Law Commons^™

The Bill Of Rights And Originalism, Gerard V. Bradley

Journal Articles

Professor Bradley begins the final installment of the University of Illinois Law Review's year-long tribute to the Bill of Rights by proposing that the first ten Amendments, like the Constitution itself, be interpreted according to the original understanding of their ratifiers. Professor Bradley, though, narrows the scope of the exegetical inquiry to what he proposes is the only sound originalism - plain meaning, historically recovered. Professor Bradley argues that interpreting the Bill of Rights according to the text's plain meaning among persons politically active at the time of drafting avoids both the inflexibility and philosophical deficiencies of "snapshot" conservative originalism …

The Sleeper Wakes: The History And Legacy Of The Twenty-Seventh Amendment, Richard B. Bernstein

Articles & Chapters

No provision of the United States Constitution has a more drawn-out, tortured history than the Twenty-seventh Amendment, which was ratified more than two centuries after Representative James Madison introduced it in the First Congress.

In this Article, Professor Bernstein traces the Amendment's origins to the legislative political culture of the late eighteenth century, as influenced by the controversy over ratifying the Constitution. He then examines the perennial controversies over congressional compensation in American history, elucidating how in the 1980s and 1990s public anger at Congress reached critical mcm sufficient to propel the 1789 compensation amendment into the Constitution. Finally, this …

Natural Rights And Positive Law: A Comment On Professor Mcaffee's Paper, Philip A. Hamburger

Faculty Scholarship

Were the rights retained by the people defined by positive law? This is the issue explored by Professor McAffee and various other scholars who dispute the history of the Ninth Amendment. Surveying the work of these other historians, Professor McAffee distinguishes between those who argue that the framers and ratifiers were "positivists" and those who attribute to the framers and ratifiers a so-called "natural-law" or "natural-rights" perspective-the latter being the view that the rights retained by the people included rights not delineated by the United States Constitution. McAffee rejects this latter point of view in favor of the positivist interpretation …