Constitutional Law Commons^™

A Republic, Not A Democracy? Initiative, Referendum, And The Constitution's Guarantee Clause, Robert G. Natelson

Robert G. Natelson

This article debunks the myth, first arising in the 1840s, that the Founders sharply distinguished between a "republic" and a "democracy." It explains that by a "republic," most of the Founders meant a government controlled by the citizenry, following the rule of law, and without a king. Accordingly, state provisions for initiative and referendum are fully consistent with the Constitution's requirement that each state have a republican form of government; in fact, most of the governments the Founders called "republics" had featured analogous forms of direct democracy.

Paper Money And The Original Understanding Of The Coinage Clause, Robert G. Natelson

Robert G. Natelson

Over a century ago, the Supreme Court decided the Legal Tender Cases, holding that Congress could authorize legal tender paper money in addition to metallic coin. In recent years, some commentators have argued that this holding was incorrect as a matter of original understanding or original meaning, but that any other holding would be absolutely inconsistent with modern needs. They further argue that the impracticality of functioning without paper money demonstrates that originalism is not a workable method of constitutional interpretation. Those who rely on the Legal Tender Cases to discredit originalism are, however, in error. This Article shows that …

Clemency, Parole, Good-Time Credits, And Crowded Prisons: Reconsidering Early Release, Paul J. Larkin Jr.

Paul J Larkin Jr.

Traditionally, the criminal justice system used executive clemency, parole statutes, and good-time credit laws to grant prisoners an early relief for various reasons, such as to encourage and reward efforts toward rehabilitation and to ease prison overcrowding. The replacement of rehabilitation with incapacitation as the principal justification for criminal punishment over the last 30 years, however, has resulted in an enormous expansion in the prison population. We need to ask whether we have arrived at a point where an overly punitive approach to corrections is hurting as many innocent parties as helping and whether we are generating more criminals than …

Memorandum Fourth Amendment Warrantless Search Consent Exception & Request For New Trial, Rosi Lehr

Rosi Lehr

The court correctly held the roommate’s consent was a valid exception to the warrant requirement of the Fourth Amendment because he has common authority and voluntarily consented. The district court correctly held the Judge’s response to the Jury’s question was not improper because he has broad discretion when responding to a jury’s request. Harmless error is error that does not affect the outcome of the case and may be found when the defendant cannot show the case was prejudiced by the Judge’s response

Comments On Law And Versteeg’S The Declining Influence Of The United States Constitution, Tom Ginsburg, Zachary Elkins, James Melton

Tom Ginsburg

No abstract provided.

Reciprocal Antidiscrimination Arguments, Yofi Tirosh

Yofi Tirosh

This Article addresses a common characteristic of antidiscrimination law: To what extent should one antidiscrimination campaign be held accountable for other, related, discriminatory structures that it does not and cannot purport to correct? Plaintiffs in antidiscrimination cases are sometimes expected to account for the larger social context in which their claim is made. Defendants invoke this larger context as a way of rebutting the discrimination claim, by arguing that the plaintiff’s claim has “discriminatory residue” that would exacerbate related discriminatory structures. For example, in a case in which same-sex couples seek the right to contract with surrogate mothers, the defendant …

The Uneasy Case For The Affordable Care Act, Stephen E. Sachs

Stephen E. Sachs

The constitutionality of the Affordable Care Act is sometimes said to be an "easy" question, with the Act's opponents relying more on fringe political ideology than mainstream legal arguments. This essay disagrees. While the mandate may win in the end, it won't be easy, and the arguments against it sound in law rather than politics. Written to accompany and respond to Erwin Chemerinsky's essay in the same symposium, this essay argues that each substantive defense of the mandate is subject to doubt. While Congress could have avoided the issue by using its taxing power, it chose not to do so. …

Constitutional Backdrops, Stephen E. Sachs

Stephen E. Sachs

The Constitution is often said to leave important questions unanswered. These include, for example, the existence of a congressional contempt power or an executive removal power, the role of stare decisis, and the scope of state sovereign immunity. Bereft of clear text, many scholars have sought answers to such questions in Founding-era history. But why should the historical answers be valid today, if they were never codified in the Constitution's text? This Article describes a category of legal rules that weren't adopted in the text, expressly or implicitly, but which nonetheless have continuing legal force under the written Constitution. These …

