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Jurisprudence Commons

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Constitutional Law

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Constitution

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Full-Text Articles in Jurisprudence

Constitutional Borrowing, Robert L. Tsai, Nelson Tebbe Jan 2010

Constitutional Borrowing, Robert L. Tsai, Nelson Tebbe

Faculty Scholarship

Borrowing from one domain to promote ideas in another domain is a staple of constitutional decisionmaking. Precedents, arguments, concepts, tropes, and heuristics all can be carried across doctrinal boundaries for purposes of persuasion. Yet the practice itself remains underanalyzed. This Article seeks to bring greater theoretical attention to the matter. It defines what constitutional borrowing is and what it is not, presents a typology that describes its common forms, undertakes a principled defense of borrowing, and identifies some of the risks involved. Our examples draw particular attention to places where legal mechanisms and ideas migrate between fields of law associated …


Tragic Irony Of American Federalism: National Sovereignty Versus State Sovereignty In Slavery And In Freedom, The Federalism In The 21st Century: Historical Perspectives, Robert J. Kaczorowski Jan 1996

Tragic Irony Of American Federalism: National Sovereignty Versus State Sovereignty In Slavery And In Freedom, The Federalism In The 21st Century: Historical Perspectives, Robert J. Kaczorowski

Faculty Scholarship

A plurality on the Supreme Court seeks to establish a state-sovereignty based theory of federalism that imposes sharp limitations on Congress's legislative powers. Using history as authority, they admonish a return to the constitutional "first principles" of the Founders. These "first principles," in their view, attribute all governmental authority to "the consent of the people of each individual state, not the consent of the undifferentiated people of the Nation as a whole." Because the people of each state are the source of all governmental power, they maintain, "where the Constitution is silent about the exercise of a particular power-that is, …


Reflections On From Slaves To Citizens Bondage, Freedom And The Constitution: The New Slavery Scholarship And Its Impact On Law And Legal Historiography, Robert J. Kaczorowski Jan 1995

Reflections On From Slaves To Citizens Bondage, Freedom And The Constitution: The New Slavery Scholarship And Its Impact On Law And Legal Historiography, Robert J. Kaczorowski

Faculty Scholarship

The thesis of Professor Donald Nieman's paper, "From Slaves to Citizens: African-Americans, Rights Consciousness, and Reconstruction," is that the nation experienced a revolution in the United States Constitution and in the consciousness of African Americans. According to Professor Nieman, the Reconstruction Amendments represented "a dramatic departure from antebellum constitutional principles,"' because the Thirteenth Amendment reversed the pre-Civil War constitutional guarantee of slavery and "abolish[ed] slavery by federal authority." The Fourteenth Amendment rejected the Supreme Court's "racially-based definition of citizenship [in Dred Scott v. Sandford4], clearly establishing a color-blind citizenship” and the Fifteenth Amendment "wrote the principle of equality into the …


Notes On A Bicentennial Constitution: Part I, Processes Of Change, William W. Van Alstyne Jan 1984

Notes On A Bicentennial Constitution: Part I, Processes Of Change, William W. Van Alstyne

Faculty Scholarship

With the approach of the Bill of Rights bicentennial, this paper takes the cause for celebration as an equally important occasion for critique. This work argues that the most distinguishing aspects of our Constitution are not the Bill of Rights, federalism, and separation of powers, but rather the availability of judicial review, the political insulation of federal judges, and the limited mechanisms available for constitutional change.