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Full-Text Articles in Law
The Vitality Of The American Sovereign, Todd E. Pettys
The Vitality Of The American Sovereign, Todd E. Pettys
Todd E. Pettys
In this book review, I examine Christian Fritz's "American Sovereigns: The People and America's Constitutional Tradition Before the Civil War." I dispute Fritz's claim that Americans today have essentially ceded their sovereign prerogatives to government officials. Contrary to Fritz's suggestion, ordinary Americans do still sometimes intervene directly in day-to-day governmental affairs in ways that are unauthorized by their elected leaders, and they do alter their constitutional landscape by means other than those formally authorized by Article V. Americans have determined that their long-term interests are often best served by manifesting their sovereign desires through extended interactions with government officials and …
Counsel And Confrontation, Todd E. Pettys
Counsel And Confrontation, Todd E. Pettys
Todd E. Pettys
Responding to the Court’s recent reworking of its confrontation jurisprudence, I argue that, under the Anglo-American common-law principles that the Confrontation Clause now incorporates, defendants are not entitled to an attorney’s assistance when interrogating witnesses prior to trial. Although the Assistance of Counsel Clause and the Due Process Clauses will pick up the slack in many cases, I contend that there are other instances in which the Constitution now leaves unrepresented defendants responsible for cross-examining witnesses on their own. I suggest that legislative reform may be necessary to ameliorate the new constitutional landscape’s deficiencies.
The Immoral Application Of Exclusionary Rules, Todd E. Pettys
The Immoral Application Of Exclusionary Rules, Todd E. Pettys
Todd E. Pettys
In both civil and criminal cases today, judges routinely withhold relevant evidence from jurors, fearing that jurors would use it in an irrational or legally impermissible manner. Forcing jurors to take responsibility for a verdict based upon a government-screened pool of evidence stands in sharp contrast to the way we ordinarily think about government efforts to withhold potentially useful information from citizens faced with important decisions. The First Amendment’s guarantee of the freedom of speech, for example, reflects a moral judgment that the government offends its citizens’ deliberative autonomy when it restricts speech based upon fears about what that speech …
Our Anticompetitive Patriotism, Todd E. Pettys
Our Anticompetitive Patriotism, Todd E. Pettys
Todd E. Pettys
In this article, I contend that the nation’s seemingly exclusive claim to citizens’ patriotism significantly shields the federal government from the competitive forces that the Framers believed would restrain Congress’s and the President’s ability to govern in objectionable ways. I argue that, because America is a nation-state built upon certain core convictions about public life, there are strong connections in this country between the entity about which people feel patriotic and the sovereign that people would like to govern many—perhaps even most—of their important public affairs. I argue that American patriotism was constructed in a manner that led nineteenth- and …