Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Legal History

Constitutional Law

Institution
Publication Year
Publication
Publication Type
File Type

Articles 1 - 30 of 300

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 Declaration Of Independence And Constitutional Interpretation, Alexander Tsesis Jun 2019

The Declaration Of Independence And Constitutional Interpretation, Alexander Tsesis

Alexander Tsesis

This Article argues that the Reconstruction Amendments incorporated the human dignity values of the Declaration of Independence. The original Constitution contained clauses, which protected the institution of slavery, that were irreconcilable with the normative commitments the nation had undertaken at independence. The Thirteenth, Fourteenth, and Fifteenth Amendments set the country aright by formally incorporating the Declaration of Independence's principles for representative governance into the Constitution.

The Declaration of Independence provides valuable insights into matters of human dignity, privacy, and self-government. Its statements about human rights, equality, and popular sovereignty establish a foundational rule of interpretation. While the Supreme Court ...


Originalism And Second-Order Ipse Dixit Reasoning In Chisholm V. Georgia, D. A. Jeremy Telman Dec 2018

Originalism And Second-Order Ipse Dixit Reasoning In Chisholm V. Georgia, D. A. Jeremy Telman

D. A. Jeremy Telman


This Article presents a new perspective on the Supreme Court’s constitutional jurisprudence during the Early Republic.  It focuses on what I am calling second-order ipse dixit reasoning, which occurs when Justices have to decide between two incommensurable interpretive modalities.  If first-order ipse dixit is unreasoned decision-making, second-order ipse dixit involves an unreasoned choice between or among two or more equally valid interpretive options.  The early Court often had recourse to second-order ipse dixit because methodological eclecticism characterized its constitutional jurisprudence, and the early Court established no fixed hierarchy among interpretive modalities.
Chisholm, the pre-Marshall Court’s most important constitutional ...


Originalism As Fable, D. A. Jeremy Telman Dec 2018

Originalism As Fable, D. A. Jeremy Telman

D. A. Jeremy Telman


Eric Segall’s Originalism as Faith provides both a history of the originalist movement in constitutional interpretation and a critique of that movement from the perspective of legal realism.This Review Essay summarizes Segall’s main argument: as originalism has abandoned deference to the political branches, it has become indistinguishable from its nemesis, living constitutionalism. Emptied of substance, originalism becomes nothing more than an expression of faith. Segall makes his argument very convincingly, evidencing both his knowledge of originalism, in all its variants and his mastery of constitutional doctrine.
This Essay offers two ways in which Segall’s exemplary work ...


Theorizing American Freedom (Review Essay), Anthony O'Rourke Apr 2018

Theorizing American Freedom (Review Essay), Anthony O'Rourke

Anthony O'Rourke

This is a review essay of The Two Faces of American Freedom, by Aziz Rana. The book presents a new and provocative account of the relationship between ideas of freedom and the constitutional structure of American power. Through the nineteenth century, Rana argues, America’s constitutional structure was shaped by a racially exclusionary, yet economically robust, concept that he calls “settler freedom.” Drawing on the burgeoning interdisciplinary field of settler colonial studies, as well as on the vast historical literature on civic republicanism, Rana contends that the concept of settler freedom necessitated a constitutional framework that enabled rapid territorial expansion ...


Being Seen Like A State: How Americans (And Britons) Built The Constitutional Infrastructure Of A Developing Nation, Daniel J. Hulsebosch Mar 2018

Being Seen Like A State: How Americans (And Britons) Built The Constitutional Infrastructure Of A Developing Nation, Daniel J. Hulsebosch

William & Mary Law Review

This Article develops the argument that the Federal Constitution of 1787 was conceptualized, drafted, and put into operation not only for American citizens but also for foreign audiences. In a world without supranational governing institutions, a constitution—at least, the Federal Constitution—might serve to promote peaceable international relations based on reciprocal trade and open credit. That at least was the Enlightenment-inflected hope.

Did it work? If early Americans engaged in constitution-making in large part to demonstrate their capacity for self-government, selfdiscipline, and commercial openness to foreign audiences, did anyone notice? Or was it all, regardless of diplomatic purposes and ...


