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Ten Questions On Gay Rights And Freedom Of Religion, Wilson Huhn Jan 2009

Ten Questions On Gay Rights And Freedom Of Religion, Wilson Huhn

Akron Law Publications

In my opinion most of the legal and social problems that arise under the Constitution stem from the belief, held by some people, that they are better than other people. They do not hate anyone. They simply believe that they are superior and that the law ought to treat them better than the other group. This is true of whites who think they are superior to blacks, men who think they are superior to women, and heterosexuals who think they are superior to homosexuals.

People have often justified these types of beliefs by appeal to religion and have attempted to ...


39th Congress (1865-1867) And The 14th Amendment: Some Preliminary Perspectives, Richard Aynes Jan 2009

39th Congress (1865-1867) And The 14th Amendment: Some Preliminary Perspectives, Richard Aynes

Akron Law Publications

The 39th Congress (1865-1867) was one of the important Congresses in our history. It passed more legislation than any other Congress up to that time.

This preliminary examination of the 39th Congress begins with a look it composition. One of the critical factors was that while the 38th Congress contained a majority of unionists, the 39th Congress contained a super-majority which meant not only that they could override a Presidential veto, but also that they did not need to take the Democratic opposition seriously. This article also identifies the leadership of the 39th Congress. The 38th Congress was composed of ...


Infinite Hope-- Introduction To The Symposium: The 140th Anniversary Of The Fourteenth Amendment, Elizabeth Reilly Jan 2009

Infinite Hope-- Introduction To The Symposium: The 140th Anniversary Of The Fourteenth Amendment, Elizabeth Reilly

Akron Law Publications

The Fourteenth Amendment embodies hope. This article introduces the Symposium celebrating the 140th anniversary of its ratification, held at the University of Akron. The symposium was a fruitful occasion to reflect upon the meaning of the Amendment to its Framers in Congress and as it was initially interpreted by the United States Supreme Court and the public, and to examine the lasting impacts of both conceptions. Our participants especially examined three of the Supreme Court's earliest forays into applying the Fourteenth Amendment: The Slaughter House Cases, Bradwell v. Illinois, and Cruikshank v. United States. Those forays succeeded in cramping ...


The Union As It Wasn't And The Constitution As It Isn't: Section Five And Altering The Balance Of Power, Elizabeth Reilly Jan 2009

The Union As It Wasn't And The Constitution As It Isn't: Section Five And Altering The Balance Of Power, Elizabeth Reilly

Akron Law Publications

The original prototype of Section One of the Fourteenth Amendment, as introduced by its primary Framer, John Bingham of Ohio, read: The Congress shall have the power to make all laws which shall be necessary and proper to secure to the citizens of each State all privileges and immunities of citizens in the several States, and to all persons in the several States equal protection in the rights of life, liberty, and property.

Bingham went on to note expressly that “save the words conferring the express grant of power to the Congress,” the principles of the rights were already in ...


Bush V. Boumediene: The Court Is Back, Jay Dratler Jun 2008

Bush V. Boumediene: The Court Is Back, Jay Dratler

Akron Law Publications

This short article is a follow-up to a piece I wrote two years ago on Hamdan v. Rumsfeld, SSRN No. 913822. While applauding the result in Hamdan, I critiqued the Supreme Court for missing a “teachable moment” and obscuring the great issues at stake in prolixity and mind-numbing technical detail.

In this article, I applaud the Boumediene v. Bush Court not only for its result—that the Constitution’s Suspension Clause can require habeas corpus for aliens held abroad under certain circumstances—but for its reasoning and style as well. This time, the majority of five did not miss its ...


Waterboarding Is Illegal, Wilson R. Huhn May 2008

Waterboarding Is Illegal, Wilson R. Huhn

Akron Law Publications

In his 2007 confirmation hearing before the Senate Judiciary Committee considering his nomination to be Attorney General of the United States, Judge Michael Mukasey refused to address the legality of waterboarding. In my opinion there is no reasonable dispute about this matter. The laws of the United States make waterboarding unlawful in no uncertain terms.


Congress Has The Power To Enforce The Bill Of Rights Against The Federal Government: Therefore Fisa Is Constitutional And The President's Terrorist Surveillance Program Is Illegal, Wilson R. Huhn Jan 2007

Congress Has The Power To Enforce The Bill Of Rights Against The Federal Government: Therefore Fisa Is Constitutional And The President's Terrorist Surveillance Program Is Illegal, Wilson R. Huhn

Akron Law Publications

The principal point of this Article is that Congress has plenary authority to enforce the Bill of Rights against the federal government. Although this precept is a fundamental one, neither the Supreme Court nor legal scholars have articulated this point in clear, simple, and direct terms. The Supreme Court does not have a monopoly on the Bill of Rights. Congress, too, has constitutional authority to interpret our rights and to enforce or enlarge them as against the actions of the federal government.

Congress exercised its power to protect the constitutional rights of American citizens when it enacted the Foreign Intelligence ...


