Social and Behavioral Sciences Commons^™

Secrecy Broken: Reports Of The Delegates Following The Federal Convention, Peter Aschenbrenner

Peter J. Aschenbrenner

Despite the measures taken to ensure the secrecy of the proceedings during the federal convention, many delegates made reports to their states and explained the choices underlying various clauses. However, no delegate had access to the official journal of the constitutional convention.

The Commons, Capitalism, And The Constitution, George Skouras

George Skouras

Thesis Summary: the erosion of the Commons in the United States has contributed to the deterioration of community and uprooting of people in order to meet the dynamic demands of capitalism. This article suggests countervailing measures to help remedy the situation.

Table Annexed To Article: Hamilton And Madison Deploy ‘Constitution’ In The Federalist Papers: Semantic Values Surveyed, Peter Aschenbrenner

Peter J. Aschenbrenner

The eighty-five Federal Papers (authors James Madison and Alexander Hamilton; John Jay contributed five) are justifiably famous as elaborations of constitutional structure and text, sans citation to the convention, understandably, since secrecy imposed by Standing Order on May 28th was continued indefinitely (at the pleasure/non-action of Congress) on September 17th. Counts on semantic value/s of ‘constitution’ and ‘constitutional’ are surveyed.

A Detailed Breakdown Of Note-Takers Surveyed From Farrand’S Records Vols. 1 And 2 (1937), Peter Aschenbrenner

Peter J. Aschenbrenner

Eleven of the fifty-five delegates that attended the Federal Convention took notes during the proceedings. These notes, along with Jackson’s official journal and available committee drafts, are assembled in Farrand’s Records of the Federal Convention of 1787 at volumes 1 and 2. OCL provides a page-by-page breakdown of the text [of their notes] which appears in the Farrandian presentation.

Table Annexed To Article: Introducing Constitutional Text Units, Peter Aschenbrenner

Peter J. Aschenbrenner

The traditional citation format for reference to specific passages in the federal constitution does not account for the order in which text was added, changed or deleted; a new citation format is proposed, called ‘Constitutional Text Units’; Madison’s June, 1789 suggestion for maintaining a coherent presentation is explained and defended.

La Objeción Democrática A Los Límites Materiales De La Reforma Constitucional, Sergio Verdugo Sverdugor@Udd.Cl

Sergio Verdugo R.

En este ensayo el autor argumenta que las teorías de algunos constitucionalistas chilenos que justifican la imposibilidad de modificar la Constitución de acuerdo a límites materiales derivados especialmente del Derecho (y jurisprudencia) Internacional, es contraria a la libre deliberación que debiera existir en nuestra democracia constitucional.

Waging War On Specialty Pharmaceutical Tiering In Pharmacy Benefit Design, Chad I. Brooker

Chad I Brooker

Specialty drugs represent a growing concern for both health insurance issuers and beneficiaries given their exceedingly high (and growing) costs—representing almost half of all drug spend by 2017. Payers have sought to reduce their specialty drug spend by sharing more of the cost of these drugs with the beneficiaries who depend on them through the creation of specialty drug tiers. This has forced some patients to choose between forgoing other needs to pay for their medications or not take them at all. While several states have sought to outlaw the use of specialty drug tiers or limit pharmaceutical OOP cost-sharing, …

What’S Age Got To Do With It? Supreme Court Appointees And The Long Run Location Of The Supreme Court Median Justice, Matthew L. Spitzer

Matthew L Spitzer

For approximately the past 40 years Republican Presidents have appointed younger Justices than have Democratic Presidents. Depending on how one does the accounting, the average age difference will vary, but will not go away. This Article posits that Republicans appointing younger justices than Democrats may have caused a rightward shift in the Supreme Court. We use computer simulations to show that if the trend continues the rightward shift will likely increase. We also to produce some very rough estimates of the size of the ideological shift, contingent on the size of the age differential. In addition, we show that the …

Table Annexed To Article: Detailed Breakdown Of Note-Takers In Farrand As Extracted From Farrand’S Records Vols. 1 And 2, Peter Aschenbrenner

Peter J. Aschenbrenner

Eleven of the fifty-five delegates that attended the Federal Convention took notes during the proceedings. These notes, along with Jackson’s official journal and available committee drafts, are assembled in Farrand’s Records of the Federal Convention of 1787 at volumes 1 and 2. OCL provides a page-by-page breakdown of the text [of their notes] which appears in the Farrandian presentation.

Table Annexed To Article:The Colours Of The Constitution: More On Deep Structure And Logics Anterior, Peter Aschenbrenner

Peter J. Aschenbrenner

The colours of the Early Constitution, broken down into Philadelphia and Corrective Constitutions, and further subdividable, reveal our first glimpse of the deep structure of constitutional texts. An introduction to constitutional logic – or at least a presentation of the effects of its deployment in venue – demonstrates the divide between crafting responsibilities and disabilities, a divide taken seriously by text writers.

