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Full-Text Articles in Legal History
Exposing The Contradiction: An Originalist's Approach To Understanding Why Substantive Due Process Is A Constitutional Misinterpretation, Jason A. Crook
Exposing The Contradiction: An Originalist's Approach To Understanding Why Substantive Due Process Is A Constitutional Misinterpretation, Jason A. Crook
Nevada Law Journal
Few phrases in American jurisprudence have created more of a stir or inspired greater controversy than the seventeen words that comprise the due process clause of the Fourteenth Amendment. Drafted by the Reconstruction Congress in the aftermath of the Civil War, these words have been used to strike down maximum-hours legislation, permit the instruction of foreign languages in schools, and even establish the right of minors to purchase contraceptives. In light of its linguistic incongruity and the versatility of its judicial precedents, one could fairly state that the meaning of the Fourteenth Amendment's due process clause has been the subject …
Ugly American Hermeneutics, Francis J. Mootz Iii
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.