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Articles 1 - 13 of 13
Full-Text Articles in Law
Defending Against Projects Of Faction: Reforming The Congressional Investigation Process, John Sullivan
Defending Against Projects Of Faction: Reforming The Congressional Investigation Process, John Sullivan
Catholic University Law Review
Throughout American history, the power to investigate has been one of key powers of the U.S. Congress. This power, shaped by the Congress itself and the courts, has evolved into a critical tool used to hold parties accountable and to promote effective legislation for the American people. Yet as much as it can be used to further the interests of all Americans, so too can it be used to further a party’s own political agenda. Today, the congressional investigation process has become overly-politicized, misused for fundraising purposes, and overseen by members of Congress who are not investigators by trade.
As …
The Immorality Of Originalism, Jack M. Beermann
The Immorality Of Originalism, Jack M. Beermann
Catholic University Law Review
The central claim of this essay is that in interpreting the U.S. Constitution, it is immoral to choose original intent over social welfare, broadly conceived. Once this argument is laid out and defended on its own terms, I support the central claim with a variety of arguments, including the defective process pursuant to which the Constitution was enacted, the deeply flawed substantive content of the Constitution, the incongruity of fidelity to the views of a generation of revolutionaries, the current virtual imperviousness of the Constitution to amendment, the failure of the Constitution to resolve fundamental questions concerning the allocation of …
America’S Two Pastimes: Baseball And Constitutional Law; Review Of Adrian Vermeule, Common Good Constitutionalism, Paul J. Larkin
America’S Two Pastimes: Baseball And Constitutional Law; Review Of Adrian Vermeule, Common Good Constitutionalism, Paul J. Larkin
Catholic University Law Review
For the last 50 years, the two prevailing constitutional interpretation methodologies have been Originalism and Living Constitutionalism. The former treats the Constitution almost like a contract and demands that interpreters focus on the ordinary contemporary understanding its terms would have received when they became law. The latter treats the Constitution as a charter for the structure of a new government that would survive and mature as needed to protect both the nation and its people as new threats to government and civil liberties arise. Professor Adrian Vermeule’s book Common Good Constitutionalism offers a new approach to constitutional interpretation, one that …
Judicial Selection That Fails The Separation Of Powers, Stephen Ware
Judicial Selection That Fails The Separation Of Powers, Stephen Ware
Catholic University Law Review
Executive power should be constrained by checks and balances. The United States’ long and strong tradition of concerns about executive power, and its complementary tradition of Madisonian checks and balances on and to the executive, include the selection of supreme court justices. Neither the U.S. Constitution nor the constitution of any state places solely in the executive the power to appoint a justice to begin a new term on the (federal or state) supreme court. However, several states fail to constrain gubernatorial power in selecting justices to finish a term already started by another justice and these interim appointments are …
Sacred Spheres: Religious Autonomy As An International Human Right, Diana V. Thomson, Kayla A. Toney
Sacred Spheres: Religious Autonomy As An International Human Right, Diana V. Thomson, Kayla A. Toney
Catholic University Law Review
How should courts resolve thorny human rights disputes that arise within religious groups? According to an emerging international consensus, they shouldn’t. When a case involves sensitive internal decisions by a religious organization, such as choosing who is qualified to teach the faith, courts are increasingly taking a hands-off approach. This global consensus has formed across international treaties, tribunals, and domestic courts in European and American nations. Every major human rights instrument and many international and domestic courts recognize that religious freedom must extend to religious communities, especially houses of worship and schools where believers gather to practice their faith and …
Establishment As Tradition, Marc O. Degirolami
Establishment As Tradition, Marc O. Degirolami
Scholarly Articles
Traditionalism is a constitutional theory that focuses on concrete political and cultural practices, and the endurance of those practices before, during, and after the ratification of the Constitution, as the presumptive determinants of constitutional meaning and constitutional law. The Supreme Court has long interpreted traditionally but now says explicitly that it uses a method of “text, history, and tradition” in several areas of constitutional law. Foremost among these is the Establishment Clause. This Essay examines two questions about traditionalism, both of which concern the Establishment Clause in distinct but related ways. First, why has traditionalism had special salience in this …
