Foreword: Private And Public Revisited Once Again,
2015
University of Maryland Francis King Carey School of Law
Foreword: Private And Public Revisited Once Again, Mark A. Graber
Maryland Law Review
No abstract provided.
Privacy, Police Power, And The Growth Of Public Power In The Early Twentieth Century: A Not So Unlikely Coexistence,
2015
University of Maryland Francis King Carey School of Law
Privacy, Police Power, And The Growth Of Public Power In The Early Twentieth Century: A Not So Unlikely Coexistence, Carol Nackenoff
Maryland Law Review
No abstract provided.
Neuro Lie Detection And Mental Privacy,
2015
University of Maryland Francis King Carey School of Law
Neuro Lie Detection And Mental Privacy, Madison Kilbride, Jason Iuliano
Maryland Law Review
New technologies inevitably raise novel legal questions. This is particularly true of technologies, such as neuro lie detection, that offer new ways to investigate crime. Recently, a number of scholars have asked whether neuro lie detection testing is constitutional. So far, the debate has focused on the Fifth Amendment—specifically whether evidence gathered through neuro lie detection is constitutionally admissible because it is “physical” in nature or inadmissible because it is “testimonial” in nature. Under current Supreme Court doctrine, this Fifth Amendment debate is intractable. However, the more fundamental question of whether the government can compel individuals to undergo a neuro …
Evangelical Reform And The Paradoxical Origins Of The Right To Privacy,
2015
University of Maryland Francis King Carey School of Law
Evangelical Reform And The Paradoxical Origins Of The Right To Privacy, John W. Compton
Maryland Law Review
No abstract provided.
Some Dilemmas In Drawing The Public/Private Distinction In New Deal Era State Constitutional Law,
2015
University of Maryland Francis King Carey School of Law
Some Dilemmas In Drawing The Public/Private Distinction In New Deal Era State Constitutional Law, Keith Whittington
Maryland Law Review
No abstract provided.
Historians And The New Originalism: Contextualism, Historicism, And Constitutional Meaning,
2015
Fordham University School of Law
Historians And The New Originalism: Contextualism, Historicism, And Constitutional Meaning, Martin S. Flaherty
Fordham Law Review
Toward that end, this Foreword addresses three matters. First, it considers why the use of history in constitutional interpretation is inescapable. Next, it suggests that the Essays in this forum do not go far enough in debunking the idea of “public meaning” originalism as a serious alternative to previous approaches. Finally, the balance of this Foreword reviews the also perhaps inescapable misuses of history that constitutional interpretation invites and considers the type of misuse that public meaning originalism represents.
Historicism And Holism: Failures Of Originalist Translation,
2015
Stanford University
Historicism And Holism: Failures Of Originalist Translation, Jonathan Gienapp
Fordham Law Review
For as long as the U.S. Constitution has existed, Americans have appealed to the history of its creation to interpret its meaning. But only since the advent of originalism—the well-known constitutional theory that requires interpreting the Constitution today in accordance with its original meaning—has historical study been so immediately implicated by constitutional interpretation. Despite potential, though, for meaningful exchange between originalists and historians, little has taken place. That originalism plays an ever-growing role in contemporary political culture only makes the lack of dialogue all the more unfortunate.
“To Assemble Together For Their Common Good”: History, Ethnography, And The Original Meanings Of The Rights Of Assembly And Speech,
2015
Fordham University School of Law
“To Assemble Together For Their Common Good”: History, Ethnography, And The Original Meanings Of The Rights Of Assembly And Speech, Saul Cornell
Fordham Law Review
The Whiskey Rebellion is not generally a major focus in constitutional histories or casebooks. Given this fact, it is hardly surprising that the 1795 case Respublica v. Montgomery seldom figures as more than a minor footnote in scholarly writing about early American constitutional development, if it receives any attention at all. The case has little precedential value for modern First Amendment doctrine and only obliquely implicates larger jurisprudential questions about the rights of assembly and freedom of expression. In strictly doctrinal terms, Montgomery is primarily about the obligation of a justice of the peace to put down a riot, not …
Outsourcing The Law: History And The Disciplinary Limits Of Constitutional Reasoning,
2015
Sydney Law School
Outsourcing The Law: History And The Disciplinary Limits Of Constitutional Reasoning, Helen Irving
Fordham Law Review
Debates about the use of history in constitutional interpretation find their primary nourishment in the originalism debate. This has generated a vast amount of literature, but also narrowed the terms of the debate. Originalism is a normative commitment wrapped in a questionable methodological confidence. Regardless of the multiple forms originalism takes, originalists are confident that the meaning (in the sense of intention) that animated the framing of the Constitution can be ascertained and, indeed, that they can ascertain it. The debate has largely focused, then, on whether modern-day scholars and jurists can ascertain original historical meaning or, alternatively, whether they …
