Law Commons^™

Interpreting The Fourteenth Amendment: Two Don'ts And Three Dos, Garrett Epps

All Faculty Scholarship

A sophisticated reading of the legislative record of the framing of the Fourteenth Amendment can provide courts and scholars with some general interpretive principles to guide their application of the Amendment to current legal problems. The author argues that two common legal conceptions about the Amendment are, in fact, misconceptions. The first is that the Amendment was chiefly concerned with the immediate situation of freed slaves in the former slave states. Instead, he argues, the legislative record suggests that the framers were broadly concerned with the rights not only of freed slaves but also of foreign-born immigrants in the North …

A Wolf In Sheep’S Clothing: The Unilateral Executive And The Separation Of Powers, Thomas J. Cleary

The University of New Hampshire Law Review

[Excerpt] “The United States Constitution vests all executive powers in a president. This is the unitary executive theory. By virtue of this, many believe the president is vested with the power to act unilaterally. This is the unilateral executive theory. However, the unilateral executive portends more than action. In reality, the unilateral executive theory provides an opportunity to implement a unilateral agenda. Thus, the aim of this paper is to consider executive power, the separation of powers, and the unilateral executive theory to determine if presidential power under the separation of powers doctrine is actually “a wolf in sheep’s clothing.” …

Emergency Federalism: Calling On The States In Perilous Times, Adam M. Giuliano

University of Michigan Journal of Law Reform

The attacks of September 11 prompted a historic debate concerning terrorism and domestic emergency response. This ongoing dialogue has driven policy decisions touching upon both liberty and security concerns. Yet despite the enormous effort that has gone into the national response, the role of the sovereign states, and with it federalism, has received comparatively little attention. This Article explores the relevance of federalism within the context of the "War on Terror" and in the aftermath of Hurricane Katrina. Acknowledging that theories of federalism developed elsewhere are insufficient, he outlines a doctrine of 'emergency federalism.' The author argues that the Framers …

“We The People” Through Young Eyes, Alan E. Garfield

Alan E Garfield

No abstract provided.

Rule Of Law Conference: Global Issues And The Rule Of Law, Lord Chief Justice Nicholas Phillips Of Worth Matravers

University of Richmond Law Review

No abstract provided.

The Constitution Of Terror: Big Lies, Backlash Jurisprudence, And The Rule Of Law In The United States Today, Francisco Valdes

Nevada Law Journal

No abstract provided.

Reading, Writing, And Race: The Constitutionality Of Educational Strategies Designed To Teach Racial Literacy, Michael J. Kaufman

University of Richmond Law Review

No abstract provided.

Love V. Virginia: The Constitutionality Of The Marshall/Newman Amendment, Pavitra Mohan Ram

ExpressO

My comment explores the constitutionality of a recent amendment in Virginia, the Marshall/Newman Amendment, which bans gay marriage and civil unions between unmarried people, and precludes Virginia from recognizing such arrangements formed in other states. The analysis is particularly timely, because even though the Democrats have regained a majority in Congress, and a traditionally Republican Virginian constituency just elected a Democratic senator, a majority of Virginians adopted this Amendment, indicating conservative values still reign.

The comment argues that the Amendment is demonstrably inconsistent with the mandates of the Fourteenth Amendment of the Federal Constitution. The first provision seeks to ban …

Constitution Day, 2007, Robert Berry

Librarian Publications

Robert Berry, the research librarian for the social sciences at the Ryan Matura Library, has written an essay about the Constitution and the American founding, on the occasion of Constitution Day 2007 at Sacred Heart University.

A Proposal To Rescue New York Times V. Sullivan By Promoting A Responsible Press, Benjamin Barron

American University Law Review

No abstract provided.

