Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- Constitutional Law (36)
- Legal History (23)
- First Amendment (9)
- Law and Society (6)
- State and Local Government Law (6)
-
- Courts (5)
- Jurisprudence (5)
- President/Executive Department (5)
- Social and Behavioral Sciences (5)
- Civil Rights and Discrimination (4)
- Law and Politics (4)
- Property Law and Real Estate (4)
- Administrative Law (3)
- Arts and Humanities (3)
- Law and Philosophy (3)
- Legislation (3)
- Military, War, and Peace (3)
- Political Science (3)
- Public Affairs, Public Policy and Public Administration (3)
- Supreme Court of the United States (3)
- American Politics (2)
- Election Law (2)
- Environmental Law (2)
- History (2)
- Immigration Law (2)
- International Law (2)
- Judges (2)
- Jurisdiction (2)
- Land Use Law (2)
- Institution
-
- University of Richmond (8)
- Maurer School of Law: Indiana University (6)
- William & Mary Law School (6)
- University of Colorado Law School (5)
- SelectedWorks (4)
-
- St. Mary's University (4)
- Columbia Law School (3)
- Cleveland State University (2)
- Pepperdine University (2)
- Roger Williams University (2)
- Selected Works (2)
- University of Baltimore Law (2)
- University of Georgia School of Law (2)
- University of Nevada, Las Vegas -- William S. Boyd School of Law (2)
- Washington and Lee University School of Law (2)
- American University Washington College of Law (1)
- Claremont Colleges (1)
- Duquesne University (1)
- George Washington University Law School (1)
- Georgetown University Law Center (1)
- Liberty University (1)
- Loyola University Chicago, School of Law (1)
- The Catholic University of America, Columbus School of Law (1)
- The University of Akron (1)
- Touro University Jacob D. Fuchsberg Law Center (1)
- University of Maryland Francis King Carey School of Law (1)
- University of Miami Law School (1)
- University of Michigan Law School (1)
- University of New Mexico (1)
- University of Oklahoma College of Law (1)
- Publication Year
- Publication
-
- Indiana Law Journal (6)
- William & Mary Law Review (5)
- Faculty Scholarship (4)
- Law Faculty Publications (4)
- Publications (4)
-
- All Faculty Scholarship (2)
- Faculty Articles (2)
- Life of the Law School (1993- ) (2)
- Pepperdine Law Review (2)
- St. Mary's Law Journal (2)
- University of Richmond Law Review (2)
- Akron Law Review (1)
- American University Law Review (1)
- Andy G Olree (1)
- Articles (1)
- CMC Senior Theses (1)
- Catholic University Law Review (1)
- Cleveland State Law Review (1)
- David B Kopel (1)
- Donald J. Kochan (1)
- Faculty Publications & Other Works (1)
- GW Law Faculty Publications & Other Works (1)
- Georgetown Law Faculty Publications and Other Works (1)
- Georgia Law Review (1)
- Helm's School of Government Conference - American Revival: Citizenship & Virtue (1)
- Honors College Portfolios (1)
- LLM Theses and Essays (1)
- Law Faculty Articles and Essays (1)
- Mark Graber (1)
- Michigan Law Review (1)
- Publication Type
- File Type
Articles 1 - 30 of 67
Full-Text Articles in Law
The American Debate Between Toleration And Liberty Of Conscience, Zachary Federico
The American Debate Between Toleration And Liberty Of Conscience, Zachary Federico
Helm's School of Government Conference - American Revival: Citizenship & Virtue
No abstract provided.
Playing With Words: Amar’S Nationalist Constitution, Robert J. Pushaw Jr.
Playing With Words: Amar’S Nationalist Constitution, Robert J. Pushaw Jr.