Unintended Consequences Of The Fourteenth Amendment And What They Tell Us About Its Interpretation, Richard L. Aynes Jan 2006

Unintended Consequences Of The Fourteenth Amendment And What They Tell Us About Its Interpretation, Richard L. Aynes

Akron Law Publications

The Fourteenth Amendment has been compared to “second American Constitution.” Indeed, it is said that more litigation is based upon the Fourteenth Amendment or its implementing statutes than any other provision of the Constitution. As one would imagine for such an important charter of government, there is a substantial—and some might say overwhelming—body of scholarship on the “intent,” “meaning,” and “understanding” of the Fourteenth Amendment.

Much of the literature, understandably, seeks to find out what the framers of the amendment or the ratifiers of the amendment “intended.” What did they want to accomplish by adopting this amendment? This ...


Ohio Issue 1 Is Unconstitutional, Wilson R. Huhn Jan 2005

Ohio Issue 1 Is Unconstitutional, Wilson R. Huhn

Akron Law Publications

This article discusses the constitutionality of Ohio Issue 1, an amendment to the state constitution that was adopted in a referendum by the people of the State of Ohio in November, 2004. The article consists of two parts. Part I sets forth arguments in support of the proposition that Ohio Issue 1 is unconstitutional. Part II sets forth arguments that have been or may be raised in support of Ohio Issue 1, and responds to each of those arguments.


Assessing The Constitutionality Of Laws That Are Both Content Based And Content Neutral, Wilson R. Huhn Jan 2004

Assessing The Constitutionality Of Laws That Are Both Content Based And Content Neutral, Wilson R. Huhn

Akron Law Publications

Such a multi-faceted analysis cannot be conflated into two dimensions. Whatever the allure of absolute doctrines, it is just too simple to declare expression "protected" or "unprotected" or to proclaim a regulation "content-based" or "content-neutral." John Paul Stevens (1992)

American legal doctrine evolved from a formalistic categorical approach that dominated legal thinking during the nineteenth century to a realistic balancing approach that developed over the course of the twentieth century. A similar process is now occurring in the constitutional doctrine governing freedom of expression-a process that may culminate in the adoption of what United States Supreme Court Justice John Paul ...


The Continuing Importance Of Congressman John A. Bingham And The Fourteenth Amendment, Richard L. Aynes Jan 2003

The Continuing Importance Of Congressman John A. Bingham And The Fourteenth Amendment, Richard L. Aynes

Akron Law Publications

Lead article in a symposium issue.

In the now-famous 1830s chronicle of a visit to America, Alexis de Tocqueville wrote that in America every political issue is ultimately a legal issue in the courts. For Americans who lived through the antislavery and abolitionist era as well as the crisis of the war of 1861-1865, the military victory of the Union forces on the field of battle still left open large political issues. These issues were attempted to be resolved through the political process that produced a legal solution: a constitutional amendment that we currently identify as the Fourteenth Amendment. The ...


Framers' Intent And Military Power: Has Supreme Court Deference To The Military Gone Too Far?, Kalyani Robbins Jan 1999

Framers' Intent And Military Power: Has Supreme Court Deference To The Military Gone Too Far?, Kalyani Robbins

Akron Law Publications

One of the sources of the Court's inability to conduct proper constitutional analysis in military cases is its lack of access to complete and unbiased information upon which to base that analysis. In Part III, I will make an effort to suggest methods for addressing this problem alternative to simply letting the military use its special knowledge as a source of power over the Court. Part IV will demonstrate a modern example of where the problem of excessive deference can lead, and present the Court with a suggestion to use this as a context for change. Finally, the Article ...


Charles Fairman, Felix Frankfurter, And The Fourteenth Amendment, Richard L. Aynes Jan 1995

Charles Fairman, Felix Frankfurter, And The Fourteenth Amendment, Richard L. Aynes

Akron Law Publications

The scope of the Fourteenth Amendment determines, in large measure, the allocation of responsibility and power between the states and the government of the United States. It has been characterized as “the most significant [[[Amendment] in our history” and a “second American Constitution.” It is therefore not surprising that some of the most important disputes in the United States Supreme Court have been over the meaning of the Fourteenth Amendment and that the disputes have involved some of the most important legal thinkers of our times.

In the twentieth century, one of the most familiar articulations of differing views occurred ...


Constricting The Law Of Freedom: Justice Miller, The Fourteenth Amendment, And The Slaughter-House Cases, Richard L. Aynes Jan 1994

Constricting The Law Of Freedom: Justice Miller, The Fourteenth Amendment, And The Slaughter-House Cases, Richard L. Aynes

Akron Law Publications

The Slaughter-House Cases are simultaneously unremarkable and extraordinary. They are unremarkable because the matter at issue -- whether butchers can be required to ply their trade at a central, state-franchised facility -- has long since ceased to be a matter of concern. They are extraordinary because in spite of the fact that three of the Court's significant legal conclusions have been rejected and “everyone” agrees the Court incorrectly interpreted the Privileges or Immunities Clause, the conclusion that the Privileges or Immunities Clause of the Fourteenth Amendment had no meaningful place in our constitutional scheme continues to live on. Even those who ...