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Articles 1 - 5 of 5

Full-Text Articles in Legal History

Second Amendment Incorporation Through The Fourteenth Amendment Privileges Or Immunities And Due Process Clauses, Michael A. Lawrence Jan 2007

Second Amendment Incorporation Through The Fourteenth Amendment Privileges Or Immunities And Due Process Clauses, Michael A. Lawrence

Faculty Publications

The second amendment, alternately maligned over the years as the black sheep of the constitutional family and worse, and praised as a palladium of the liberties of a republic, since it offers a strong moral check against the usurpation and arbitrary power of rulers, should be recognized by the United States Supreme Court to apply to the several States through the Fourteenth Amendment privileges or immunities clause or, alternatively, through the due process clause.

This article suggests that the issue of Second Amendment incorporation presents a useful contemporary mechanism for the Court to revive the long-dormant Fourteenth Amendment privileges or ...


Preconstitutional Federal Power, Matthew L.M. Fletcher Jan 2007

Preconstitutional Federal Power, Matthew L.M. Fletcher

Faculty Publications

In two fields of constitutional law, the Supreme Court has acknowledged that the federal government may possess preconstitutional power, or national authority derived not from the Constitution but from the very fact of sovereignty. This Article analyzes the two areas of law – the Foreign Affairs Power and the Indian Affairs Power – and assesses their viability in future cases. The case recognizing a preconstitutional Foreign Affairs Power resting with the Executive branch, United States v. Curtiss-Wright Export Corp., suffers from poor historical reasoning and has little precedential weight in modern foreign affairs cases, but has never been overruled. The Indian Affairs ...


Government As Liberty's Servant: The "Reasonable Time, Place And Manner" Standard Of Review For All Government Restrictions On Liberty Interests, Michael A. Lawrence Jan 2007

Government As Liberty's Servant: The "Reasonable Time, Place And Manner" Standard Of Review For All Government Restrictions On Liberty Interests, Michael A. Lawrence

Faculty Publications

This essay suggests that the American legal system fails to do proper justice to the robust conception of Liberty under which the nation was founded, and locates a major source of the problem in the Supreme Court’s current presumption-of-constitutionality approach to judicial review, prompted by post-New Deal backlash to Lochner v. New York. This essay offers a new due process clause-based presumption-of-liberty standard of judicial review, modeled on the Court’s existing First Amendment “reasonable time, place and manner” doctrine. This approach, already utilized narrowly by the Third Circuit Federal Court of Appeals in Lutz v. York in 1990 ...


Common Law, Civil Law, And The Administrative State: From Coke To Lochner, Noga Morag-Levine Jan 2007

Common Law, Civil Law, And The Administrative State: From Coke To Lochner, Noga Morag-Levine

Faculty Publications

No abstract provided.


Article I, Section 4 Of The Constitution, The Voting Rights Act, And Restoration Of The Congressional Portion Of The Election Ballot: The Final Frontier Of Felon Disenfranchisement Jurisprudence?, Daniel Martin Katz Jan 2007

Article I, Section 4 Of The Constitution, The Voting Rights Act, And Restoration Of The Congressional Portion Of The Election Ballot: The Final Frontier Of Felon Disenfranchisement Jurisprudence?, Daniel Martin Katz

Faculty Publications

No abstract provided.