It’S All Your Fault!: Examining The Defendant’S Use Of Ineffective Assistance Of Counsel As A Means Of Getting A “Second Bite At The Apple.”, Prentice L. White Jan 2018

It’S All Your Fault!: Examining The Defendant’S Use Of Ineffective Assistance Of Counsel As A Means Of Getting A “Second Bite At The Apple.”, Prentice L. White

Dickinson Law Review

The United States Constitution provides individuals convicted of a crime with “a second bite at the apple.” The Sixth Amendment provides an avenue to appeal one’s conviction based on the claim of “ineffective assistance of counsel.” What were the Framers’ true intentions in using the phrase “effective assistance of counsel”? How does the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996 affect habeas corpus appeals? This article answers these questions through the eyes of Thomas—a fictional character who is appealing his murder conviction.

This article first looks at the history surrounding effective assistance of counsel and discusses ...


The Genius Of Hamilton And The Birth Of The Modern Theory Of The Judiciary, William M. Treanor Jan 2017

The Genius Of Hamilton And The Birth Of The Modern Theory Of The Judiciary, William M. Treanor

Georgetown Law Faculty Publications and Other Works

In late May 1788, with the essays of the Federalist on the Congress (Article I) and the Executive (Article II) completed, Alexander Hamilton turned, finally, to Article III and the judiciary. The Federalist’s essays 78 to 83 – the essays on the judiciary - had limited effect on ratification. No newspaper outside New York reprinted them, and they appeared very late in the ratification process – after eight states had ratified. But, if these essays had little immediate impact – essentially limited to the ratification debates in New York and, perhaps, Virginia – they were a stunning intellectual achievement. Modern scholars have made Madison ...


Is Miranda Good News Or Bad News For The Police: The Usefulness Of Empirical Evidence, Meghan J. Ryan Jan 2017

Is Miranda Good News Or Bad News For The Police: The Usefulness Of Empirical Evidence, Meghan J. Ryan

Faculty Scholarship

The U.S. Supreme Court’s landmark case of Miranda v. Arizona created a culture in which police officers regularly warn arrestees that they have a right to remain silent, that anything they say can and will be used against them in a court of law, that they have the right to an attorney, and that if they cannot afford one, an attorney will be appointed to them. These Miranda warnings have a number of possible effects. The warnings are meant to inform suspects about negative consequences associated with speaking to the police without the assistance of counsel. In this ...


James Wilson And The Moral Foundations Of Popular Sovereignty, Ian C. Bartrum Apr 2016

James Wilson And The Moral Foundations Of Popular Sovereignty, Ian C. Bartrum

Ian C Bartrum

This paper explores the moral philosophy underlying the constitutional doctrine of popular sovereignty. In particular, it focuses on the Scottish sentimentalism that informed James Wilson’s understanding of that doctrine. Wilson, a transplanted Scotsman, was perhaps the nation’s preeminent lawyer in the middle 1780s. He was one of the most important delegates to the Constitutional Convention, one of the nation’s first law professors, and served as Associate Justice on the first Supreme Court. In these capacities, he developed the most sophisticated and coherent account of popular sovereignty among the founding generation. My initial effort is to enrich our ...


Choice At Work: Young V. United Parcel Service, Pregnancy Discrimination, And Reproductive Liberty, Mary Ziegler Jan 2016

Choice At Work: Young V. United Parcel Service, Pregnancy Discrimination, And Reproductive Liberty, Mary Ziegler

Scholarly Publications

In deciding Young v. United Parcel Service, the Supreme Court has intervened in ongoing struggles about when and whether the Pregnancy Discrimination Act of 1978 (PDA) requires the accommodation of pregnant workers. Drawing on original archival research, this Article historicizes Young, arguing that the PDA embodied a limited principle of what the Article calls meaningful reproductive choice. Feminist litigators first forged such an idea in the early 1970s, arguing that heightened judicial scrutiny should apply whenever state actors placed special burdens on women who chose childbirth or abortion.

A line of Supreme Court decisions completely rejected this understanding of reproductive ...


The Declaration Of Independence And Constitutional Interpretation, Alexander Tsesis Jan 2016

The Declaration Of Independence And Constitutional Interpretation, Alexander Tsesis

Faculty Publications & Other Works

This Article argues that the Reconstruction Amendments incorporated the human dignity values of the Declaration of Independence. The original Constitution contained clauses, which protected the institution of slavery, that were irreconcilable with the normative commitments the nation had undertaken at independence. The Thirteenth, Fourteenth, and Fifteenth Amendments set the country aright by formally incorporating the Declaration of Independence's principles for representative governance into the Constitution.

The Declaration of Independence provides valuable insights into matters of human dignity, privacy, and self-government. Its statements about human rights, equality, and popular sovereignty establish a foundational rule of interpretation. While the Supreme Court ...