Washington and Lee Law Review Online
This essay provides a balanced critique of Akhil Amar’s important book on early constitutional theory and practice. On the one hand, Amar’s work has three unique virtues. First, unlike other constitutional historians, he does not examine a particular clause or a brief time period (such as 1787‑1789), but rather analyzes the Constitution as a whole from 1760 to 1840. This holistic and longitudinal approach enables him to trace in detail the evolving constitutional views of America’s leading Founders—John Adams, Alexander Hamilton, Thomas Jefferson, James Madison, John Marshall, and George Washington—and the personal relationships among those men that helped shape those …
Partisan Gerrymandering And The Right To Privacy, Ana Deckey
Partisan Gerrymandering And The Right To Privacy, Ana Deckey
CMC Senior Theses
This paper argues that partisan gerrymanderers violate citizens’ right to privacy by using data containing sensitive information on citizens without a compelling state interest. It first details how partisan gerrymandering claims have been argued in Court in the past. Next, it discusses theories of the right to privacy, mainly exploring the tensions between James Madison’s writings on privacy and Warren and Brandeis’ famed The Right to Privacy. Then, I present originalist arguments for upholding the original meaning and principles of the right to privacy and the Fourth and Fourteenth Amendments before walking through case law related to privacy and …
The Lost History Of Delegation At The Founding, Christine Chabot
The Lost History Of Delegation At The Founding, Christine Chabot
Georgia Law Review
The new Supreme Court is poised to bring the administrative state to a grinding halt. Five Justices have endorsed Justice Gorsuch’s dissent in Gundy v. United States—an opinion that threatens to invalidate countless regulatory statutes in which Congress has delegated significant policymaking authority to the Executive Branch. Justice Gorsuch claimed that the “text and history” of the Constitution required the Court to replace a longstanding constitutional doctrine that permits broad delegations with a more restrictive one. But the supposedly originalist arguments advanced by Justice Gorsuch and like-minded scholars run counter to the understandings of delegation that prevailed in the Founding …
Whose Highest And Best? Including Economic Development And Individual Landownership In The Highest And Best Use Standard, Brigid Sawyer
Whose Highest And Best? Including Economic Development And Individual Landownership In The Highest And Best Use Standard, Brigid Sawyer
Catholic University Law Review
Real property is a finite resource. As a result, two theories of land use most frequently in tension are economic development and individual land ownership. In tracing key places in American history where these two theories conflict, it is seen that economic development is often prioritized over individual land ownership. This Comment analyzes the connections between the Founding Era philosophy on property law, Native American land takings, and eminent domain takings and proposes a new definition of the highest and best use valuation standard, one that accounts for both economic development and individual land ownership. This new standard allows both …
Julia Spokane's Portfolio, Julia Spokane
Julia Spokane's Portfolio, Julia Spokane
Honors College Portfolios
This portfolio details my work as a McAnulty College of Liberal Arts Honors College student at Duquesne University majoring in Rhetoric Communication with a Pre-Law Certificate. My trajectory as a pre-law student follows the 3/3 program: graduating in three years, achieving a Bachelor of Arts degree, then acceptance into the Duquesne University School of Law for an additional three years resulting in a Juris Doctor degree.
The Lost History Of Delegation At The Founding, Christine Chabot
The Lost History Of Delegation At The Founding, Christine Chabot
Faculty Publications & Other Works
The new Supreme Court is poised to bring the administrative state to a grinding halt. Five Justices have endorsed Justice Gorsuch's dissent in Gundy v. United States--an opinion that threatens to invalidate countless regulatory statutes in which Congress has delegated significant policymaking authority to the Executive Branch. Justice Gorsuch claimed that the “text and history” of the Constitution required the Court to replace a longstanding constitutional doctrine that permits broad delegations with a more restrictive one. But the supposedly originalist arguments advanced by Justice Gorsuch and like-minded scholars run counter to the understandings of delegation that prevailed in the Founding …
The Classic Arguments For Free Speech 1644-1927, Vincent A. Blasi
The Classic Arguments For Free Speech 1644-1927, Vincent A. Blasi
Faculty Scholarship
This chapter examines the classic arguments for freedom of speech. It traces the first comprehensive argument for freedom of speech as a limiting principle of government to John Milton’s Areopagitica, a polemic against censorship by a requirement of prior licensing in which Milton develops an argument for the pursuit of truth through exposure to false and heretical ideas rather than the passive reception of orthodoxy. Despite Milton’s belief in the advancement of understanding through free inquiry, he was far from liberal in the modern sense of that term and he did not, for instance, extend the tolerance he advocated to …
Stretching The First Amendment: Religious Freedom And Its Constitutional Limits Within The Adoption Sector, Tracy Smith
Stretching The First Amendment: Religious Freedom And Its Constitutional Limits Within The Adoption Sector, Tracy Smith
Pepperdine Law Review
The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.