Civil Liberties In Uncivil Times: The Perilous Quest To Preserve American Freedoms, Kenneth Lasson

All Faculty Scholarship

The perilous quest to preserve civil liberties in uncivil times is not an easy one, but the wisdom of Benjamin Franklin should remain a beacon: "Societies that trade liberty for security end often with neither." Part I of this article is a brief history of civil liberties in America during past conflicts. Part II describes various actions taken by the government to conduct the war on terrorism - including invasions of privacy, immigration policies, deportations, profiling, pre-trial detentions, and secret military tribunals. Part III analyzes the serious Constitutional questions raised by the government's actions in fighting terrorism. The thesis throughout …

The Protection Of Religious Freedom Under The American Constitution, Robert A. Sedler

Law Faculty Research Publications

No abstract provided.

The Constitution, The Courts And The Common Law, Robert A. Sedler

Law Faculty Research Publications

No abstract provided.

The Constitution Of Palestine: "The State In Development", Leonid G. Berlyavskiy

Leonid G. Berlyavskiy

Constitution of Palestine is an example of the constitutional act of the so-called "states in development" that is, being at the stage of development. The planned for the autumn of 2000 declaration of "the State the Palestine" has not taken place, however the constitution is considered working. According to the fundamental law Palestine is the parliamentary republic with rather extensive powers of the president, and is the unitary state.

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

Robert G. Natelson

This article surveys the principles of 18th century fiduciary law that the Founders incorporated into the U.S. Constitution-- principles they referred to as rules of "public trust." The article also suggests standards the courts can use to determine if particular congressional appropriations are within the "general welfare" limitation of the Constitution's so-called Spending Clause

Tempering The Commerce Power, Robert G. Natelson

Robert G. Natelson

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 …

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

Robert G. Natelson

The United States Congress claims plenary and exclusive power over federal affairs with the Indian tribes, based primarily on the Constitution’s Indian Commerce Clause. This article is the first comprehensive analysis of the original meaning of, and understanding behind, that constitutional provision. The author concludes that, as originally understood, congressional power over the tribes was to be neither plenary nor exclusive.

Foreword: Making Sense Of An Eighteenth-Century Constitution In A Twenty-First-Century World, Mark A. Graber

Faculty Scholarship

The Maryland Constitutional Law Schmooze, "An Eighteenth-Century Constitution in a Twenty-First-Century World" explores the interpretive and political challenges inherent in recourse to an ancient text for resolving political questions. Although no Essay cites Quentin Skinner, the debates between participants in the Schmooze and this Symposium mirror the debates between Skinner and his critics. Some participants insist that crucial aspects of an eighteenth-century text remain vibrant at present, that contemporary political life would be improved by more careful study of the Constitution. Others blame crucial pathologies of American politics on a combination of too careful study of and too uncritical veneration …

Dred Scott: Tiered Citizenship And Tiered Personhood, Henry L. Chambers, Jr.

Law Faculty Publications

Part I of this brief essay discusses Dred Scott and the Court's acceptance of tiered citizenship and tiered personhood. Part II discusses the Reconstruction Amendments as a response to tiered citizenship and tiered personhood. Part III notes two issues-felon disfranchisement and the treatment of detainees in the War on Terror-that help illuminate tiered citizenship and tiered personhood and help us evaluate the conditions under which citizenship and personhood rights may be restricted without creating tiers of citizenship and tiers of personhood.

The Foreign Affairs Power: Does The Constitution Matter?, D. A. Jeremy Telman

Law Faculty Publications

No abstract provided.

Bruce Ledewitz, American Religious Democracy: Coming To Terms With The End Of Secular Politics, Thomas A. Schweitzer

Scholarly Works

No abstract provided.

The Double Standard In Judicial Selection, Edwin Meese Iii

University of Richmond Law Review

No abstract provided.

Section 1983 Civil Rights Litigation In The October 2005 Term, Martin Schwartz

Touro Law Review

No abstract provided.

