Law Commons^™

Devil Take The Hindmost: Reform Considerations For States With A Constitutional Right To Bail, Jordan Gross

Faculty Law Review Articles

This Article submits that any meaningful discussion of bail reform at the state level must be jurisdiction-specific, and it must account for the practical, historical, and philosophical aspects of the state constitutional right to bailability. Part II of this Article is an overview of the origins and history of English and American bail law. Part III describes the role and regulation of commercial bail bonding in the United States. Part IV traces the history and current state of bail reform in the United States. Part V considers legal and practical barriers to reform unique to right-to-bail states, particularly jurisdictions without …

Fish And Wildlife Management On Federal Lands: Debunking State Supremacy, Sandra B. Zellmer, Martin Nie, Christopher Barnes, Jonathan Haber, Julie Joly, Kenneth Pitt

Faculty Law Review Articles

This Article reviews the authority of federal and state governments to manage wildlife on federal lands. It first describes the most common assertions made by state governments regarding state powers over wildlife and then analyzes the relevant powers and limitations of the United States Constitution and federal land laws, regulations, and polices. Wildlife-specific provisions applicable within the National Park System, National Wildlife Refuge System, National Forest System, Bureau of Land Management, the special case of Alaska, and the National Wilderness Preservation System are covered, as is the Endangered Species Act. We reviewed an extensive collection of cases of conflict between …

The Federalist Safeguards Of Politics, Anthony Johnstone

Faculty Law Review Articles

This Article argues that states do and should play as important a role as the federal government in articulating and implementing the law governing state political processes, or in formal terms, their republican forms of government.20 The argument has four parts. Part I introduces the basic meaning of the guarantee and its amendment. Beyond a consensus that holds our republicanism to require basic political equality, various perfectionist conceptions of a republican form of government diverge, giving way to the essential pluralism of republican governments in a federal system. Part II explains how the Supreme Court, Congress, and the Executive are …

The Fallacy Of Judicial Supermajority Clauses In State Constitutions, Sandra B. Zellmer, Kathleen Miller

Faculty Law Review Articles

No abstract provided.

Outside Influence, Anthony Johnstone

Faculty Law Review Articles

This article considers how much outside influence matters to the constitutional analysis of state politics. It defends the political community principle applied in Bluman v. Federal Election Comm’n as an exception to the otherwise universal speaker-neutrality rule of Citizens United v. Federal Election Comm’n. It draws parallels between efforts to police national and state boundaries in politics, and the competing rights claims of outsiders to cross those boundaries and participate fully in domestic politics. The article suggests that the structural constitutional principle of political community supports certain state regulations of outside influence across a range of political activities. Part I …

Response: Commandeering Information (And Informing The Commandeered), Anthony Johnstone

Faculty Law Review Articles

This article is a response to Can the States Keep Secrets from the Federal Government? by Robert Mikos. The author amplifies and extends Professor Mikos's first point, which identifies the commandeering problem and suggests some limits to his second point, which proposes a judicially managed solution.

If Skilling Can't Get A Change Of Venue, Who Can? Salvaging Common Law Implied Bias Principles From The Wreckage Of The Constitutional Pretrial Publicity Standard, Jordan Gross

Faculty Law Review Articles

Fifty years ago, the United States Supreme Court issued three landmark decisions recognizing local pretrial publicity and community hostility in a charging venue as extraneous forces that can impact jurors’ ability to be constitutionally impartial. It later held that local prejudice can be so incompatible with a defendant’s right to an impartial jury that a trial in that community violates due process and may require a change in venue. Paradoxically, successful venue challenges under this federal constitutional pretrial publicity standard have become increasingly rare even as the volume, sensationalism, and pervasiveness of media coverage of criminal trials have increased with …

Foreword: The State Of The Republican Form Of Government In Montana, Anthony Johnstone

Faculty Law Review Articles

This foreword to the 2012 Browning Symposium contributes to the discussion of republican forms of government in the states by situating Montana's experience in broader themes of federal intervention in state republicanism. It serves as an epilogue to match Jeff Wiltse's prologue, which reexamines the election in 1912 that gave birth to the Corrupt Practices Act by examining the aftermath of the U.S. Supreme Court's burial of that law 100 years later.

Part I of the foreword considers the recent federal constitutional challenges that dismantled elements of the republican form of government that prevailed in Montana for the past century. …

A Madisonian Case For Disclosure, Anthony Johnstone

Faculty Law Review Articles

This article suggests that Citizens United provides an opportunity to reconsider the relationship between campaign finance disclosure and the First Amendment and that unless that relationship is strengthened at a constitutional level, this opportunity may be lost beneath an accretion of poorly developed doctrine. The article points out that new legislation and litigation is already testing the disclosure issue in the lower courts and will arrive at the Supreme Court in due course. The article questions whether the shallow roots of the information interest now underlying disclosure may fully support the kinds of rules necessary to make disclosure of sophisticated …

The State-Application-And-Convention Method Of Amending The Constitution: The Founding Era Vision, Robert G. Natelson

Faculty Law Review Articles

No abstract provided.