What's So Great About The Declare War Clause?, Matthew C. Waxman
What's So Great About The Declare War Clause?, Matthew C. Waxman
Faculty Scholarship
I have long believed two things about constitutional war powers, which my reading of Noah Feldman’s “The Three Lives of James Madison” largely confirmed. First, James Madison was brilliant and prescient about many things, but the strategy and politics of war were not among them. Second, modern constitutional critics of an imperial presidency place too much weight on the declare war clause – and especially Madison’s statements about it. Madison, indeed, worried deeply about unchecked presidential war powers. But Feldman’s book shows that Madison did not emphasize the same risks and checks so often ascribed to him today, especially by …
Newsroom: Goldstein & Horwitz On 38 Studios Records 04-13-2017, Roger Williams University School Of Law
Newsroom: Goldstein & Horwitz On 38 Studios Records 04-13-2017, Roger Williams University School Of Law
Life of the Law School (1993- )
No abstract provided.
Newsroom: Time: Bogus On Second Amendment 09/28/2016, Arica L. Coleman, Roger Williams University School Of Law
Newsroom: Time: Bogus On Second Amendment 09/28/2016, Arica L. Coleman, Roger Williams University School Of Law
Life of the Law School (1993- )
No abstract provided.
Re-Ordering The First Amendment, Melissa Hart
James Madison And The Constitution's "Convention For Proposing Amendments", Robert G. Natelson
James Madison And The Constitution's "Convention For Proposing Amendments", Robert G. Natelson
Akron Law Review
The last of the limited-subject interstate gatherings is today the most famous. The Annapolis Convention of 1786 was to focus on “the trade and Commerce of the United States.” Its limited scope induced Madison, who served as a delegate, explicitly to distinguish it from a plenipotentiary convention. For the most part, all of these conventions—today we might call them “task forces”—remained within the scope of their calls. If there was an exception, it was the abortive assembly at Annapolis, and that exception was solely to express the “wish” and “opinion” that another convention be held to consider defects in the …
The Original Meaning Of "God": Using The Language Of The Framing Generation To Create A Coherent Establishment Clause Jurisprudence, Michael I. Meyerson
The Original Meaning Of "God": Using The Language Of The Framing Generation To Create A Coherent Establishment Clause Jurisprudence, Michael I. Meyerson
All Faculty Scholarship
The Supreme Court’s attempt to create a standard for evaluating whether the Establishment Clause is violated by religious governmental speech, such as the public display of the Ten Commandments or the Pledge of Allegiance, is a total failure. The Court’s Establishment Clause jurisprudence has been termed “convoluted,” “a muddled mess,” and “a polite lie.” Unwilling to either allow all governmental religious speech or ban it entirely, the Court is in need of a coherent standard for distinguishing the permissible from the unconstitutional. Thus far, no Justice has offered such a standard.
