Law Commons^™

Due Process Abroad, Nathan S. Chapman

Northwestern University Law Review

Defining the scope of the Constitution’s application outside U.S. territory is more important than ever. In February, the Supreme Court heard oral argument about whether the Constitution applies when a U.S. officer shoots a Mexican teenager across the border. At the same time, federal courts across the country scrambled to evaluate the constitutionality of an Executive Order that, among other things, deprived immigrants of their right to reenter the United States. Yet the extraterritorial reach of the Due Process Clause—the broadest constitutional limit on the government’s authority to deprive persons of “life, liberty, or property”—remains obscure.

Up to now, scholars …

Contra Scalia, Thomas, And Gorsuch: Originalists Should Adopt A Living Constitution, R. Randall Kelso

University of Miami Law Review

Two main approaches appear in the popular literature on constitutional interpretation: originalism and non-originalism. An originalist approach refers back to some aspect of the framers’ and ratifiers’ intent or action to justify a decision. A non-originalist approach bases the goal of constitutional interpretation in part on consideration of some justification independent of the framers’ and ratifiers’ intent or action.

What is often unappreciated in addressing the question of whether to adopt an originalist or non-originalist approach to constitutional interpretation is the complication that emerges if one concludes that the framing and ratifying generation believed in the model of a living …

Alexis De Tocqueville And American Constitutional Law: On Democracy, The Majority Will, Individual Rights, Federalism, Religion, Civic Associations And Originalist Constitutional Theory, Philip C. Kissam

Maine Law Review

Count Alexis de Tocqueville's Democracy in America has been said to be "at once the best book ever written on democracy and the best book ever written on America. " This praise should perhaps be tempered by consideration of Tocqueville' s purposes and the historical circumstances within which he worked and understood both democracy and America. Yet Tocqueville's insights into American democracy as of the 1830s undoubtedly constitute a rich source of constitutional thought-either as support for particular constitutional principles or as constitutional ideas that should be contested. In a recent notable instance, John McGinnis has argued that Tocqueville's ideas …

Confronting Crawford: Justice Scalia, The Judicial Method, And The Limits(?) Of Originalism, Gary S. Lawson

Faculty Scholarship

Crawford v. Washington, which revamped (and even revolutionized) interpretation and application of the Sixth Amendment’s Confrontation Clause, just might be Justice Scalia’s most important majority opinion, for three reasons. First, its impact on the criminal justice system has been immense, and even if the case is overruled in the near future, as seems quite possible, that effect will still likely exceed the concrete impact of any other opinion that he wrote. Second, and more importantly, Crawford emphasizes the trite but crucial point that methodology matters. Crawford has generally been a boon to criminal defendants and a bane to prosecutors. When …

Originalism And The Criminal Law: Vindicating Justice Scalia's Jurisprudence - And The Constitution, Adam Lamparello, Charles E. Maclean

Akron Law Review

Justice Scalia was not perfect—no one is—but he was not a dishonest jurist. As one commentator explains, “[i]f Scalia was a champion of those rights [for criminal defendants, arrestees], he was an accidental champion, a jurist with a deeper objective—namely, fidelity to what he dubbed the ‘original meaning’ reflected in the text of the Constitution—that happened to intersect with the interests of the accused at some points in the constellation of criminal law and procedure.” Indeed, Justice Scalia is more easily remembered not as a champion of the little guy, the voiceless, and the downtrodden, but rather, as Texas Gov. …

Justice Scalia's Eighth Amendment Jurisprudence: An Unabashed Foe Of Criminal Defendants, Michael Vitiello

Akron Law Review

Justice Scalia’s death has already produced a host of commentary on his career. Depending on the issue, Justice Scalia’s legacy is quite complicated. Justice Scalia’s commitment to originalism explains at least some of his pro-defendant positions. Some of his supporters point to such examples to support a claim that Justice Scalia was principled in his application of his jurisprudential philosophy. However, in one area, Justice Scalia was an unabashed foe of criminal defendants: his Eighth Amendment jurisprudential dealing with terms of imprisonment. There, based on his reading of the historical record, he argued that the Eighth Amendment’s prohibition against cruel …

For Legal Principles, Mitchell N. Berman

All Faculty Scholarship

Most legal thinkers believe that legal rules and legal principles are meaningfully distinguished. Many jurists may have no very precise distinction in mind, and those who do might not all agree. But it is widely believed that legal norms come in different logical types, and that one difference is reasonably well captured by a nomenclature that distinguishes “rules” from “principles.” Larry Alexander is the foremost challenger to this bit of legal-theoretic orthodoxy. In several articles, but especially in “Against Legal Principles,” an influential article co-authored with Ken Kress two decades ago, Alexander has argued that legal principles cannot exist.

