Open Access. Powered by Scholars. Published by Universities.®
- Discipline
- Keyword
-
- Feminist Legal Theory (2)
- Judicial Review (2)
- Citizenship (1)
- Congress (1)
- Constitution (1)
-
- Constitutional Federalism (1)
- Constitutional Interpretation (1)
- Constitutionalism (1)
- Constraint of Choice (1)
- Democracy (1)
- Democratic Legitimacy (1)
- Feminism (1)
- First Principles (1)
- Founders (1)
- Individual Choice (1)
- Mainstream Constitutioal Theory (1)
- Oliver Wendell Holmes (1)
- Social Construction of Choice (1)
- State v. Federal Government (1)
- Supreme Court (1)
- The Path of the Law (1)
Articles 1 - 3 of 3
Full-Text Articles in Legal History
Straying From The Path Of The Law After One Hundred Years, The, Tracy E. Higgins
Straying From The Path Of The Law After One Hundred Years, The, Tracy E. Higgins
Faculty Scholarship
What common ground can be found between modern feminist legal theory and a century-old essay advocating understanding the law from the perspective of the "bad man"? The question admits of no simple answer. Feminists, including myself, might agree with some irony that "[i]f you want to know the law and nothing else, you must look at it as a bad man" but would add that this is precisely the problem. Of course, Holmes does not use the concept of the bad man in a feminist sense to suggest that the law empowers the bad man at the expense of women. …
Democracy And Feminism , Tracy E. Higgins
Democracy And Feminism , Tracy E. Higgins
Faculty Scholarship
Although feminist legal theory has had an important impact on most areas of legal doctrine and theory over the last two decades, its contribution to the debate over constitutional interpretation has been comparatively small. In this Article, Professor Higgins explores reasons for the limited dialogue between mainstream constitutional theory and feminist theory concerning questions of democracy, constitutionalism, and judicial review. She argues that mainstream constitutional theory tends to take for granted the capacity of the individual to make choices, leaving the social construction of those choices largely unexamined. In contrast, feminist legal theory's emphasis on the importance of constraints on …
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
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, …