun Laws Today, David B. Kopel

David B Kopel

A movement to ban handguns began in the 1920s in the Northeast, led by the conservative business establishment. In response, the National Rifle Association began to get involved in politics, and was able to defeat handgun prohibition. Gun control and gun rights became the subjects of intense political, social, and cultural battles for much of the rest of the 20th century, and into the 21st.

Often, the battles were a clash of absolutes: One side contended that there was absolutely no right to arms, that defensive gun ownership must be prohibited, and that gun ownership for sporting purposes could be, …

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

Carlo A. Pedrioli

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. One …

Excerpts From Chief Justice Roberts' Opinion In Nfib V. Sebelius, Wilson Huhn

Wilson R. Huhn

In NFIB v. Sebelius the Supreme Court upheld the constitutionality of all but one of the provisions of the Patient Protection and Affordable Care Act. The opinion of Chief Justice Roberts is the controlling opinion in all respects. This is an editted summary of the Chief Justice's opinion.

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

Wilson R. Huhn

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 Future Interpretation Of The Constitution, Wilson Huhn

Wilson R. Huhn

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.