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Full-Text Articles in Law
The Original Understanding Of "Property" In The Constitution, Paul J. Larkin Jr.
The Original Understanding Of "Property" In The Constitution, Paul J. Larkin Jr.
Marquette Law Review
Contemporary Supreme Court jurisprudence treats “property” as far less deserving of judicial protection than “life” or “liberty.” The Supreme Court, however, has misread American legal history. Anglo-American traditions, customs, and law held that property was an essential ingredient of the liberty that the Colonists had come to enjoy and must be protected against arbitrary governmental interference. The Framers’ generation believed that “property” and “liberty” were equally important institutions and that neither one could exist without the other. The Framers venerated property as a means of guaranteeing personal independence because (among other things) the concept of “property” embraced the legal rights …
Applying The U.S. Constitution To Foreign Asylum Seekers: Exposing A Curious, Inconsistent Practice In The Federal Courts, Shalini Bhargava Ray
Applying The U.S. Constitution To Foreign Asylum Seekers: Exposing A Curious, Inconsistent Practice In The Federal Courts, Shalini Bhargava Ray
Marquette Law Review
Asylum law is based on an international treaty, but federal courts routinely invoke U.S. constitutional norms in adjudicating asylum claims. Specifically, they rely on constitutional norms when gauging whether an asylum applicant has suffered harm amounting to “persecution” and whether the harm was inflicted “on account of” a protected characteristic, such as political opinion or religion. In a close analysis of this unusual practice, this Article argues that federal courts have come to inconsistent, and often incompatible, conclusions regarding the use of constitutional norms in the analysis of asylum claims: principally, on whether constitutional norms establish sufficient, insufficient, necessary, or …