Proposing Constitutional Amendments By Convention: Rules For Governing The Process, Robert G. Natelson

Faculty Law Review Articles

Much of the mystery surrounding the Constitution's state-application-and-convention amendment process is unnecessary as history and case law enable us to resolve most questions. This article is the first in legal literature to access the full Founding-Era record on the subject, including the practices of inter-colonial and interstate conventions held during the 1770s and 1780s. Relying on that record, together with post-Founding practices, understandings, and case law, this article clarifies the rules governing applications and convention calls, and the roles of legislatures and conventions in the process. The goal of the article is objective exposition rather tan advocacy or special pleading.

Preemption By Stealth, Sandra B. Zellmer

Faculty Law Review Articles

By making federal law supreme to state law, the U.S. Constitution gives Congress "an extraordinary power." Perhaps the extraordinarily powerful nature of the Supremacy Clause is the reason for its checkered treatment by the Supreme Court. Recent preemption decisions give lip service to federalism concerns, but in many cases state statutes, regulations, and remedies have been struck down with little regard for either federal-state comity or institutional competence. If federal regulatory regimes always accomplished optimal regulation perfect equipoise between protecting human health and promoting economic development while fostering innovation by governments and regulated entities-preemption of state law would be far …

Mississippi River Stories: Lessons From A Century Of Unnatural Disasters, Sandra B. Zellmer, Christine A. Klein

Faculty Law Review Articles

In the wake of Hurricane Katrina, the nation pondered how a relatively weak Category 3 storm could have destroyed an entire region. Few appreciated the extent to which a flawed federal water development policy transformed this apparently natural disaster into a "manmade" disaster; fewer still appreciated how the disaster was the predictable, and indeed predicted, sequel to almost a century of similar disasters. This Article focuses upon three such stories: the Great Flood of 1927, the Midwest Flood of 1993, and Hurricanes Katrina and Rita of 2005. Taken together, the stories reveal important lessons, including the inadequacy of engineered flood …

The Founders' Hermeneutic: The Real Original Understanding Of Original Intent, Robert G. Natelson

Faculty Law Review Articles

This article re-examines the controversial question of whether the American Founders believed their own subjective understandings should guide future interpretation of the U.S. Constitution, or whether they thought the constitutional construction should be guided only by objective public meaning or some other hermeneutic standard.

The Original Understanding Of The Indian Commerce Clause, Robert G. Natelson

Faculty Law Review Articles

This article is a comprehensive analysis of the original meaning of and understanding behind the Constitution's Indian Commerce Clause under which Congress claims plenary and exclusive power over federal affairs with Indian tribes. The author concludes that, as originally understood, congressional power over the tribes was to be neither plenary nor exclusive.

Tempering The Commerce Power, Robert G. Natelson

Faculty Law Review Articles

The Supreme Court's modern interpretation of the Necessary and Proper Clause in the realm of interstate commerce is textually problematic, unfaithful to the Constitution's original meaning, and contains positive incentives for Congress to over-regulate. The Necessary and Proper Clause was intended to embody the common law doctrine of principals and incidents, and the Court should employ that doctrine as its interpretive benchmark. The common law doctrine contains less, although some, bias toward over-regulation, and it is flexible enough to adapt to changing social conditions. Adherence to the common law doctrine would markedly improve Commerce Power jurisprudence and reduce incentives for …

Judicial Review Of Special Interest Spending: The General Welfare Clause And The Fiduciary Law Of The Founders, Robert G. Natelson

Faculty Law Review Articles

This article explores the fiduciary law of the founding fathers to determine whether it was part of the constitutional design for the Judiciary to review special interest appropriations, and, if so, how the courts might proceed. The author’s findings suggest that, at least from the standpoint of the original understanding of the Constitution, prior judicial deference to the Legislature has been excessive and that there are solid constitutional grounds in arguing for a more searching standard of review.

The Legal Meaning Of Commerce In The Commerce Clause, Robert G. Natelson

Faculty Law Review Articles

In this article the author inquires into the meaning of the legal term "commerce" at the the time the Constitution was written, debated, and ratified. The article provides additional support for the conclusion that, for reasons of policy and politics, the founding generation inserted this conceptual and legal boundary into the Constitution and the clear inference from these findings collectively is that the Commerce Clause was designed to give Congress jurisdiction over the law merchant insofar as it pertained to interjurisdictional activities, which was the same jurisdiction that pre-Revolution American pamphleteers had conceded to Parliament.