In …

The Magic Mirror Of "Original Meaning": Recent Approaches To The Fourteenth Amendment, Bret Boyce

Maine Law Review

Nearly a century and a half after its adoption, debate continues to rage over the original meaning of the Fourteenth Amendment’s guarantees of basic rights. Of the three clauses in the second sentence of Section One, the latter two (the Due Process and Equal Protection Clauses) loom very large in modern Supreme Court decisions, while the first (the Privileges or Immunities Clause) is of minimal importance, having been invoked only once to strike down a state law. Originalists—those who hold that the Constitution should be interpreted according to its original meaning—have often deplored this state of affairs. Many have argued …

Natural Rights And The First Amendment, Jud Campbell

Law Faculty Publications

The Supreme Court often claims that the First Amendment reflects an original judgment about the proper scope of expressive freedom. After a century of academic debate, however, the meanings of speech and press freedoms at the Founding remain remarkably hazy. Many scholars, often pointing to Founding Era sedition prosecutions, emphasize the limited scope of these rights. Others focus on the libertarian ideas that helped shape opposition to the Sedition Act of 1798. Still more claim that speech and press freedoms lacked any commonly accepted meaning. The relationship between speech and press freedoms is contested, too. Most scholars view these freedoms …

Enduring Originalism, Kevin C. Walsh

Law Faculty Publications

If our law requires originalism in constitutional interpretation, then that would be a good reason to be an originalist. This insight animates what many have begun to call the "positive turn" in originalism. Defenses of originalism in this vein are "positive" in that they are based on the status of the Constitution, and constitutional law, as positive law. This approach shifts focus away from abstract conceptual or normative arguments about interpretation and focuses instead on how we actually understand and apply the Constitution as law. On these grounds, originalism rests on a factual claim about the content of our law: …

Republicanism And Natural Rights At The Founding, Jud Campbell

Law Faculty Publications

Today we tend to think about natural rights as non-positivist claims to limits on governmental authority — typically claims derived from religion, morality, or logic. These “rights,” by their very definition, exist independent of governmental control. Indeed, that is what makes them “natural.” This Essay, responding to Randy Barnett's Our Republican Constitution, sketches a different view of Founding-Era natural rights, their relationship to governmental authority, and their enforceability. With the exception of certain “rights of the mind,” natural rights were not really “rights” at all, in the sense of being determinate legal privileges or immunities. Rather, embracing natural rights meant …

Datamining The Meaning(S) Of Progress, Jake Linford

Scholarly Publications

No abstract provided.

Wittgenstein's Poker: Contested Constitutionalism And The Limits Of Public Meaning Originalism, Ian C. Bartrum

Scholarly Works

Constitutional originalism is much in the news as our new President fills the Supreme Court vacancy Antonin Scalia's death has created. "Public meaning" originalism is probably the most influential version of originalism in current theoretical circles. This essay argues that, while these "New Originalists" have thoughtfully escaped some of the debilitating criticisms leveled against their predecessors, the result is a profoundly impoverished interpretive methodology that has little to offer most modern constitutional controversies. In particular, the fact that our constitutional practices are contested-that is, we often do not seek semantic or legal agreement-makes particular linguistic indeterminacies highly problematic for approaches …

Originalism And Level Of Generality, Peter J. Smith

Georgia Law Review

Even if one concedes that the meaning of the
Constitution today is its original meaning, at what level of
generality should one seek that meaning? In considering
whether bans on same-sex marriageviolate the Fourteenth
Amendment, for example, should we seek to determine how
the framers of the Amendment would have answered that
question, or should we instead seek to discern the broad
principle-perhaps "equality" or "no caste-like
discrimination"-that the Amendment objectively
incorporated, even if application of that principle today
might produce results that the framers would not have
anticipated? The level of generality at which we ask the
question almost …

The Tragedy Of Justice Scalia, Mitchell N. Berman

All Faculty Scholarship

Justice Antonin Scalia was, by the time of his death last February, the Supreme Court’s best known and most influential member. He was also its most polarizing, a jurist whom most students of American law either love or hate. This essay, styled as a twenty-year retrospective on A Matter of Interpretation, Scalia’s Tanner lectures on statutory and constitutional interpretation, aims to prod partisans on both sides of our central legal and political divisions to better appreciate at least some of what their opponents see—the other side of Scalia’s legacy. Along the way, it critically assesses Scalia’s particular brand of …

Justice Scalia, The Nondelegation Doctrine, And Constitutional Argument, William K. Kelley

Journal Articles

Justice Antonin Scalia wrote two major opinions considering the nondelegation doctrine. In Whitman v. American Trucking Associations, he accepted and applied a very broad, indeed virtually unlimited, view of Congress's power to delegate authority to administrative agencies that was consistent with the Court's precedents since the New Deal. In his dissent in Mistretta v. United States, however, he concluded that the constitutional structure formally barred the delegation of naked rulemaking power to an agency that was untethered to other law execution tasks. This essay analyzes Justice Scalia's nondelegation jurisprudence in light of the general jurisprudential commitments he championed throughout his …

Countering The Majoritarian Difficulty, Amy Coney Barrett

Journal Articles

In Our Republican Constitution, Randy Barnett argues that the United States Constitution rests on a foundation of individual rather than collective popular sovereignty. Grounding the legitimacy of the government in the authority given it by each individual rather than by the People as a whole echoes the thesis, advanced in Barnett’s prior work, that the government must justify incursions upon individual liberty. If the People as a body are sovereign and the Constitution is designed to facilitate democratic self-governance, legislation is presumptively legitimate because it represents the sovereign will of the democratic majority. If the individual is sovereign, by contrast, …