Tone Deaf To The Past: More Qualms About Public Meaning Originalism,
2015
Stanford University
Tone Deaf To The Past: More Qualms About Public Meaning Originalism, Jack Rakove
Fordham Law Review
With some apologies for a vast degree of oversimplification, let us stipulate that there are two main forms of originalism. One is known as “semantic” or “public meaning” originalism. Its leading advocates include Lawrence Solum, Keith Whittington, and Randy Barnett (professional friends, all). The leading premise of semantic originalism is that the meaning of the constitutional text—or, more specifically, of its individual clauses—was fixed at the moment of its adoption. Under this view, the goal of constitutional interpretation is to recover that original meaning, and the best way to do that pivots on reconstructing how an informed reader, whether a …
A Critical Assessment Of The Role Of The Venice Commission In Processes Of Domestic Constitutional Reform,
2015
Singapore Management University
A Critical Assessment Of The Role Of The Venice Commission In Processes Of Domestic Constitutional Reform, Maartje De Visser
Research Collection Yong Pung How School Of Law
On January 26, 2014, an overwhelming majority of the National Constituent Assembly of Tunisia approved the country's new constitution. Drafted in the aftermath of the Tunisian revolution, the constitution received considerable international critical acclaim, regarding the manner in which the text had been drafted and adopted as well as its content, notably the entrenchment of a host of fundamental rights and liberties. Comparisons have inevitably been drawn with Egypt's new constitution and those of other Arab nations, with the Tunisian text hailed as one of the most progressive in the region, providing the foundations for a modern and credible democracy. …
Telescoping And Collectivizing Religious Free Exercise Rights,
2015
University of Maryland Francis King Carey School of Law
Telescoping And Collectivizing Religious Free Exercise Rights, Henry L. Chambers Jr
Maryland Law Review
No abstract provided.
The Federalist Provenance Of The Principle Of Privacy,
2015
University of Maryland Francis King Carey School of Law
The Federalist Provenance Of The Principle Of Privacy, Elvin T. Lim
Maryland Law Review
The right to privacy is the centerpiece of modern liberal constitutional thought in the United States. But liberals rarely invoke “the Founding” to justify this right, as if conceding that the right to privacy was somehow a radical departure from “original meaning,” perhaps pulled out of the hat by “activist” judges taking great interpretive liberties with the constitutional text. Far from being an unorthodox and modern invention, I argue here that privacy is a principle grounded in the very architecture of the Constitution as enumerated in its Articles, perhaps even more so than in particular sections of the Bill of …
A Conceptual Disaster Zone Indeed: The Incoherence Of The State And The Need For State Action Doctrine(S),
2015
University of Maryland Francis King Carey School of Law
A Conceptual Disaster Zone Indeed: The Incoherence Of The State And The Need For State Action Doctrine(S), Brookes Brown
Maryland Law Review
No abstract provided.
December 1, 2015: What Really Fuels Isis?,
2015
Duquesne University
December 1, 2015: What Really Fuels Isis?, Bruce Ledewitz
Hallowed Secularism
Blog post, “What Really Fuels ISIS?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.
Conflicts Originalism: The "Original Content" Of The Full Faith And Credit Clause And The Compulsory Choice Of Marriage Law,
2015
Albany Law School
Conflicts Originalism: The "Original Content" Of The Full Faith And Credit Clause And The Compulsory Choice Of Marriage Law, J. Sephen Clark
West Virginia Law Review
No abstract provided.
Before There Were Mouseholes: Resurrecting The Non-Delegation Doctrine,
2015
Brigham Young University Law School
Before There Were Mouseholes: Resurrecting The Non-Delegation Doctrine, Joel Hood
Brigham Young University Journal of Public Law
No abstract provided.
The Lost History Of The Political Question Doctrine,
2015
William & Mary Law School
The Lost History Of The Political Question Doctrine, Tara Leigh Grove
Faculty Publications
This Article challenges the conventional narrative about the political question doctrine. Scholars commonly assert that the doctrine, which instructs that certain constitutional questions are “committed” to Congress or to the executive branch, has been part of our constitutional system since the early nineteenth century. Furthermore, scholars argue that the doctrine is at odds with the current Supreme Court’s view of itself as the “supreme expositor” of all constitutional questions. This Article calls into question both claims. The Article demonstrates, first, that the current political question doctrine does not have the historical pedigree that scholars attribute to it. In the nineteenth …
Specifically Authorized By Binding Precedent Does Not Mean Suggested By Persuasive Precedent: Applying Good-Faith Exception After Davis V. United States,
2015
Campbell University School of Law
Specifically Authorized By Binding Precedent Does Not Mean Suggested By Persuasive Precedent: Applying Good-Faith Exception After Davis V. United States, Zachary C. Bolitho
West Virginia Law Review
No abstract provided.
Emergency Takings,
2015
Brooklyn Law School
