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Full-Text Articles in Law
The Death Of The Evolving Standards Of Decency, Meghan J. Ryan
The Death Of The Evolving Standards Of Decency, Meghan J. Ryan
Faculty Journal Articles and Book Chapters
The Eighth Amendment Punishments Clause is in jeopardy. The constitutionality of punishments is usually judged according to the “evolving standards of decency that mark the progress of a maturing society.” And in evaluating these standards, the Court has traditionally looked to changing societal views on punishment. This is a living constitution approach to interpretation, and the Eighth Amendment is the only area of law in which the Court has consistently and explicitly ap-plied such an approach. But a living constitution approach is diametrically opposed to the current Court’s focus on originalism. This is the first originalist Court in history, and …
Judicial Supremacy And Its Discontents, Dale Carpenter
Judicial Supremacy And Its Discontents, Dale Carpenter
Faculty Journal Articles and Book Chapters
This essay examines judicial supremacy and some of its discontents, old and new. Part I surveys the curiously quiet posture of the public and their representatives today on the issue of judicial supremacy. Part II contrasts this quiet with other eras when neither the people nor their representatives willingly accepted judicial supremacy. Part III considers the views of two important contemporary critics of judicial supremacy who write from very different constitutional and political perspectives.
Michael Paulsen argues that the President, as head of the coordinate and equal executive branch of the national government, has the power to interpret the Constitution …
Nea V. Finley: A Decision In Search Of A Rationale, Lackland H. Bloom Jr.
Nea V. Finley: A Decision In Search Of A Rationale, Lackland H. Bloom Jr.
Faculty Journal Articles and Book Chapters
Debate has raged over whether Congress can constitutionally restrict, or at least influence, the ability of the National Endowment for the Arts (“NEA”) to award grants to artists and institutions for the creation or display of art work that a significant segment of the public would consider highly offensive. In the October 1997 Term, the Supreme Court, by an 8-1 margin in NEA v. Finley, upheld section 954(d), a 1991 congressional amendment to the NEA Act that requires the Chairperson of the NEA to ensure that, in establishing regulations and procedures for assessing artistic excellence and artistic merit, “general standards …