The Early Years Of First Amendment Lochnerism, Jeremy K. Kessler Jan 2016

The Early Years Of First Amendment Lochnerism, Jeremy K. Kessler

Faculty Scholarship

From Citizens United to Hobby Lobby, civil libertarian challenges to the regulation of economic activity are increasingly prevalent. Critics of this trend invoke the specter of Lochner v. New York. They suggest that the First Amendment, the Religious Freedom Restoration Act, and other legislative “conscience clauses” are being used to resurrect the economically libertarian substantive due process jurisprudence of the early twentieth century. Yet the worry that aggressive judicial enforcement of the First Amendment might erode democratic regulation of the economy and enhance the economic power of private actors has a long history. As this Article demonstrates, anxieties about such ...


The Early Years Of First Amendment Lochnerism, Jeremy K. Kessler Jan 2016

The Early Years Of First Amendment Lochnerism, Jeremy K. Kessler

Faculty Scholarship

From Citizens United to Hobby Lobby, civil libertarian challenges to the regulation of economic activity are increasingly prevalent. Critics of this trend invoke the specter of Lochner v. New York. They suggest that the First Amendment, the Religious Freedom Restoration Act, and other legislative "conscience clauses" are being used to resurrect the economically libertarian substantive due process jurisprudence of the early twentieth century. Yet the worry that aggressive judicial enforcement of the First Amendment might erode democratic regulation of the economy and enhance the economic power of private actors has a long history. As this Article demonstrates, anxieties about such ...


Book Review: The Once And Future King: The Rise Of Crown Government In America, Ronald D. Rotunda Oct 2015

Book Review: The Once And Future King: The Rise Of Crown Government In America, Ronald D. Rotunda

Ronald D. Rotunda

If you want to understand your own language, learn a foreign tongue. Similarly, if you want to understand the American system of government, learn what our intellectual kin—Great Britain and Canada—have done. As Professor F.H. Buckley notes, “He who knows only his own country knows little enough of that.” He is one of the few people who has thoroughly mastered the legal structure and history of all three countries.


Ex Post Modernism: How The First Amendment Framed Nonrepresentational Art, Sonya G. Bonneau Aug 2015

Ex Post Modernism: How The First Amendment Framed Nonrepresentational Art, Sonya G. Bonneau

Sonya G Bonneau

Nonrepresentational art repeatedly surfaces in legal discourse as an example of highly valued First Amendment speech. It is also systematically described in constitutionally valueless terms: nonlinguistic, noncognitive, and apolitical. Why does law talk about nonrepresentational art at all, much less treat it as a constitutional precept? What are the implications for conceptualizing artistic expression as free speech?

This article contends that the source of nonrepresentational art’s presumptive First Amendment value is the same source of its utter lack thereof: modernism. Specifically, a symbolic alliance between abstraction and freedom of expression was forged in the mid-twentieth century, informed by social ...


The Emergence Of Classical American Patent Law, Herbert Hovenkamp Aug 2015

The Emergence Of Classical American Patent Law, Herbert Hovenkamp

Herbert Hovenkamp

The Emergence of Classical Patent Law

Abstract

One enduring historical debate concerns whether the American Constitution was intended to be "classical" -- referring to a theory of statecraft that maximizes the role of private markets and minimizes the role of government in economic affairs. The most central and powerful proposition of classical constitutionalism is that the government's role in economic development should be minimal. First, private rights in property and contract exist prior to any community needs for development. Second, if a particular project is worthwhile the market itself will make it occur. Third, when the government attempts to induce ...


Hegelian Dialectical Analysis Of United States Election Laws, Charles E. A. Lincoln Iv Aug 2015

Hegelian Dialectical Analysis Of United States Election Laws, Charles E. A. Lincoln Iv

Charles E. A. Lincoln IV

This Article uses the dialectical ideas of German philosopher Georg Wilhelm Friedrich Hegel (1770-1833) in application to the progression of United States voting laws since the founding. This analysis can be used to interpret past progression of voting rights in the US as well as a provoking way to predict the future trends in US voting rights. First, Hegel’s dialectical method is established as a major premise. Second, the general accepted history of United States voting laws from the 1770s to the current day is laid out as a minor premise. Third, the major premise of Hegel’s dialectical ...


The High Price Of Poverty: A Study Of How The Majority Of Current Court System Procedures For Collecting Court Costs And Fees, As Well As Fines, Have Failed To Adhere To Established Precedent And The Constitutional Guarantees They Advocate., Trevor J. Calligan Jul 2015

The High Price Of Poverty: A Study Of How The Majority Of Current Court System Procedures For Collecting Court Costs And Fees, As Well As Fines, Have Failed To Adhere To Established Precedent And The Constitutional Guarantees They Advocate., Trevor J. Calligan

Trevor J Calligan

No abstract provided.