The Colours Of The Constitution: More On Deep Structure And Logics Anterior, Peter Aschenbrenner

Peter J. Aschenbrenner

The colours of the Early Constitution, broken down into Philadelphia and Corrective Constitutions, and further subdividable, reveal our first glimpse of the deep structure of constitutional texts. An introduction to constitutional logic – or at least a presentation of the effects of its deployment in venue – demonstrates the divide between crafting responsibilities and disabilities, a divide taken seriously by text writers.

Hamilton And Madison Deploy ‘Necessary’ In Works Dated To 1787/88, 1790/91 And 1817-36, Peter Aschenbrenner

Peter J. Aschenbrenner

In this first of three articles, the semantic values of ‘necessary’ are separated into two groups, beginning with The Federalist Papers, with the focus being on the works of Alexander Hamilton and James Madison. In the second tranche of works, their efforts – now as opponents – in the bank bill debate are examined; in the third, given Hamilton’s death in 1804, only Madison’s words are examined. Like ‘constitution,’ ‘necessary’ also offers competing values at the quantum level of analysis. Three different values are discoverable.

Hamilton And Madison Deploy ‘Exigencies’ In Works Dated To 1787/88, 1790/91 And 1817-36, Peter Aschenbrenner

Peter J. Aschenbrenner

In this first of three articles, the reader’s attention is directed to ‘exigencies’ through quotations drawn from the The Federalist Papers (the focus being on the works of Alexander Hamilton and James Madison). This article then explores their semantic contest in the bank bill debate; finally, given Hamilton’s death in 1804, Madison’s works (from 1817-1836) are examined and quotations drawn from that material.

Hamilton And Madison Deploy ‘Exigencies’ In Works Dated To 1787/88, 1790/91 And 1817-1836 Surveyed By Percent Of Words In Source, Peter Aschenbrenner

Peter J. Aschenbrenner

In this third of three articles, frequencies by Madison and Hamilton for ‘exigencies’ are cumulated. Hits surveyed in the three disputed essays are divided equally between Madison and Hamilton. Frequency (by percent) is multiplied by 1000 for ready comparison. The Word vs. the Need contest for primacy at the supra-constitutional level; JM and AH are scored accordingly.

Hamilton And Madison Deploy ‘Constitution’ In Works Dated To 1787/88, 1790/91 And 1817-1836: Semantic Values Surveyed With Quotations, Peter Aschenbrenner

Peter J. Aschenbrenner

In this first of three articles, the semantic values of ‘constitution’ and ‘constitutional’ are spread through an eleven way grid, beginning with The Federalist Papers, with the focus being on the works of Alexander Hamilton and James Madison. In the second tranche of works, their efforts – now as opponents – in the bank bill debate are examined; in the third, given Hamilton’s death in 1804, only Madison’s words are examined.

Regulatory Takings: Survey Of A Constitutional Culture, James Valvo

James Valvo

Fifth Amendment property protections under the Takings Clause have grown increasingly contentious as governing entities have used regulations to limit what property owners can do with their land. This paper profiles regulatory takings jurisprudence from Pennsylvania Coal, to Penn Central, to Nollan and Dolan, and Tahoe-Sierra. The paper also examines conceptual constructs that have shaped the field’s evolution, including: the doctrine’s origin, the nuisance exception, the changed circumstances argument, unconstitutional conditions, temporary takings and the denominator problem.

Taney’S Zeno And Scalia’S Mobilia, Peter Aschenbrenner

Peter J. Aschenbrenner

Zeno’s most famous paradox (of motion) is related to us through Aristotle, who presents Zeno’s ‘problems’ in his Physics, 239b11-14. Aristotle “asserts (on Zeno’s behalf) the non-existence of motion on the ground that any object in locomotion must arrive at the half-way stage before it arrives at the goal.”

The Doctrine Of Stare Decisis In United States Supreme Court Opinions, Peter Aschenbrenner

Peter J. Aschenbrenner

OCL surveys United States Supreme Court cases from 1791 to 1900 for deployment of the phrase stare decisis in opinions and published arguments before the Court. The people, as Madison conceded, make their own precedents by approving (prior) official action taken by current officials as a foundation for resolving issues-of-the-day.

