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Full-Text Articles in Law

Does The Second Amendment Protect Firearms Commerce?, David B. Kopel Apr 2104

Does The Second Amendment Protect Firearms Commerce?, David B. Kopel

David B Kopel

The Second Amendment protects the operation of businesses which provide Second Amendment services, including gun stores. Although lower federal courts have split on the issue, the right of firearms commerce is demonstrated by the original history of the Second Amendment, confirmed by the Supreme Court in District of Columbia v. Heller, and consistent with the Court's precedents on other individual rights.


The Nineteenth Amendment And The U.S. "Women's Emancipation Policy" In Post-World War Ii Occupied Japan: Going Beyond Suffrage, Cornelia Weiss May 2020

The Nineteenth Amendment And The U.S. "Women's Emancipation Policy" In Post-World War Ii Occupied Japan: Going Beyond Suffrage, Cornelia Weiss

Akron Law Review

This paper explores the influence of the Nineteenth Amendment on U.S. military occupation policy in Post-World War II Japan. A mere 25 years after the ratification of the Nineteenth Amendment, actions taken during the military occupation did not stop at suffrage for Japanese women. Actions included a constitution that provided for women’s “equality” (what, even 100 years after the ratification of the Nineteenth Amendment, is still absent in the U.S. constitution). In addition to addressing women’s suffrage and constitutional equality, this paper examines the successes and failures of the Occupation to eradicate the legal enslavement of ...


Considerations Of History And Purpose In Constitutional Borrowing, Robert L. Tsai May 2020

Considerations Of History And Purpose In Constitutional Borrowing, Robert L. Tsai

William & Mary Bill of Rights Journal

No abstract provided.


Constitutional Conflict And Sensitive Places, Darrell A. H. Miller May 2020

Constitutional Conflict And Sensitive Places, Darrell A. H. Miller

William & Mary Bill of Rights Journal

No abstract provided.


Political And Non-Political Speech And Guns, Gregory P. Magarian May 2020

Political And Non-Political Speech And Guns, Gregory P. Magarian

William & Mary Bill of Rights Journal

No abstract provided.


The Deliberative-Privacy Principle: Abortion, Free Speech, And Religious Freedom, B. Jessie Hill May 2020

The Deliberative-Privacy Principle: Abortion, Free Speech, And Religious Freedom, B. Jessie Hill

William & Mary Bill of Rights Journal

No abstract provided.


The Epistemic Function Of Fusing Equal Protection And Due Process, Deborah Hellman May 2020

The Epistemic Function Of Fusing Equal Protection And Due Process, Deborah Hellman

William & Mary Bill of Rights Journal

The fusion of equal protection and due process has attracted significant attention with scholars offering varied accounts of its purpose and function. Some see the combination as productive, creating a constitutional violation that neither clause would generate alone. Others see the combination as merely strategic, offered to make a claim acceptable at a particular historical moment but not genuinely necessary. This Article offers a third alternative. Judges have and should bring both equal protection and due process together to learn what each clause independently requires. On this Epistemic vision of constitutional fusion, a focus on equality helps judges learn what ...


Four Responses To Constitutional Overlap, Michael Coenen May 2020

Four Responses To Constitutional Overlap, Michael Coenen

William & Mary Bill of Rights Journal

Sometimes government action implicates more than one constitutional right. For example, a prohibition on religious expression might be said to violate both the Free Speech Clause and the Free Exercise Clause, a rule regarding same-sex marriage might be said to violate both equal protection and substantive due process, an exercise of the eminent domain power might be said to violate both procedural due process and the Takings Clause, a disproportionate criminal sentence based on judge-found facts might be said to violate both the defendant’s right to trial by jury and that defendant’s right against cruel and unusual punishment ...


Doctrinal Dynamism, Borrowing, And The Relationship Between Rules And Rights, Joseph Blocher, Luke Morgan May 2020

Doctrinal Dynamism, Borrowing, And The Relationship Between Rules And Rights, Joseph Blocher, Luke Morgan

William & Mary Bill of Rights Journal

The study of “Rights Dynamism,” exemplified in Timothy Zick’s new book on the First Amendment’s relationship with the rest of the Bill of Rights, can enrich our understanding of constitutional rights. It also opens a door to another potentially fruitful arena: what we call “Doctrinal Dynamism.” Constitutional rights often interact and generate new meanings and applications by way of importing and exporting one another’s doctrinal rules, even when the rights themselves do not intersect directly in the context of a single case. Focusing on these doctrinal exchanges can illuminate the strengths and weaknesses of various rules, the ...


Symposium: Liquidating Elector Discretion, Rebecca Green Apr 2020

Symposium: Liquidating Elector Discretion, Rebecca Green

Popular Media

No abstract provided.