A careful reading of the history of the framing …
Commandeering And Constitutional Change, Jud Campbell
Commandeering And Constitutional Change, Jud Campbell
Law Faculty Publications
Coming in the midst of the Rehnquist Court’s federalism revolution, Printz v. United States held that federal commandeering of state executive officers is “fundamentally incompatible with our constitutional system of dual sovereignty.” The Printz majority’s discussion of historical evidence, however, inverted Founding-era perspectives. When Federalists such as Alexander Hamilton endorsed commandeering during the ratification debates, they were not seeking to expand federal power. Quite the opposite. The Federalists capitulated to states’ rights advocates who had recently rejected a continental impost tax because Hamilton, among others, insisted on hiring federal collectors rather than commandeering state collectors. The commandeering power, it turns …
Back To The Future, Sergio J. Campos
The Property Platform In Anglo-American Law And The Primacy Of The Property Concept, Donald J. Kochan
The Property Platform In Anglo-American Law And The Primacy Of The Property Concept, Donald J. Kochan
Donald J. Kochan
This Article proposes that the property concept, when reduced to its basic principles, is a foundational element and a useful lens for evaluating and understanding the whole of Anglo-American private law even though the discrete disciplines—property, tort, and contract—have their own separate and distinct existence. In this Article, a broad property concept is not focused just on things or on sticks related to things but instead is defined as relating to all things owned. These things may include one’s self and all the key elements associated with this broader set of things owned—including the right to exclude, ownership, dominion, authority, …
Madison 1, Bush 0: Survey Testing Mr. Madison's Hypotheses, Daniel Gordon
Madison 1, Bush 0: Survey Testing Mr. Madison's Hypotheses, Daniel Gordon
Touro Law Review
For over fifty years, James Madison warned the American colonies and the new United States of America of the dangers of linking religion with government. Madison fought in his home state of Virginia to separate church and state and continued the fight as a congressman and as president. Between 2001 and 2009, President George W. Bush overtly linked religion with government. President Bush's efforts provide the opportunity to test President Madison's hypothesis that danger arises in American society when religion and government are linked. The Gallup Organization in its public opinion testing provides the means used in this Article to …
Table Annexed To Article: Madison’S Top Twenty Words In Farrand And The Detached Memoranda,, Peter Aschenbrenner
Table Annexed To Article: Madison’S Top Twenty Words In Farrand And The Detached Memoranda,, Peter Aschenbrenner
Peter J. Aschenbrenner
Abstract. Madison’s entries in Farrand after 1817, his Detached Memoranda, and his essays in The Federalist Papers are analyzed for word frequencies.
Building A Nation From Thirteen States: The Constitutional Convention And Preemption, Edward J. Larson
Building A Nation From Thirteen States: The Constitutional Convention And Preemption, Edward J. Larson
Pepperdine Law Review
This article is adapted from a talk Professor Larson gave at Pepperdine’s symposium on federal preemption of state tort law - the problem of medical drugs and devices. Professor Larson begins with a discussion of the Constitutional Convention and James Madison’s role in the creation of the U.S. Constitution. He relates how fifteen resolutions, developed by Madison and the other Virginia delegates, became known as the Virginia Plan, and served as the foundation for the Constitution. Professor Larson continues by examining Madison’s notes of the Convention. Specifically he shares what the notes relate about the deliberations at the Convention regarding …
"Pride Ignorance And Knavery": James Madison's Formative Experiences With Religious Establishments, Andy G. Olree
"Pride Ignorance And Knavery": James Madison's Formative Experiences With Religious Establishments, Andy G. Olree
Andy G Olree
Judicial interpretations of the First Amendment’s religion clauses have purported to rely heavily on the history of the American Founding era. Today, it seems no Founder carries more weight in religion clause opinions than James Madison, a seminal figure the Supreme Court has repeatedly credited as “the leading architect of the religion clauses of the First Amendment”—most recently in January 2012, as it relied heavily on Madison’s views in deciding the Hosanna-Tabor case. But courts citing Madison have tended to focus on the short period beginning with his “Memorial and Remonstrance” in 1785 and ending with the ratification of the …
Interposition And The Heresy Of Nullification: James Madison And The Exercise Of Sovereign Constitutional Powers, Christian G. Fritz
