Legal History Commons^™

Towards A Dramaturgical Theory Of Constitutional Interpretation, Jessica Rizzo

Seattle University Law Review

Like legal texts, dramatic texts have a public function and public responsibilities not shared by texts written to be appreciated in solitude. For this reason, the interpretation of dramatic texts offers a variety of useful templates for the interpretation of legal texts. In this Article, I elaborate on Jack Balkin and Sanford Levinson’s neglected account of law as performance. I begin with Balkin and Levinson’s observation that both legal and dramatic interpreters are charged with persuading audiences that their readings of texts are “authoritative,” analyzing the relationship between legal and theatrical authority and tradition. I then offer my own theory …

Protections Against Tyranny: How Article V Should Guide Constitutional Interpretation, Mary Strong

Indiana Law Journal

This Note seeks to explain what Article V means for the methods of constitutional change outside of the traditional Article V amendment process. Specifically, I argue that Article V was meant to limit the federal government from usurping power without first attaining the consent of the people. Because the Supreme Court is part of the federal government and is often considered a counter-majoritarian institution, the Court cannot extend the powers of the federal government through constitutional interpretation beyond the bounds allowed in the Constitution. Therefore, the only means to change the power structure of the federal government (the balance of …

Correspondence: The Stuff Of Constitutional Law, Neal Devins

Neal E. Devins

No abstract provided.

Congress As Culprit: How Lawmakers Spurred On The Court's Anti-Congress Crusade, Neal Devins

Neal E. Devins

No abstract provided.

The Declaration Of Independence And Constitutional Interpretation, Alexander Tsesis

Alexander Tsesis

This Article argues that the Reconstruction Amendments incorporated the human dignity values of the Declaration of Independence. The original Constitution contained clauses, which protected the institution of slavery, that were irreconcilable with the normative commitments the nation had undertaken at independence. The Thirteenth, Fourteenth, and Fifteenth Amendments set the country aright by formally incorporating the Declaration of Independence's principles for representative governance into the Constitution.

The Declaration of Independence provides valuable insights into matters of human dignity, privacy, and self-government. Its statements about human rights, equality, and popular sovereignty establish a foundational rule of interpretation. While the Supreme Court has …

The Declaration Of Independence And Constitutional Interpretation, Alexander Tsesis

Faculty Publications & Other Works

This Article argues that the Reconstruction Amendments incorporated the human dignity values of the Declaration of Independence. The original Constitution contained clauses, which protected the institution of slavery, that were irreconcilable with the normative commitments the nation had undertaken at independence. The Thirteenth, Fourteenth, and Fifteenth Amendments set the country aright by formally incorporating the Declaration of Independence's principles for representative governance into the Constitution.

The Declaration of Independence provides valuable insights into matters of human dignity, privacy, and self-government. Its statements about human rights, equality, and popular sovereignty establish a foundational rule of interpretation. While the Supreme Court has …

Plenary No Longer: How The Fourteenth Amendment "Amended" Congressional Jurisdiction-Stripping Power, Maggie Blackhawk

All Faculty Scholarship

This Note proposes a solution to the long-standing debate among federal courts scholars as to where to draw the limits of congressional power to strip appellate jurisdiction from the Supreme Court and to strip original jurisdiction from the lower federal courts. Although the Supreme Court has rarely addressed the possibility of limitations on congressional jurisdiction-stripping power, the few determinative cases to go before the Court reveal an acceptance of the orthodox view of plenary power. Proponents of the orthodox view maintain that state courts, bound to hear constitutional claims by their general jurisdictional grant and to enforce the Constitution by …

Ugly American Hermeneutics, Francis J. Mootz Iii

Scholarly Works

This article will appear in a Symposium on comparative legal hermeneutics that includes four articles by American scholars and four articles by Brazilian scholars. I argue that the "ugly American" hermeneutics exemplified in Justice Scalia's opinion in District of Columbia v. Heller is unfortunate, even if we supplement Justice Scalia's hermeneutical fantasy with the much more careful and balanced philosophical work by Larry Solum, Keith Whittington and other scholars. Nevertheless, the pragmatic work of interpretation by lawyers and judges in the day-to-day world of legal practice shows a plain-faced integrity of which we Americans can be proud.

Ugly American Hermeneutics, Francis J. Mootz Iii

Nevada Law Journal

This article will appear in a Symposium on comparative legal hermeneutics that includes four articles by American scholars and four articles by Brazilian scholars. I argue that the "ugly American" hermeneutics exemplified in Justice Scalia's opinion in District of Columbia v. Heller is unfortunate, even if we supplement Justice Scalia's hermeneutical fantasy with the much more careful and balanced philosophical work by Larry Solum, Keith Whittington and other scholars. Nevertheless, the pragmatic work of interpretation by lawyers and judges in the day-to-day world of legal practice shows a plain-faced integrity of which we Americans can be proud.

Appeal To Heaven: On The Religious Origins Of The Constitutional Right Of Revolution, John M. Kang

William & Mary Bill of Rights Journal

No abstract provided.

Much Ado About Pluralities: Pride And Precedent Amidst The Cacophy Of Concurrences, And Re-Percolation After Rapanos, Donald J. Kochan, Melissa M. Berry, Matthew J. Parlow

Donald J. Kochan

Conflicts created by concurrences and pluralities in court decisions create confusion in law and lower court interpretation. Rule of law values require that individuals be able to identify controlling legal principles. That task is complicated when pluralities and concurrences contribute to the vagueness or uncertainty that leaves us wondering what the controlling rule is or attempting to predict what it will evolve to become. The rule of law is at least handicapped when continuity or confidence or confusion infuse our understanding of the applicable rules. This Article uses the recent U.S. Supreme Court decision in Rapanos v. United States to …

Race, Rights, And The Thirteenth Amendment: Defining The Badges And Incidents Of Slavery, William M. Carter Jr.

Articles

The Supreme Court has held that the Thirteenth Amendment prohibits slavery or involuntary servitude and also empowers Congress to end any lingering "badges and incidents of slavery." The Court, however, has failed to provide any guidance as to defining the badges and incidents of slavery when Congress has failed to identify a condition or form of discrimination as such. This has led the lower courts to conclude that the judiciary's role under the Thirteenth Amendment is limited to enforcing only the Amendment's prohibition of literal enslavement.

This article has two primary objectives. First, it offers an interpretive framework for defining …

Congress As Culprit: How Lawmakers Spurred On The Court's Anti-Congress Crusade, Neal Devins

Faculty Publications

No abstract provided.

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 …

Correspondence: The Stuff Of Constitutional Law, Neal Devins

Faculty Publications

No abstract provided.

Constitutional Authority In An Age Of Moral Indeterminacy, Ralph F. Gaebler

Indiana Law Journal

No abstract provided.