Effective But Limited: A Corpus Linguistic Analysis Of The Original Public Meaning Of Executive Power, Eleanor Miller, Heather Obelgoner Apr 2020

Effective But Limited: A Corpus Linguistic Analysis Of The Original Public Meaning Of Executive Power, Eleanor Miller, Heather Obelgoner

Georgia State University Law Review

This paper will engage linguistic and historical analysis in an effort to discern the original public meaning of the phrase executive power as used in Article II of the United States Constitution. In light of significant modern controversy surrounding the proper limits of executive authority, an original meaning interpretation of this critical phrase will illuminate the executive’s function as it was commonly understood at the time of constitutional ratification. Part I will engage in a linguistic analysis of the phrase executive power, drawing primarily on corpus linguistic methodology surrounding the phrase’s Founding Era usage. Part II will analyze ...


"We The Citizens?": A Corpus Linguistic Inquiry Into The Use Of "People" And "Citizens" In The Founding Era, Abigail Stout, Diana Coetzee, Ute Römer Apr 2020

"We The Citizens?": A Corpus Linguistic Inquiry Into The Use Of "People" And "Citizens" In The Founding Era, Abigail Stout, Diana Coetzee, Ute Römer

Georgia State University Law Review

The last Amendment included in the Bill of Rights, the Tenth Amendment, states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”1 Employed as a tool to invalidate statutes2 and also interpreted as a “truism,”3 ultimately the Tenth Amendment has largely been regarded as an Amendment which explicitly secures what the Constitution sets forth in its structural framework: that the United States government is a federalist system, meaning that it is one of shared powers between the national government ...


"Questions Involving National Peace And Harmony" Or "Injured Plaintiff Litigation"? The Original Meaning Of "Cases" In Article Iii Of The Constitution, Haoshan Ren, Margaret Wood, Clark D. Cunningham, Noor Abbady, Ute Römer, Heather Kuhn, Jesse Egbert Apr 2020

"Questions Involving National Peace And Harmony" Or "Injured Plaintiff Litigation"? The Original Meaning Of "Cases" In Article Iii Of The Constitution, Haoshan Ren, Margaret Wood, Clark D. Cunningham, Noor Abbady, Ute Römer, Heather Kuhn, Jesse Egbert

Georgia State University Law Review

If a federal official is deliberately violating the Constitution, is it possible no federal court has the power to halt that conduct? Federal judges have been answering “yes” for more than a century— dismissing certain kinds of lawsuits alleging unconstitutional conduct by ruling the lawsuits were not “cases” as meant in the phrase “[t]he Judicial Power shall extend to all Cases” in Article III, Section Two, of the Constitution.

For example, in July 2019, the U.S. Court of Appeals for the Fourth Circuit dismissed a lawsuit that the State of Maryland and the District of Columbia brought against ...


Using Empirical Data To Investigate The Original Meaning Of "Emolument" In The Constitution., Clark D. Cunningham, Jesse Egbert Apr 2020

Using Empirical Data To Investigate The Original Meaning Of "Emolument" In The Constitution., Clark D. Cunningham, Jesse Egbert

Georgia State University Law Review

The United States Constitution prohibits federal officials from receiving any “present, Emolument, Office or Title” from a foreign state without the consent of Congress. In interpreting the Constitution’s text, we are to be guided “by the principle that ‘[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.’" However, in trying to determine the “normal” meaning of “emolument” in the Founding Era we are confronted with a term that might as well be a foreign word from an unknown language. The word ...


Comparing Literary And Biblical Hermeneutics To Constitutional And Statutory Interpretation, Robert J. Pushaw Jr. Mar 2020

Comparing Literary And Biblical Hermeneutics To Constitutional And Statutory Interpretation, Robert J. Pushaw Jr.

Pepperdine Law Review

Interpreters determine the meaning of language. To interpret literary and biblical texts, scholars have developed detailed rules, methods, and theories of human understanding. This branch of knowledge, “hermeneutics,” features three basic approaches. First, “textualists” treat words as directly conveying their ordinary meaning to a competent reader today. Second, “contextualists” maintain that verbal meaning depends on generally shared linguistic conventions in the particular historical and cultural environment of the author—and that therefore translations or commentaries are necessary to make the writing intelligible to a modern reader. Third, “hermeneutic circle” scholars argue that texts have no objective meaning. Rather, a person ...


