Open Access. Powered by Scholars. Published by Universities.®

Legal History Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 5 of 5

Full-Text Articles in Legal History

It's The Constitution, Stupid: Two Liberals Pay Tribute To Antonin Scalia's Legacy, Adam Lamparello, Charles E. Maclean May 2014

It's The Constitution, Stupid: Two Liberals Pay Tribute To Antonin Scalia's Legacy, Adam Lamparello, Charles E. Maclean

Adam Lamparello

Living constitutionalism may achieve “good” results, but with each Roe v. Wade, and Bush v. Gore, the Constitution’s vision takes more shallow breaths, and democracy fades into elitism’s shadow. The debate over constitutional interpretation is, in many ways, reducible to this question: if a particular outcome is desirable, and the Constitution’s text is silent or ambiguous, should the United States Supreme Court (or any court) disregard constitutional constraints to achieve that outcome? If the answer is yes, nine unelected judges have the power to choose outcomes that are desirable. If the answer is no, then the focus ...


It's The Constitution, Stupid: Two Liberals Pay Tribute To Antonin Scalia's Legacy, Adam Lamparello, Charles E. Maclean May 2014

It's The Constitution, Stupid: Two Liberals Pay Tribute To Antonin Scalia's Legacy, Adam Lamparello, Charles E. Maclean

Adam Lamparello

Living constitutionalism may achieve “good” results, but with each Roe v. Wade, and Bush v. Gore, the Constitution’s vision takes more shallow breaths, and democracy fades into elitism’s shadow. The debate over constitutional interpretation is, in many ways, reducible to this question: if a particular outcome is desirable, and the Constitution’s text is silent or ambiguous, should the United States Supreme Court (or any court) disregard constitutional constraints to achieve that outcome? If the answer is yes, nine unelected judges have the power to choose outcomes that are desirable. If the answer is no, then the focus ...


Riley V. California: Privacy Still Matters, But How Much And In What Contexts?, Adam Lamparello, Charles Maclean Jan 2014

Riley V. California: Privacy Still Matters, But How Much And In What Contexts?, Adam Lamparello, Charles Maclean

Adam Lamparello

Private information is no longer stored only in homes or other areas traditionally protected from warrantless intrusion. The private lives of many citizens are contained in a digital device no larger than the palm of their hand—and carried in public places. But that does not make the data within a cell phone any less private, just as the dialing of a phone number does not voluntarily waive an individual’s right to keep their call log or location private. Remember that we are not talking about individuals suspected of committing violent crimes. The Government is recording the calls and ...


Restoring Constitutional Equilibrium, Adam Lamparello Jan 2014

Restoring Constitutional Equilibrium, Adam Lamparello

Adam Lamparello

In areas such as the Fourteenth Amendment, the Supreme Court's lack of institutional restraint has affected citizens of every political persuasion. In Bush v. Gore, the Florida Supreme Court’s recount order was blocked. ‘Liberals,’ lost. In Roe v. Wade, the Court required state legislatures to allow most abortions in the first trimester. ‘Conservatives’ lost. In Clinton v. City of New York and Citizens United v. Federal Election Commission, the coordinate branch’s attempt to ensure a more efficient and fairer government was thwarted. Average citizens lost. The problem is not a liberal or conservative one, whatever those words ...


Bridging The Divide Between Justice Kennedy’S Progressivism And Justice Scalia’S Textualism: Introducing The Concept Of Negative Originalism, Adam Lamparello Jan 2007

Bridging The Divide Between Justice Kennedy’S Progressivism And Justice Scalia’S Textualism: Introducing The Concept Of Negative Originalism, Adam Lamparello

Adam Lamparello

This Article examines the United States's Supreme Court's reliance upon foreign sources of law when adjudicating "values based" cases. In particular, the Article analyzes the Court's decision in Lawrence v. Texas, with particular emphasis upon the interpretive approaches utilized by Justices Breyer ("progressivism") and Scalia ("originalism") in arriving at their respective decisions. Based upon such examination, including the efficacy of relying upon foreign sources of law to support domestic constitutional decisions, this Article proposes a new interpretive paradigm, entitled "negative originalism", which strives to ensure fidelity to the Constitution's original purposes and objectives, while allowing courts ...