Why Supermajoritarianism Does Not Illuminate The Interpretive Debate Between Originalists And Non-Originalists, Ethan J. Leib

Faculty Scholarship

In A Pragmatic Defense of Originalism, they seek to explain why supermajoritarianism furnishes a new pragmatic defense of originalism. In this Essay, I dispute each of their substantive claims. First, I argue that there is nothing newly pragmatic about their defense. Although they claim to want to make originalists and pragmatists friends, nothing about their project is likely to accomplish this matchmaking. Second, I argue that there is no reason to believe that constitutional entrenchments produced under supermajoritarian decision rules are any more desirable as a general matter than rules produced under other, more relaxed, decision rules. At the core …

Originalism And The Natural Born Citizen Clause, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

The enigmatic phrase "natural born citizen" poses a series of problems for contemporary originalism. New originalists, like Justice Scalia, focus on the public meaning of the constitutional text, but the notion of a "natural born citizen" was likely a term of art, derived from the idea of a "natural born subject" in English law--a category that most likely did not extend to persons, like John McCain, who were born outside sovereign territory. But the constitution speaks of "citizens" and not "subjects," introducing uncertainties and ambiguities that might (or might not) make McCain eligible for the presidency.

What was the original …

Federalism And The Commerce Clause: A Comparative Perspective, Reuven S. Avi-Yonah

Articles

The U.S. Supreme Court has on numerous occasions addressed the constitutionality of state taxes under the U.S. Constitution (most often under the Commerce Clause, but sometimes under the Equal Protection and Due Process Clauses). In general, the Supreme Court has granted wide leeway to the states to adopt any tax system they wish, only striking down the most egregious cases of discrimination against out-of-state residents. Thus, for example, the Court has generally refused to intervene against state tax competition to attract business into the state. It has twice upheld a method of calculating how much income of a multinational enterprise …

Restoring The Lost World Of Classical Legal Thought: The Presumption In Favor Of Liberty Over Law And The Court Over The Constitution, Thomas B. Mcaffee

Scholarly Works

In 1998, legal historian William M. Wiecek published a book outlining the basic legal ideology that brought us the “Lochner era” in Supreme Court decision-making. It was fittingly entitled, The Lost World of Classical Legal Thought in America: Law and Ideology, 1886-1937. Wiecek demonstrated that the “classical” legal thought that generated the “libertarian” decision-making of the Lochner era, which occurred during the first third or so of the twentieth century, was the attempt to bring Lockean political principles directly to bear on the task of interpreting the 1787 Constitution in the post-Reconstruction era. In 2004, Professor Randy E. Barnett contends …

Mostly Unconstitutional: The Case Against Precedent Revisited, Gary S. Lawson

Faculty Scholarship

In Part I of this Article, the author briefly recaps the argument against precedent that the author sketched in The Constitutional Case Against Precedent. Although the author’s purpose here is to refine that argument, the author still believes that the original argument is right in most particulars, and it still functions as a prima facie case against the use of precedent in constitutional interpretation. In Part II, the author surveys different possible grounds for the practice of precedent. In Part III, the author dismisses the possibility that the Constitution or some other controlling legal source affirmatively commands the use of …

The Fourth Amendment Status Of Stored E-Mail: The Law Professors' Brief In Warshak V. United States, Susan Freiwald, Patricia L. Bellia

Journal Articles

This paper contains the law professors' brief in the landmark case of Warshak v. United States, the first federal appellate case to recognize a reasonable expectation of privacy in electronic mail stored with an Internet Service Provider (ISP). While the 6th circuit's opinion was subsequently vacated and reheard en banc, the panel decision will remain extremely significant for its requirement that law enforcement agents must generally acquire a warrant before compelling an ISP to disclose its subscriber's stored e-mails. The law professors' brief, co-authored by Susan Freiwald (University of San Francisco) and Patricia L. Bellia (Notre Dame) and signed by …

What Should We Celebrate On Constitution Day?, Alan Garfield

Alan E Garfield

Congress recently created a new national observance, Constitution Day, to be marked each year on September 17th. This observance presents a valuable opportunity for the vastly diverse American populace to celebrate its shared values. But what, exactly, should Americans celebrate about the Constitution? The Constitution’s text is hardly perfect, and judicial interpretations of the Constitution are themselves problematic. To identify what Americans should celebrate on Constitution Day, this article sets out to identify the Constitution’s core meaning for Americans. To do so, it first draws lessons from two contemporary Establishment Clause disputes (one over the teaching of intelligent design and …