Symposium: The 19th Amendment At 100: From The Vote To Gender Equality: The Nineteenth Amendment: The Fourth Reconstruction Amendment?, Kimberly A. Hamlin Phd Mar 2020

Symposium: The 19th Amendment At 100: From The Vote To Gender Equality: The Nineteenth Amendment: The Fourth Reconstruction Amendment?, Kimberly A. Hamlin Phd

ConLawNOW

This essay argues that the Nineteenth Amendment can best be understood in terms of the Fifteenth Amendment and perhaps even as the fourth Reconstruction Amendment. It is now well understood, at least among historians, that the Nineteenth Amendment did not enfranchise black women in the South, nor other women of color, but the specifics of how and why that came to be the case are less well known. After the passage of woman suffrage in New York in 1917, Congressional opponents of women voting narrowed in on the Nineteenth Amendment’s relationship to the Fifteenth as the main source of ...


Confronting Memory Loss, Paul F. Rothstein, Ronald J. Coleman Feb 2020

Confronting Memory Loss, Paul F. Rothstein, Ronald J. Coleman

Georgetown Law Faculty Publications and Other Works

The Confrontation Clause of the Sixth Amendment grants “the accused” in “all criminal prosecutions” a right “to be confronted with the witnesses against him.” A particular problem occurs when there is a gap in time between the testimony that is offered, and the cross-examination of it, as where, pursuant to a hearsay exception or exemption, evidence of a current witness’s prior statement is offered and for some intervening reason her current memory is impaired. Does this fatally affect the opportunity to “confront” the witness? The Supreme Court has, to date, left unclear the extent to which a memory-impaired witness ...


Symposium: 19th Amendment At 100: "We Must Forget Every Difference And Unite In A Common Cause - Votes For Women": Lessons From The Woman Suffrage Movement (Or, Before The Notorius Rbg, There Were The Notorious Rbgs), Gwen Jordan Feb 2020

Symposium: 19th Amendment At 100: "We Must Forget Every Difference And Unite In A Common Cause - Votes For Women": Lessons From The Woman Suffrage Movement (Or, Before The Notorius Rbg, There Were The Notorious Rbgs), Gwen Jordan

ConLawNOW

The centennial of the Nineteenth Amendment induces a renewed assessment of the history of the woman’s suffrage movement and its legacy. This article focuses on the transnational activism of women professionals to secure, for all women, full social, civil, political, and legal rights. It examines the work of Rosa Goodrich Boido, a late nineteenth century doctor, and her daughter, Rosalind Goodrich Bates, an early twentieth century lawyer, as they generationally crossed national borders and fought for women’s rights and dignity in the US and around the world. Their stories document their understanding of suffrage as an incremental step ...


Free-Speech Formalism And Social Injustice, Stephen M. Feldman Jan 2020

Free-Speech Formalism And Social Injustice, Stephen M. Feldman

William & Mary Journal of Race, Gender, and Social Justice

The Roberts Court has shifted constitutional law in a formalist direction. This Essay explains the Court’s formalism and its causes and consequences in First Amendment free-expression cases. The thesis is that the current conservative justices’ reliance on formalism intertwines with their attitudes toward public and private spheres of activity. Their attitudes toward the public-private dichotomy are, in turn, shaped by their political ideologies as well as by the contemporary practices of democratic government, which have shifted significantly over American history. Formalism contains an inherent political tilt favoring those who already wield power in the private sphere. Formalism favors the ...


Balancing Religious Liberty And Anti-Discrimination Interests In The Public Employment Context: The Impact Of Masterpiece Cakeshop And American Legion, Brenda M. Bauges Jan 2020

Balancing Religious Liberty And Anti-Discrimination Interests In The Public Employment Context: The Impact Of Masterpiece Cakeshop And American Legion, Brenda M. Bauges

Concordia University School of Law, Faculty Scholarship

At the heart of national debate in recent years is the balance between religious liberty and anti-discrimination interests. The Supreme Court’s recent Free Speech and Establishment Clause decisions in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018) and American Legion v. American Humanist Association, 139 S. Ct. 2067 (2019) push the pendulum in this debate towards greater protection of religious liberties, and signal the Court’s preference for context-specific tests for how the Establishment Clause will interact with the broader range of interests protected by the Free Exercise Clause. These cases are especially significant ...


Why Robert Mueller’S Appointment As Special Counsel Was Unlawful, Gary Lawson, Steven Calabresi Nov 2019

Why Robert Mueller’S Appointment As Special Counsel Was Unlawful, Gary Lawson, Steven Calabresi

Faculty Scholarship

Since 1999, when the independent counsel provisions of the Ethics in Government Act expired, the Department of Justice (“DOJ”) has had in place regulations providing for the appointment of Special Counsels who possess “the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney.” Appointments under these regulations, such as the May 17,2017 appointment of Robert S. Mueller to investigate the Trump campaign, are patently unlawful, for three distinct reasons.

First, all federal offices must be “established by Law,” and there is no statute authorizing such an office in the DOJ. We ...