Beyond The Written Constitution: A Short Analysis Of Warren Court, Thiago Luis Santos Sombra Jul 2015

Beyond The Written Constitution: A Short Analysis Of Warren Court, Thiago Luis Santos Sombra

Thiago Luís Santos Sombra

This essay propose an analysis about how Warren Court became one of the most particular in American History by confronting Jim Crow law, especially by applying the Bill of Rights. In this essay, we propose an analysis of how complex the unwritten Constitution is. Cases like Brown vs. Board of Education will be analyzed from a different point of view to understand the methods of the Court.


Before There Were Mouseholes: Resurrecting The Non-Delegation Doctrine, Joel Hood May 2015

Before There Were Mouseholes: Resurrecting The Non-Delegation Doctrine, Joel Hood

Joel Hood

Most people are unaware that James Madison original drafted 17 amendments for the Bill of Rights. Even fewer know that the 16th was an express non-delegation amendment meant to protect the American people:

The powers delegated by the Constitution to the government of the United States, shall be exercised as therein appropriated, so that the Legislative shall never exercise the powers vested in the Executive or Judicial; not the Executive the powers vested in the Legislative or Judicial; nor the Judicial the powers vested in the Legislative or Executive.

There are now over five-hundred federal agencies and departments. Some are ...


Free Exercise For Whom? -- Could The Religious Liberty Principle That Catholics Established In Perez V. Sharp Also Protect Same-Sex Couples' Right To Marry?, Eric Alan Isaacson May 2015

Free Exercise For Whom? -- Could The Religious Liberty Principle That Catholics Established In Perez V. Sharp Also Protect Same-Sex Couples' Right To Marry?, Eric Alan Isaacson

Eric Alan Isaacson

Recent discussions about the threat that same-sex couples hypothetically pose to the religious freedom of Americans whose religions traditions frown upon same-sex unions have largely overlooked the possibility that same-sex couples might have their own religious-liberty interest in being able to marry. The General Synod of the United Church of Christ brought the issue to the fore with an April 2014 lawsuit challenging North Carolina laws barring same-sex marriages. Authored by a lawyer who represented the California Council of Churches and other religions organizations as amici curiae in recent marriage-equality litigation, this article argues that although marriage is a secular ...


From Reynolds To Lawrence To Brown V. Buhman: Antipolygamy Statutes Sliding On The Slippery Slope Of Same-Sex Marriage, Stephen L. Baskind Apr 2015

From Reynolds To Lawrence To Brown V. Buhman: Antipolygamy Statutes Sliding On The Slippery Slope Of Same-Sex Marriage, Stephen L. Baskind

Stephen L Baskind

In 2003 in Lawrence v. Texas (striking Texas’ sodomy law), Justice Scalia predicted in his dissent the end of all morals legislation. If Justice Scalia is correct most, if not all, morals-based legislation may fall. For example, in recent years state laws prohibiting same-sex marriage have fallen to constitutional challenges. Ten years after Lawrence in 2013, a Utah Federal District Court in Brown v. Buhman, though feeling constrained by the 1878 Reynolds case (which rejected a First Amendment challenge to an antipolygamy law), nevertheless at the request of a polygamous family concluded that the cohabitation prong of Utah’s anti-bigamy ...


Justice-As-Fairness As Judicial Guiding Principle: Remembering John Rawls And The Warren Court, Michael Anthony Lawrence Mar 2015

Justice-As-Fairness As Judicial Guiding Principle: Remembering John Rawls And The Warren Court, Michael Anthony Lawrence

Michael Anthony Lawrence

This Article looks back to the United States Supreme Court’s jurisprudence during the years 1953-1969 when Earl Warren served as Chief Justice, a period marked by numerous landmark rulings in the areas of racial justice, criminal procedure, reproductive autonomy, First Amendment freedom of speech, association and religion, voting rights, and more. The Article further discusses the constitutional bases for the Warren Court’s decisions, principally the Fourteenth Amendment equal protection and due process clauses.

The Article explains that the Warren Court’s equity-based jurisprudence closely resembles, at its root, the “justice-as-fairness” approach promoted in John Rawls’s monumental 1971 ...


