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Articles 1 - 16 of 16
Full-Text Articles in Legal History
Privacy, Police Power, And The Growth Of Public Power In The Early Twentieth Century: A Not So Unlikely Coexistence, Carol Nackenoff
Privacy, Police Power, And The Growth Of Public Power In The Early Twentieth Century: A Not So Unlikely Coexistence, Carol Nackenoff
Maryland Law Review
No abstract provided.
When Congress Is Away The President Shall Not Play: Justice Scalia's Concurrence In Nlrb V. Noel Canning, Krista M. Pikus
When Congress Is Away The President Shall Not Play: Justice Scalia's Concurrence In Nlrb V. Noel Canning, Krista M. Pikus
Michigan Law Review First Impressions
On June 26, 2014, the Supreme Court unanimously decided NLRB v. Noel Canning, holding that the Recess Appointments Clause authorizes the president “to fill any existing vacancy during any recess . . . of sufficient length.” Justice Scalia filed a concurring opinion, joined by Chief Justice Roberts, Justice Thomas, and Justice Alito. While Justice Scalia “concurred,” his opinion read more like a dissent. Both the majority and the concurring opinions relied heavily on historical evidence in arriving at their respective opinions. This was expected from Justice Scalia given his method of “new originalism,” which focuses on “the original public …
Canadian Constitutional Identities, Eric M. Adams
Canadian Constitutional Identities, Eric M. Adams
Dalhousie Law Journal
Constitutions are stories nations tell about themselves. Despite the famous declaration in the Constitution Act, 1867 that the "Provinces ofCanada...Desire...a Constitution similar in Principle to that of the United Kingdom," most of Canada's constitutional history can be understood as the search for a distinctly Canadian constitutional identity Canadians have always looked to their constitutional instruments to both reflect and produce a particular vision of the nation and its citizens. This article focuses on the search for Canada s constitutional identity during its first century as a nation, from Confederation until the 1960s. Drawing on a varied array of sources and …
Revival: Toward A Formal Neutrality Approach To Economic Development Transfers To Religious Institutions, Ryan A. Doringo
Revival: Toward A Formal Neutrality Approach To Economic Development Transfers To Religious Institutions, Ryan A. Doringo
Akron Law Review
Part I of this Note explores the contours of the complicated history of the Establishment Clause by examining the creation of the Lemon test and the inconsistencies of the test’s subsequent application. The Note then explores Justice O’Connor’s endorsement modification to that test. Part I concludes with a discussion of the Supreme Court’s move toward embracing a principle formal neutrality. Part II provides a factual history of the transfer at issue and a detailed summary of the District Court’s opinion in Wirtz. Part III of the Note explains that the Constitution does not preclude economic development transfers to religious institutions. …
Secession And Breach Of Compact: The Law Of Nature Meets The United States Constitution, Stephen C. Neff
Secession And Breach Of Compact: The Law Of Nature Meets The United States Constitution, Stephen C. Neff
Akron Law Review
This discussion will briefly outline the legal arguments in favour of the secessionist position. The first section will survey four arguments that could, in theory, have been employed but which, in practice, were used either not at all or only marginally. The second section will survey, in greater detail, the principal argument which was advanced in 1860-61: that secession was a lawful remedy available to the Southern states in the face of material breaches of the Constitutional compact of 1787 by the free states. It will be observed that, in this argument, general considerations of natural law and of the …
Still Too Close To Call? Rethinking Stampp's "The Concept Of A Perpetual Union", Daniel W. Hamilton
Still Too Close To Call? Rethinking Stampp's "The Concept Of A Perpetual Union", Daniel W. Hamilton
Akron Law Review
In a classic article in the Journal of American History, which was based on his presidential address to the Organization of American Historians in 1978, the great Civil War historian Kenneth Stampp made the claim that the arguments in favor of the constitutionality of secession made by the Southern states were as strong, if not stronger than the constitutional arguments made, then and now, in opposition to secession. Stampp is to my mind the greatest Civil War historian of the 20th century and his views on secession remain required reading and are cited routinely today. This is not to say …
The Sweeping Domestic War Powers Of Congress, Saikrishna Bangalore Prakash
The Sweeping Domestic War Powers Of Congress, Saikrishna Bangalore Prakash
Michigan Law Review
With the Habeas Clause standing as a curious exception, the Constitution seems mysteriously mute regarding federal authority during invasions and rebellions. In truth, the Constitution speaks volumes about these domestic wars. The inability to perceive the contours of the domestic wartime Constitution stems, in part, from unfamiliarity with the multifarious emergency legislation enacted during the Revolutionary War. During that war, state and national legislatures authorized the seizure of property, military trial of civilians, and temporary dictatorships. Ratified against the backdrop of these fairly recent wartime measures, the Constitution, via the Necessary and Proper Clause and other provisions, rather clearly augmented …
Colonialism And Constitutional Memory, Aziz Rana
Colonialism And Constitutional Memory, Aziz Rana
UC Irvine Law Review
No abstract provided.