Part I examines contending definitions …

The Original Meaning Of The Establishment Clause, Robert G. Natelson

Faculty Law Review Articles

The article builds on Establishment Clause studies conducted by Noah Feldman and Philip Hamburger, which utilize ratification materials to explain the founding generation's free exercise ideology and the emergence of the Establishment Clause from that ideology. In this article, the author demonstrates how the "religion terms" of the Gentlemen's Agreement clarifies the meaning of the Establishment Clause so that persistent interpretive difficulties largely disappear.

Fundamental Human Rights Compared In Two Progressive Constitutions: Japan And Montana, Fritz Snyder

Faculty Law Review Articles

This article focuses on certain of the fundamental or inalienable rights of the Japan Constitution and compares and contrasts them with their counterparts in the Montana Constitution.

The Constitution And The Public Trust, Robert G. Natelson

Faculty Law Review Articles

This article explores whether the recurrent references to the public trust were merely empty phrases or whether it really was a "general purpose" of the founders to impose fiduciary standards on the federal government. Part II lists some fiduciary duties potentially applicable to government. Part III summarizes the process by which the Constitution was drafted, debated, and ratified. Part IV examines works by some of the founder's favorite authors and who, the author finds, frequently advocated imposing fiduciary standards on government officials. Part V discusses the role of public trust concepts in the drafting, submission, and ratification of the Constitution. …

The Agency Law Origins Of The Necessary And Proper Clause, Robert G. Natelson

Faculty Law Review Articles

In this article the author suggests that the meaning of the Necessary and Proper Clause has seemed unclear to modern commentators because they have not been looking in the right place. In Part II the author subjects the Necessary and Proper Clause to textual analysis, incorporating in that analysis the eighteenth century definitions of words and shows why textual analysis alone cannot clarify some uncertainties. Part III examines the drafting history of the Clause at the federal constitutional convention, concluding that the primary drafters intended it to incorporate concepts from contemporary agency law, specifically the doctrine of implied incidental agency …

The Constitutional Contributions Of John Dickinson, Robert G. Natelson

Faculty Law Review Articles

This article explores the contributions of John Dickinson to the Constitution and as a member of the Continental Congress. Part II provides a brief biography of John Dickinson through the ratification debates. Part II discusses Dickinson's political philosophy. Part IV examines Dickinson's philosophy in action at the Constitutional Convention.

The Enumerated Powers Of States, Robert G. Natelson

Faculty Law Review Articles

In this article, the author distills the essence of the federalists' enumeration of state powers for the benefit of the ratifying public. The article concludes that the listed items strongly suggest that a guiding principle of American federalism is a Coasean one: externalities and/or interdependence, without more, generally do not serve as constitutional justification for further centralization.

The General Welfare Clause And The Public Trust: An Essay In Original Understanding, Robert G. Natelson

Faculty Law Review Articles

This article examines the three traditional interpretations of the General Welfare Clause -- first, that it is a plenary grant of regulatory and spending power to Congress; second, that it is a plenary grant of spending power only; and third, that it is not a grant of power at all. The author finds severe textual problems with the first and second interpretations and his historical analysis confirms that those interpretations have little basis in original understanding. The third view, says the author, is the most textually sound.

Part II of the article addresses prior studies of the General Welfare Clause …

"No Armed Bodies Of Men" -- Montanans' Forgotten Constitutional Right (With Some Passing Notes On Recent Environmental Rights Cases), Robert G. Natelson

Faculty Law Review Articles

This article discusses whether Article II, Section 33 of the Montana Constitution is targeted at importations of "armed bodies of men" by the government, by private parties, or by both. The article also reviews recent "environmental rights" decisions by the Montana Supreme Court to illustrate some problems in judicial review of a constitutional right against private parties.

What Spending Clause? (Or The President's Paramour): An Examination Of The Views Of Hamilton, Madison, And Story On Article I, Section 8, Clause 1 Of The United States Constitution, Jeffrey T. Renz

Faculty Law Review Articles

This article tests three interpretations of the General Welfare Clause that persisted prior to the U.S. v. Butler decision against the text of the Constitution and discusses historical conditions that add to the understanding of that clause of the U.S. Constitution. Specifically, the author examines: the "strong" Hamiltonian interpretation, the Madison interpretation, and the "weak" Hamiltonian or Story interpretation. The author concludes that in the course of testing each hypothesis, a surprising conclusion was reached: all interpretations failed to survive.

Sacrificing Legislative Integrity An The Altar Of Appropriations Riders: A Constitutional Crisis, Sandra B. Zellmer

Faculty Law Review Articles

No abstract provided.