What The Constitution Means By “Duties, Imposts, And Excises”—And “Taxes” (Direct Or Otherwise), Robert G. Natelson Mar 2015

What The Constitution Means By “Duties, Imposts, And Excises”—And “Taxes” (Direct Or Otherwise), Robert G. Natelson

Robert G. Natelson

This Article recreates the original definitions of the U.S. Constitution’s terms “tax,” “direct tax,” “duty,” “impost,” “excise,” and “tonnage.” It draws on a greater range of Founding-Era sources than accessed heretofore, including eighteenth-century treatises, tax statutes, and literary source, and it corrects several errors made by courts and previous commentators. It concludes that the distinction between direct and indirect taxes was widely understood during the Founding Era, and that the term “direct tax” was more expansive than commonly realized. The Article identifies the reasons the Constitution required that direct taxes be apportioned among the states by population. It ...


Does It Matter How One Opposes Memory Bans? A Commentary On Liberte Pour L'Histoire, Robert Kahn Feb 2015

Does It Matter How One Opposes Memory Bans? A Commentary On Liberte Pour L'Histoire, Robert Kahn

Robert Kahn

This paper examines Liberté pour l'Histoire, a group of French historians who led the charge against that nation’s memory laws, in the process raising unique arguments not found elsewhere in the debate over hate speech regulation. Some of these arguments – such as a focus on how the constitutional structure of the Fifth Republic encouraged memory laws – advance our understanding of the connection between hate speech bans and political institutions. Other arguments, however, are more problematic. In particular, Liberté historians struggle to distinguish the Holocaust (which is illegal to deny) from the Armenian Genocide (which is not). The Liberté ...


The Classical Constitution, Herbert Hovenkamp Feb 2015

The Classical Constitution, Herbert Hovenkamp

Herbert Hovenkamp

Conservative and libertarian constitutional writers have often pined for return to a "classical" understanding of American federal and state Constitutions. "Classical" does not necessarily mean "originalist" or "interpretivist." Some classical views, such as the attempt to revitalize Lochner-style economic due process, find little support in the text of the federal Constitution or any of the contemporary state constitutions. Rather, constitutional meaning is thought to lie in a background link between constitution formation and classical statecraft. The core theory rests on the assumption of a social contract to which everyone in some initial position agreed. Like any contract, it would ...


Nothing To Do With Personhood: Corporate Constitutional Rights And The Principle Of Confiscation, Paul Kens Dr. Feb 2015

Nothing To Do With Personhood: Corporate Constitutional Rights And The Principle Of Confiscation, Paul Kens Dr.

Paul Kens Dr.

In its 2010 decision Citizens United v. Federal Election Commission the Supreme Court overruled a federal statute that limited a corporation’s ability to pay for political advertising out of its general treasury funds. Those limits, it ruled, violated the corporation’s right to freedom of speech. The case has since become notorious for the widely held belief that, in doing so, the Court declared that corporations are “persons,” possessing the same constitutional rights as flesh and blood human beings. Four years later the Court seemed to expand on this conclusion when it ruled in Burwell v. Hobby Lobby that ...


Dogging Darwin: America's Revolt Against The Teaching Of Evolution, J. Herbie Difonzo, Ruth C. Stern Jan 2015

Dogging Darwin: America's Revolt Against The Teaching Of Evolution, J. Herbie Difonzo, Ruth C. Stern

J. Herbie DiFonzo

Abstract

More than four in ten Americans believe that God created humans in their present form 10,000 years ago. American antagonism toward the teaching of evolution is deeply rooted in fundamentalist tradition and an aversion to intellectualism. These forces have combined to demonize Charles Darwin to such an extent that sectarian-based legal and political attacks on evolution show no signs of abating. Darwin’s day in court began in 1925 with the famous Scopes Monkey Trial. It continued into the 21st century with Kitzmiller v. Dover Area Schools. Throughout, the core creationist agenda has remained the same, although ...


The History Of Firearm Magazines And Magazine Prohibitions, David B. Kopel Jan 2015

The History Of Firearm Magazines And Magazine Prohibitions, David B. Kopel

David B Kopel

In recent years, the prohibition of firearms magazines has become an important topic of law and policy debate. This Article details the history of magazines and of magazine prohibition.

Because ten rounds is an oft-proposed figure for magazine bans, Part I of the Article provides the story of such magazines from the earliest sixteenth century onward. Although some people think that multi-shot guns did not appear until Samuel Colt invented the revolver in the 1830s, multi-shot guns predate Col. Colt by over two centuries.

Especially because the Supreme Court’s decision in District of Columbia v. Heller considers whether arms ...