Translation To Portuguese Of "The Construction Of Constitutional Rights", By Robert Alexy, Silvio Roberto Oliveira De Amorim Junior

Silvio Roberto Oliveira de Amorim Junior

It is a translation made as a conclusion work for the discipline “Direito Administrativo, Constitucionalismo e Cidadania”, offered in the Masters in Law´s Course at “Universidade Federal de Sergipe”, and presented by Ph. D. Henrique Ribeiro Cardoso. The translation is about an article written by jurisconsult and philosopher Robert Alexy, published in The Berkeley Electronic Press, in the year of 2010, by means of which comment the construction of constitutional rights and its characteristic eminently related to principles. The article alludes, as well, to the use of proportionality, with special approach to the Weight Formula and to the happening of …

Clinton, Campaigns, And Corporate Expenditures: The Supreme Court's Recent Decision In Citizen's United And Its Impact On Corporate Political Influence, Glen M. Vogel

Glen M Vogel

The public’s ability to discuss and debate the character and fitness of presidential candidates is at the core of the First Amendment’s prohibition that “Congress shall make no law… abridging the Freedom of Speech.” Despite the existence of this fundamental right, articulated so eloquently in our founding document, in November of 2002, Congress made political speech a felony for one class of speakers – corporations and unions. Under the McCain-Feingold Campaign Finance Reform Law, corporations and unions were prohibited from spending their own funds in support of or against a candidate for political office. Violators of this ban faced up …

Correos Electrónicos De Autoridades Públicas: En Torno A Una Mala Caracterización Jurídica, Fernando Muñoz

Fernando Muñoz

Tal como una adecuada caracterización jurídica puede reportar grandes ventajas desde el punto de vista de la sistematicidad y coherencia del sistema jurídico, una mala caracterización puede significar desde una oportunidad perdida hasta un traspié con graves consecuencias.

A Constitutional And Empirical Analysis Of Iowa's Administrative Rules Review Committee Procedure, Jerry L. Anderson

Jerry L. Anderson

Iowa gives a joint legislative committee, called the Administrative Rules Review Committee, significant power over agency rulemaking. The ARRC can delay a rule, either for a 70-day period, or until the end of the next legislative session. It can also object to a rule, which switches the burden of proof to the agency in any future judicial challenge and makes the agency liable for the litigation costs of successful challengers. In this article, the authors study fifteen years of ARRC activity to determine how the committee has used its authority, in order to assess the degree to which this mechanism …

Images In/Of Law, Jessica M. Silbey

Jessica Silbey

The proliferation of images in and of law lends itself to surprisingly complex problems of epistemology and power. Understanding through images is innate; most of us easily understand images without thinking. But arriving at mutually agreeable understandings of images is also difficult. Translating images into shared words leads to multiple problems inherent in translation and that pose problems for justice. Despite our saturated imagistic culture, we have not established methods to pursue that translation process with confidence. This article explains how images are intuitively understood and yet collectively inscrutable, posing unique problems for resolving legal conflicts that demand common and …

The Modalities Of Constitutional Argument: A Primer, Ian C. Bartrum

Ian C Bartrum

This piece is a contribution to Linda Edwards upcoming book Readings In Persuasion: Briefs That Changed the World (forthcoming Wolters Kluwer). In it I offer a short primer on the modalities of constitutional argument, as Philip Bobbitt has described them. As someone who teaches Constitutional Law with the primary goal of educating future practitioners, I have always brought Bobbitt’s very practical (while also very theoretical) work into my classroom discussions. I have regularly used the first chapter of Bobbitt’s Constitutional Interpretation as introductory text on the subject, but I have sometimes found the reading to be too long and/or theoretical …

