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Full-Text Articles in Law

To Secure The Blessings, Ronald R. Garet Jul 2010

To Secure The Blessings, Ronald R. Garet

University of Southern California Legal Studies Working Paper Series

The Constitution’s Preamble states, in part: “We the people of the United States, in order to… secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.” While the word “blessings” in this context might mean simply benefits, it might have a more specifically ethical and dispositional meaning, such as benefits for which we should be grateful. Those who favor an evangelical reading of the Constitution might further specify the ethical and dispositional meaning, so that “blessings” recalls God’s promise to Abraham and Israel and the relationship ...


Delivering The Goods: Herein Of Mead, Delegations, And Authority, Patrick Mckinley Brennan Jun 2010

Delivering The Goods: Herein Of Mead, Delegations, And Authority, Patrick Mckinley Brennan

Patrick McKinley Brennan

This paper argues, first, that the natural law position, according to which it is the function of human law and political authorities to instantiate certain individual goods and the common good of the political community, does not entail judges' having the power or authority to speak the natural law directly. It goes on to argue, second, that lawmaking power/authority must be delegated by the people or their representatives. It then argues, third, that success in making law depends not just on the exercise of delegated power/authority, but also on the exercise of care and deliberation or, in the ...


A Loss For Words: "Religion" In The First Amendment, Mason Binkley, J.D. Jan 2010

A Loss For Words: "Religion" In The First Amendment, Mason Binkley, J.D.

Mason Binkley, Esq.

No abstract provided.


Textualist Canons: Cabining Rules Or Predilective Tools, Stephen Durden Jan 2010

Textualist Canons: Cabining Rules Or Predilective Tools, Stephen Durden

Stephen Durden

Justice Scalia proclaims homage to the “dead” Constitution. Justice Brennan honors the “living” Constitution. Others believe in “a partially living and partially dead Constitution.” But, whichever moniker selected, constitutional analysis remains (to the interpreter) personal; however, personal does not necessarily mean irrational or even singular (i.e., that no one else agrees with the interpretation). Rather, personal means that no matter how narrow the interpretational method, an interpreter of the Constitution inevitably makes personal choices when using any interpretational method - choices not required by, or perhaps even inconsistent with, the chosen interpretational method. This Article uses canons of construction to ...


Partial Textualism, Stephen Durden Jan 2010

Partial Textualism, Stephen Durden

Stephen Durden

This Article seeks to demonstrate that plain meaning textualists do not apply plain meaning textualism to the entire Constitution. Instead, plain meaning textualists indulge their personal predilections and apply the doctrine of “partial textualism,” which selectively applies plain meaning textualism to only part of, rather than the entire, Constitution. Partial textualism destroys any possible fairness value to plain meaning textualism. Indeed, such an approach is entirely inconsistent with the goals of plain language textualism. Through examining the Takings Clause, this Article demonstrates that a plain meaning textualist will commonly apply plain meaning textualism to a part of the Constitution that ...


The Constitutional Canon As Argumentative Metonymy, Ian C. Bartrum Jan 2010

The Constitutional Canon As Argumentative Metonymy, Ian C. Bartrum

Ian C Bartrum

This article builds on Philip Bobbitt's Wittgensteinian insights into constitutional argument and law. I examine the way that we interact with canonical texts as we construct arguments in the forms that Bobbitt has described. I contend that these texts serve as metonyms for larger sets of associated principles and values, and that their invocation usually is not meant to point to the literal meaning of the text itself. This conception helps explain how a canonical text's meaning in constitutional argument can evolve over time, and hopefully offers the creative practitioner some insight into the kinds of arguments that ...