Playing God In The 21st Century: How The Push For Human Embryonic Germline Gene Editing Sidelines Individual And Generational Autonomy, Anna E. Melo
Catholic University Journal of Law and Technology
Every four and a half minutes a child with a genetic birth defect is born in the United States. For some, these conditions are treatable and manageable, but sadly for others, they are a death sentence. Congenital malformations and chromosomal abnormalities are the leading cause of infant mortality. CRISPR-Cas9 presents hope for the future, a liberation from the heritable genetic shackles that a child would otherwise be trapped in. With such optimism for future applications of germline gene editing, there are also great concerns with what national and global limitations and auditing must be in place to permit “genetic hedging.” …
Practice-Based Constitutional Theories, J. Joel Alicea
Practice-Based Constitutional Theories, J. Joel Alicea
Scholarly Articles
This Feature provides the first full-length treatment of practice-based constitutional theories, which include some of the most important theories advanced in modern scholarship. Practice-based constitutional theories come in originalist and nonoriginalist—as well as conservative and progressive—varieties, and they assert that a constitutional theory should generally conform to our social practices about law. If, for example, it is part of our social practices for courts to apply a robust theory of stare decisis, then a constitutional theory that would require a less deferential theory of stare decisis is a less persuasive theory. Practice-based constitutional theorists would usually see it as a …
The Appropriate Appropriations Inquiry, Chad Squitieri
The Appropriate Appropriations Inquiry, Chad Squitieri
Scholarly Articles
The Supreme Court is set to hear oral argument this fall concerning whether the Consumer Financial Protection Bureau (CFPB) is unconstitutionally self-funded. The question presented in the case asks whether the statute establishing the CFPB’s self-funding scheme, 12 U.S.C. § 5497, “violates the Appropriations Clause.” But that question is incomplete at best, because although the Appropriations Clause requires that “appropriations” be “made by law,” the Appropriations Clause does not itself vest Congress with any authority to make “law” in the first place. Instead, Congress’s authority to make appropriations laws is vested in part by the Necessary and Proper Clause. Thus, …
The Originalist Jurisprudence Of Justice Samuel Alito, J. Joel Alicea
The Originalist Jurisprudence Of Justice Samuel Alito, J. Joel Alicea
Scholarly Articles
Since Justice Alito’s appointment to the Supreme Court in 2006, constitutional theorists have struggled with how to characterize his approach to constitutional adjudication. Many scholars have argued that “Justice Alito is not to any significant extent an originalist” but is, instead, “a methodological pluralist” who uses both originalist and non-originalist tools of constitutional adjudication. Others have contended that “Justice Alito’s jurisprudence is originali[st], though not in the traditional sense.”
Mysterizing Religion, Marc O. Degirolami
Mysterizing Religion, Marc O. Degirolami
Scholarly Articles
In this short essay, I suggest that "mysterizing" religion may change the stakes in some of the most controversial contemporary conflicts in law and religion. To mysterize (not a neologism, but an archaism) is to cultivate mystery about a subject, in the sense described above-to develop and press the view that a certain subject or phenom-enon is not merely unknown, but unknowable by human beings. At the very least, such mysteries are unknowable by those human beings who have charge of the secular legal order of earthly human affairs, Paul's "princes of this world." That is what I propose to …
Traditionalism Rising, Marc O. Degirolami
Traditionalism Rising, Marc O. Degirolami
Scholarly Articles
Constitutional traditionalism is rising. From due process to free speech, religious liberty, the right to keep and bear arms, and more, the Court made clear in its 2021 term that it will follow a method that is guided by “tradition.”
This paper is in part an exercise in naming: the Court’s 2021 body of work is, in fact, thoroughly traditionalist. It is therefore a propitious moment to explain just what traditionalism entails. After summarizing the basic features of traditionalism in some of my prior work and identifying them in the Court’s 2021 term decisions, this paper situates these recent examples …
Airdropping Justice: The Constitutionality Of Service Of Process Via Non-Fungible Token, Jenifer Jackson
Airdropping Justice: The Constitutionality Of Service Of Process Via Non-Fungible Token, Jenifer Jackson
Catholic University Journal of Law and Technology
No abstract provided.