Constitutional Value Judgments And Interpretive Theory Choice, Ian C. Bartrum

Ian C Bartrum

Philip Bobbitt’s remarkable work describing the ‘modalities’ of constitutional argument is an immense contribution to the study of constitutional law. He describes a typology of six forms of argument alive in our interpretive practice, and offers a limited account of how these modalities interact, and sometimes conflict, in actual constitutional decisions. One of the persistent puzzles Bobbitt’s description leaves open, however, is how we should account for the choice between conflicting modalities in cases where that choice is likely outcome-determinative. Because the modalities are ‘incommensurable’—a term’s meaning in one modality may not be fully translatable into another—there is no internal …

授予法理下的公共财产保护：新加坡实践经验的借鉴 [Safeguarding Public Property Under Givings Jurisprudence: A Comparative Study Of Singapore And China], Jianlin Chen, Jiongzhe Cui

Jianlin Chen

与美国仅仅强调私人财产权利不同，中国同时重视公共财产与私人财产两方面的保护。然而目前中国的理论界没有对政府处理公共财产的不同行为之间的细微差别进行深入地观察与区分，进而忽视了这些行为有可能潜在地将公共财产转移给私人的事实。授予法理(givings jurisprudence)有助于分析中国现行公共财产保护制度的优点与不足。通过展示如何在授予法理下有效地保护公共财产，新加坡的实践经验可以为我们提供一个很好的研究范例。 In contrast with the emphasis of private property protection in the United States, public property protection featured prominently in China’s communist-influenced legal discourse. However, Chinese academics and scholars have thus far failed to appreciate the nuanced nature of the different types of government actions and their potential of creating/distributing private wealth. This article utilizes the case study of Singapore to demonstrate how the givings jurisprudence (i.e. the emphasis of ensuring beneficiaries of government actions pay fair value of the benefits received) constitute a critical pillar in the protection of public property.

Reducing The Drug War's Damage To Government Budgets, David B. Kopel, Trevor Burrus

David B Kopel

This Article examines ways that governments can mitigate the economic damage caused by the drug war. Part I details four specific legal reforms enacted in Colorado, which aim to reduce the problems of over-criminalization: Requiring a fiscal note for the creation of new statutory crimes; reducing drug possession from a felony to a misdemeanor; narrowing the scope of 'three strikes' laws, and; adjusting old sentences in light of new laws.

Part II explores the fiscal benefits of ending prohibition, such as reduced law enforcement costs and substantially increased tax revenues.

Part III analyzes the conflict between congressionally-imposed prohibition, and state …

How The British Gun Control Program Precipitated The American Revolution, David B. Kopel

David B Kopel

Abstract: This Article chronologically reviews the British gun control which precipitated the American Revolution: the 1774 import ban on firearms and gun powder; the 1774-75 confiscations of firearms and gun powder, from individuals and from local governments; and the use of violence to effectuate the confiscations. It was these events which changed a situation of rising political tension into a shooting war. Each of these British abuses provides insights into the scope of the modern Second Amendment.

From the events of 1774-75, we can discern that import restrictions or bans on firearms or ammunition are constitutionally suspect — at least …

The Ppaca In Wonderland, David B. Kopel, Gary Lawson

David B Kopel

The question whether the Patient Protection and Affordable Care Act (“PPACA”) is “unconstitutional” is thorny, not simply because it presents intriguing issues of interpretation but also because it starkly illustrates the ambiguity that often accompanies the word “unconstitutional.” The term can be, and often is, used to mean a wide range of things, from inconsistency with the Constitution’s text to inconsistency with a set of policy preferences. In this article, we briefly explore the range of meanings that attach to the term “unconstitutional,” as well as the problem of determining the “constitutionality” of a lengthy statute when only some portions …

The Great Gun Control War Of The Twentieth Century--And Its Lessons For Gun Laws Today, David B. Kopel

David B Kopel

A movement to ban handguns began in the 1920s in the Northeast, led by the conservative business establishment. In response, the National Rifle Association began to get involved in politics, and was able to defeat handgun prohibition. Gun control and gun rights became the subjects of intense political, social, and cultural battles for much of the rest of the 20th century, and into the 21st.

Often, the battles were a clash of absolutes: One side contended that there was absolutely no right to arms, that defensive gun ownership must be prohibited, and that gun ownership for sporting purposes could be, …