The Commonwealth Of Puerto Rico: Trying To Gain Dignity And Maintain Culture, Arnold Leibowitz
The Commonwealth Of Puerto Rico: Trying To Gain Dignity And Maintain Culture, Arnold Leibowitz
Georgia Journal of International & Comparative Law
No abstract provided.
New York's Statutory Bill Of Rights: A Constitutional Coelacanth, Robert Emery
New York's Statutory Bill Of Rights: A Constitutional Coelacanth, Robert Emery
Touro Law Review
No abstract provided.
Saving Originalism, Robert J. Delahunty, John Yoo
Saving Originalism, Robert J. Delahunty, John Yoo
Michigan Law Review
It is sometimes said that biographers cannot help but come to admire, even love, their subjects. And that adage seems to ring true of Professor Amar, the foremost “biographer” of the Constitution. He loves it not just as a governing structure, or a political system, but as a document. He loves the Constitution in the same way that a fan of English literature might treasure Milton’s Paradise Lost or Shakespeare’s Macbeth. He loves the Constitution not just for the good: the separation of powers, federalism, and the Bill of Rights. He also loves it for its nooks and crannies, idiosyncrasies, …
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
Marquette Law Review
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 …
A Survey Of The History Of The Death Penalty In The United States, Sheherezade C. Malik, D. Paul Holdsworth
A Survey Of The History Of The Death Penalty In The United States, Sheherezade C. Malik, D. Paul Holdsworth
University of Richmond Law Review
No abstract provided.
Understanding Political Systems: A Comment On Methods Of Comparative Research, T. Koopmans
Understanding Political Systems: A Comment On Methods Of Comparative Research, T. Koopmans
Georgia Journal of International & Comparative Law
No abstract provided.
Originalism And The Ratification Of The Fourteenth Amendment, Thomas B. Colby
Originalism And The Ratification Of The Fourteenth Amendment, Thomas B. Colby
Northwestern University Law Review
Originalists have traditionally based the normative case for originalism primarily on principles of popular sovereignty: the Constitution owes its legitimacy as higher law to the fact that it was ratified by the American people through a supermajoritarian process. As such, it must be interpreted according to the original meaning that it had at the time of ratification. To give it another meaning today is to allow judges to enforce a legal rule that was never actually embraced and enacted by the people. Whatever the merits of this argument in general, it faces particular hurdles when applied to the Fourteenth Amendment. …
The Scottish Independence Referendum And The Principles Of Democratic Secession, Benjamin Levites
The Scottish Independence Referendum And The Principles Of Democratic Secession, Benjamin Levites
Brooklyn Journal of International Law
On September 18, 2014, Scottish voters decided whether to sever the 307 years of unity between Scotland and the United Kingdom in an independence referendum. While the voters ultimately rejected independence, the process by which the Scots accomplished this historic exercise will inform further democratic secession movements.
This Note examines the significant implications of Scotland’s independence referendum by assessing the history of independence referendums and the present scope of relevant international law. The formative history of the independence referendum and modern precedential examples established the requirements for democratic secession. In turn, the Scottish independence referendum, in the context of evolving …