E Pluribus Unum: Liberalism's March To Be The Singular Influence On Civil Rights At The Supreme Court, Aaron J. Shuler

Aaron J Shuler

Rogers Smith writes that American political culture can best be understood as a blend of liberal, republican and illiberal ascriptive ideologies. The U.S. Supreme Court’s constitutional jurisprudence has largely reflected this thesis. While the Court moved away from permitting laws that explicitly construct hierarchies in the 20th century and made tepid references to egalitarian principles during the Warren Court, liberalism has prevailed in the majority of the Court’s decisions. Gains in civil rights through the Fourteenth Amendment’s Equal Protection and Substantive Due Process clauses were achieved primarily through liberal notions of de-regulation, a market economy and individual freedom. Conversely, State …

Wrongs Against Immigrants' Rights: Why Terminating The Parental Rights Of Deported Immigrants Raises Constitutional And Human Rights Concerns, Rachel C. Zoghlin

Rachel Claire Zoghlin

Since President Barack Obama first took office in January 2009, his administration has made immigration enforcement a top priority. In 2012, the U.S. government spent more money to deport immigrants – $18 billion – than on the FBI, Secret Service, DEA, U.S. Marshal Service and the Bureau of Alcohol, Tobacco, and Firearms combined. Since January 2009, the Obama administration has removed over 2.2 million immigrants. Of the over 211,000 individuals deported between January and June of 2011, nearly 22% (over 46,000) are parents of U.S.-citizen children. One collateral consequence of these deportations is that over 5,100 children have been placed …

Neoliberalism And The Law: How Historical Materialism Can Illuminate Recent Governmental And Judicial Decision Making, Justin Schwartz

Justin Schwartz

Neoliberalism can be understood as the deregulation of the economy from political control by deliberate action or inaction of the state. As such it is both constituted by the law and deeply affects it. I show how the methods of historical materialism can illuminate this phenomenon in all three branches of the the U.S. government. Considering the example the global financial crisis of 2007-08 that began with the housing bubble developing from trade in unregulated and overvalued mortgage backed securities, I show how the repeal of the Glass-Steagall Act, which established a firewall between commercial and investment banking, allowed this …

Public Choice Theory And Overcriminalization, Paul J. Larkin Jr.

Paul J Larkin Jr.

No abstract provided.

Book Review, Tom Ginsburg, Ed., Comparative Constitutional Design, Cameron C. Russell

Cameron C Russell

No abstract provided.

Sex, Drugs, Alcohol, Gambling, And Guns: The Synergistic Constitutional Effects, David B. Kopel, Trevor Burrus

David B Kopel

In this Article, we discuss the synergistic relationship between the wars‖ on drugs, guns, alcohol, sex, and gambling, and how that relationship has helped illegitimately increase the power of the federal government over the past century. The Constitution never granted Congress the general police power‖ to legislate on health, safety, welfare, and morals; the police power was reserved to the States. Yet over the last century, federal laws against guns, alcohol, gambling, and some types of sex have encroached on the police powers traditionally reserved to the states.

Congress‘s infringement of the States‘ powers over the health, safety, welfare, and …

Revisitando El Debate Sobre Los Abogados Integrantes Y La Independencia Del Poder Judicial, Sergio Verdugo Sverdugor@Udd.Cl, Carla Ottone

Sergio Verdugo R.

Se revisa el debate sobre la conveniencia del sistema de reemplazo judicial basado en los abogados integrantes y se analiza especialmente la crítica que sostiene que ellos no son independientes de los intereses del Poder Ejecutivo. Para ello, se examina el comportamiento de votación de los abogados integrantes de la tercera sala de la Corte Suprema en causas de indemnización de perjuicios donde el Fisco es parte, y se compara con la manera en que votan los ministros titulares. Se concluye que casi todos los jueces de esta sala votan de una manera generalmente favorable al interés fiscal, aunque esta …

Democratic Objection Against Judicial Review Of Legislation. Institutional Design Alternatives And Constitutional Theories, Sergio Verdugo Sverdugor@Udd.Cl

Sergio Verdugo R.

This article reviews the argument through which judicial review of legislation approved by popularly elected bodies, based on the authority of judges who are in a position of preeminence on the other branches of government, is contrary to democracy. Taking Jeremy Waldron´s argument as a central reference, the author discusses some of the assumptions on which the democratic objection of judicial review is elaborated. He argues that separating the notion of constitutional supremacy from the idea of judicial supremacy would allow building a model that overcomes the democratic problem. The author reviews some alternatives provided by institutional designs, and analyses …

Slaves To Contradictions: 13 Myths That Sustained Slavery, Wilson Huhn

Wilson R. Huhn

People have a fundamental need to think of themselves as “good people.” To achieve this we tell each other stories – we create myths – about ourselves and our society. These myths may be true or they may be false. The more discordant a myth is with reality, the more difficult it is to convince people to embrace it. In such cases to sustain the illusion of truth it may be necessary to develop an entire mythology – an integrated web of mutually supporting stories. This paper explores the system of myths that sustained the institution of slavery in the …