Legal History Commons^™

An Analysis Of The Competing Views On The Interpretation Of The U.S. Constitution, Joseph Longo

Senior Honors Theses

This thesis will examine the competing interpretations of the United States Constitution and the different effects these interpretations would have on the American government and legal systems. By examining legal precedents and different philosophical views, the varying interpretations will be examined and put through real-world scenarios. The founding of America was over 200 years ago, but philosophical views throughout history shall be used in the understanding of the different interpretations and real-world consequences. The thesis will not claim that one interpretation is proper and the perfect one for the United States, rather it will challenge each view in an attempt …

The Influence Of The Warren Court And Natural Rights On Substantive Due Process, James Marmaduke

Calvert Undergraduate Research Awards

Advanced Research Winner 2019:

While the concept of substantive due process has guided judicial decision making even prior to the Civil War, it has become a lightning rod among the juristic community especially since the 1960s. This controversy includes issues ranging from the applicability and reliability to the cogency and legitimacy of the doctrine of substantive due process Many scholars attribute the skepticism toward the concept of substantive due process to be the result of a paradigm shift in the middle of the 20^th century when this concept transitioned from an economic and property rights based approach to one …

Courtroom To Classroom: Judicial Policymaking And Affirmative Action, Dylan Britton Saul

Political Science Honors Projects

The judicial branch, by exercising judicial review, can replace public policies with ones of their own creation. To test the hypothesis that judicial policymaking is desirable only when courts possess high capacity and necessity, I propose an original model incorporating six variables: generalism, bi-polarity, minimalism, legitimization, structural impediments, and public support. Applying the model to a comparative case study of court-sanctioned affirmative action policies in higher education and K-12 public schools, I find that a lack of structural impediments and bi-polarity limits the desirability of judicial race-based remedies in education. Courts must restrain themselves when engaging in such policymaking.

Constitution Day 2012: The American Judiciary, Robert Berry

Librarian Publications

Robert Berry, research librarian for the social sciences at the Sacred Heart University Library, has written an essay about the role of the American Judiciary in interpreting laws of the United States government. The essay was written for the occasion of Constitution Day 2012 at Sacred Heart University.

Rehnquist's Missing Letter: A Former Law Clerk's 1955 Thoughts On Justice Jackson And Brown, John Q. Barrett, Brad Snyder

Faculty Publications

"I think that Plessy v. Ferguson was right and should be reaffirmed." That's what Supreme Court law clerk William H. Rehnquist wrote privately in December 1952 to his boss, Justice Robert H. Jackson. When the memorandum was made public in 1971 and Rehnquist's Supreme Court confirmation hung in the balance, he claimed that the memorandum reflected Jackson's views, not Rehnquist's. Rehnquist was confirmed, but his explanation triggered charges that he had lied and smeared the memory of one of the Court's most revered justices. This Essay analyzes a newly discovered document—a letter Rehnquist wrote to Justice Felix Frankfurter in 1955, …

All Judges Are Political—Except When They Are Not: Acceptable Hypocrisies And The Rule Of Law, Keith J. Bybee

College of Law - Faculty Scholarship

This paper contains the introduction to the new book, All Judges Are Political—Except When They Are Not: Acceptable Hypocrisies and the Rule of Law (Stanford University Press, 2010).

The book begins with the observation that Americans are divided in their beliefs about whether courts operate on the basis of unbiased legal principle or of political interest. This division in public opinion in turn breeds suspicion that judges do not actually mean what they say, that judicial professions of impartiality are just fig leaves used to hide the pursuit of partisan purposes.

Comparing law to the practice of common courtesy, the …

A Tale Of Two Paradigms: Judicial Review And Judicial Duty, Philip A. Hamburger

Faculty Scholarship

What is the role of judges in holding government acts unconstitutional? The conventional paradigm is "judicial review." From this perspective, judges have a distinct power to review statutes and other government acts for their constitutionality. The historical evidence, however, reveals another paradigm, that of judicial duty. From this point of view, presented in my book Law and Judicial Duty, a judge has an office or duty, in all decisions, to exercise judgment in accord with the law of the land. On this understanding, there is no distinct power to review acts for their constitutionality, and what is called "judicial review" …

Law And Judicial Duty, Philip A. Hamburger

Faculty Scholarship

Two hundred years ago, in Marbury v. Madison, Chief Justice Marshall delivered an opinion that has come to dominate modern discussions of constitutional law. Faced with a conflict between an act of Congress and the U.S. Constitution, he explained what today is known as "judicial review." Marshall described judicial review in terms of a particular type of "superior law" and a particular type of "judicial duty." Rather than speak generally about the hierarchy within law, he focused on "written constitutions."

He declared that the U.S. Constitution is "a superior, paramount law" and that if "the constitution is superior to any …