Accommodating Competition: Harmonizing National Constitutional And Antitrust Commitments, Jonathan B. Baker Oct 2019

Accommodating Competition: Harmonizing National Constitutional And Antitrust Commitments, Jonathan B. Baker

Jonathan B. Baker

This Article shows how the norm supporting governmental action to protect and foster competitive markets was harmonized with economic rights to contract and property during the 19th century, and with the development of the social safety net during the 20th century. It explains why the Constitution, as understood today, does not check the erosion of the entrenched but threatened national commitment to assuring competitive markets.


A Modest Proposal On Supreme Court Unanimity To Constitutionally Invalidate Laws, Dwight G. Duncan Oct 2019

A Modest Proposal On Supreme Court Unanimity To Constitutionally Invalidate Laws, Dwight G. Duncan

Faculty Publications

There is a problem in our constitutional history: the problem of split Supreme Court decisions invalidating democratically enacted laws. From Dred Scott[1] to Lochner[2] to Roe v. Wade[3] to Citizens United,[4] and even the recent Second Amendment decisions of Heller[5] and McDonald,[6] these patently fallible decisions on controversial political and social issues have divided the nation, politicized the Court, poisoned the Supreme Court nomination process and thwarted the political branches and democratic governance. Requiring Supreme Court unanimity to overturn legislation on constitutional grounds would therefore be morally and politically desirable. Why that is so ...


'Great Variety Of Relevant Conditions, Political, Social And Economic': The Constitutionality Of Congressional Deadlines On Amendment Proposals Under Article V, Danaya C. Wright Oct 2019

'Great Variety Of Relevant Conditions, Political, Social And Economic': The Constitutionality Of Congressional Deadlines On Amendment Proposals Under Article V, Danaya C. Wright

UF Law Faculty Publications

Within a year or two, the thirty-eighth state is likely to ratify the Equal Rights Amendment (ERA), setting up an unprecedented constitutional challenge. The ERA was proposed with a seven-year deadline in the resolving clause, establishing the mode of ratification. That was a shift from earlier precedents in which a deadline had been placed in the text of the amendment proposal itself. Article V is annoyingly silent on the issue of congressional deadlines in amendment proposals, and the Supreme Court has never addressed the issue of a deadline that could void an otherwise properly ratified amendment. The practice of placing ...


The Post-Truth First Amendment, Sarah Haan Oct 2019

The Post-Truth First Amendment, Sarah Haan

Indiana Law Journal

Post-truthism is widely viewed as a political problem. This Article explores posttruthism as a constitutional law problem, and argues that, because post-truthism offers a normative framework for regulating information, we should take it seriously as a basis for law.

In its exploration of the influence of post-truth ideas on law, the Article focuses on the compelled speech doctrine. When the State mandates disclosure, it pits the interests of unwilling speakers against the interests of listeners. In the twenty-first century, speakers who are targeted by mandatory disclosure laws are often organizational actors with informational advantages, such as corporations. Listeners who stand ...


The Law: Defending Congress’S Interests In Court: How Lawmakers And The President Bargain Over Department Of Justice Representation, Neal Devins Sep 2019

The Law: Defending Congress’S Interests In Court: How Lawmakers And The President Bargain Over Department Of Justice Representation, Neal Devins

Neal E. Devins

In understanding the willingness of government lawyers to defend the constitutionality of federal statutes, this article will explain why presidents rarely make use of their powers under the Constitution (allowing the president to refuse to defend laws he finds unconstitutional) and under federal law (placing the control of most government litigation with the attorney general). Attention will be paid both to how Department of Justice lawyers enhance their power by defending federal statutes and to how Congress, if need be, can pressure the department to bow to lawmaker preferences. In consequence, when the president refuses to defend a statute, courts ...


Where's The Politics?: Introduction To Williams, Eastland, Days, And Rabkin, Neal Devins Sep 2019

Where's The Politics?: Introduction To Williams, Eastland, Days, And Rabkin, Neal Devins

Neal E. Devins

No abstract provided.


Tom Delay: Popular Constitutionalist?, Neal Devins Sep 2019

Tom Delay: Popular Constitutionalist?, Neal Devins

Neal E. Devins

No abstract provided.


The Interactive Constitution: An Essay On Clothing Emperors And Searching For Constitutional Truth, Neal Devins Sep 2019

The Interactive Constitution: An Essay On Clothing Emperors And Searching For Constitutional Truth, Neal Devins

Neal E. Devins

No abstract provided.


The Last Word Debate: How Social And Political Forces Shape Constitutional Values, Neal Devins Sep 2019

The Last Word Debate: How Social And Political Forces Shape Constitutional Values, Neal Devins

Neal E. Devins

No abstract provided.