Interposition And The Heresy Of Nullification: James Madison And The Exercise Of Sovereign Constitutional Powers, Christian G. Fritz
Faculty Scholarship
Political arguments frequently use history for justification. Invariably, however, such efforts are less about taking the past on its own terms than the desire to make symbolic historical references that resonate with modern audiences in order to achieve particular political objectives, whether liberal or conservative. American politics today provides a good example of this practice, particularly in the invocation of the doctrine of nullification and secession as legitimate constitutional options supposedly sanctioned in the thought of such Federal Framers as James Madison. This essay explains why Madison emphatically rejected the attempt by a single state to nullify national laws, while …
Stewart V. Mcintosh, 4 H. & J. 233 (1816), Rhett Donnelly
Stewart V. Mcintosh, 4 H. & J. 233 (1816), Rhett Donnelly
Student Articles and Papers
Stewart v. M’Intosh was argued during the time period of the Jay Treaty, the Quasi-War, the Haitian Revolution, and the War of 1812. The facts begin at the end of the 18th century and extend into the early 19th century. The arguments and ruling were based on trade restrictions between United States citizens and territories under French control. The plaintiffs focused their arguments on the specific language of the Congressional acts, which outlawed trade with French territories but did not directly mention the regions at issue, while the defendants looked at the implications of the acts and the …
Enlightenment Economics And The Framing Of The U.S. Constitution, Renée Lettow Lerner
Enlightenment Economics And The Framing Of The U.S. Constitution, Renée Lettow Lerner
GW Law Faculty Publications & Other Works
Some scholars have argued that the Framers of the U.S. Constitution did not have a common set of views on economics, or that the Constitution, except perhaps in isolated clauses, does not reflect any specific economic views. The principal Framers did, in fact, share a basic set of economic views, though of course they did not agree on all economic questions. Their shared economic views were common to enlightenment thinkers: promoting free trade, curtailing rent-seeking (the transfer of wealth from producers to non-producers through political power), and, in most instances, eliminating monopolies. These economic views permeate the Constitution and are …
Marbury Versus Madison: Documents And Commentary, Mark Graber, Michael Perhac
Marbury Versus Madison: Documents And Commentary, Mark Graber, Michael Perhac
Mark Graber
Marbury versus Madison combines documents and analytical essays timed for the bicentennial year (2003) of one of the most important Supreme Court cases. This timely collection will explain: the constitutional, political, philosophical background to judicial review the historical record leading to this landmark case the impact of the decision since 1803 its impact on the world stage, especially for new and emerging democratic nations. Also includes a listing of all the Supreme Court cases citing Marbury an an annotated Marbury v. Madison.
Whiskey, Soldiers, And Voting: Western Virginia Elections In The 1790s, Jud Campbell
Whiskey, Soldiers, And Voting: Western Virginia Elections In The 1790s, Jud Campbell
Law Faculty Publications
Editor's Note: Elections in eighteenth-century Virginia were conducted quite differently than current elections. In this article, the author presents revealing descriptions of early elections in Montgomery County, Virginia immediately following the birth of the United States. The behavior and motivations of the electorate, as well as the candidates, provide interesting insight regarding the social structure o/that era.
Two Understandings Of Supremacy: An Essay, Vincent J. Samar
Two Understandings Of Supremacy: An Essay, Vincent J. Samar
Richmond Journal of Global Law & Business
Does the supremacy provision of Article VI of the U.S. Constitution undermine the legal force of international law in the United States? Recently, there has been some debate on this issue arising out of the claim that if the U.S. Constitution is “the supreme law of the land,” and that only constitutional officers of the United States, in keeping with their responsibilities to uphold the Constitution, can decide what is international law for the U.S. Such debates are not new to the history of the world. For much of world history, national rulers have claimed that their legal authority derives …
Book Review: "The Lost History Of The Ninth Amendment", Thomas B. Mcaffee
Book Review: "The Lost History Of The Ninth Amendment", Thomas B. Mcaffee
Scholarly Works
No abstract provided.
Placing Your Faith In The Constitution, Harold H. Bruff
Placing Your Faith In The Constitution, Harold H. Bruff
Publications
No abstract provided.