Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Constitutional Law

2007

Constitutional law

Institution
Publication
Publication Type
File Type

Articles 1 - 30 of 67

Full-Text Articles in Law

“We The People” Through Young Eyes, Alan E. Garfield Sep 2007

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

Alan E Garfield

No abstract provided.


Does Due Process Have An Original Meaning? On Originalism, Due Process, Procedural Innovation . . . And Parking Tickets, Lawrence Rosenthal Sep 2007

Does Due Process Have An Original Meaning? On Originalism, Due Process, Procedural Innovation . . . And Parking Tickets, Lawrence Rosenthal

Lawrence Rosenthal

Originalism – the view that constitutional provisions should be interpreted as they were “understood at the time of the law’s enactment” – is the ascendant method of constitutional interpretation. In particular, originalists argue that the Constitution's open-ended provisions should be interpreted in light of their generally understood legal meaning at the time of their framing. An originalist view of due process -- entitling civil and criminal defendants to those procedures considered "due" at the time of framing -- would accordingly condemn any number of innovations in criminal and civil procedures' that alter framing-era procedural rights, such as the novel systems …


Religious Exemptions And The Common Good: A Reply To Professor Carmella, Laura S. Underkuffler Sep 2007

Religious Exemptions And The Common Good: A Reply To Professor Carmella, Laura S. Underkuffler

West Virginia Law Review

No abstract provided.


Establishment Clause Limits On Free Exercise Accommodations, Kent Greenawalt Sep 2007

Establishment Clause Limits On Free Exercise Accommodations, Kent Greenawalt

West Virginia Law Review

No abstract provided.


The Establishment Clause And Religious Expression In Government Settings: Four Variables In Search Of A Standard, Daniel O. Conkle Sep 2007

The Establishment Clause And Religious Expression In Government Settings: Four Variables In Search Of A Standard, Daniel O. Conkle

West Virginia Law Review

No abstract provided.


Responsible Freedom Under The Religion Clauses: Exemptions, Legal Pluralism, And The Common Good, Angela C. Carmella Sep 2007

Responsible Freedom Under The Religion Clauses: Exemptions, Legal Pluralism, And The Common Good, Angela C. Carmella

West Virginia Law Review

No abstract provided.


Substantive Neutrality Revisited, Douglas Laycock Sep 2007

Substantive Neutrality Revisited, Douglas Laycock

West Virginia Law Review

No abstract provided.


When Accommodations For Religion Violoate The Establishment Clause: Regularizing The Supreme Court's Analysis, Carl H. Esbeck Sep 2007

When Accommodations For Religion Violoate The Establishment Clause: Regularizing The Supreme Court's Analysis, Carl H. Esbeck

West Virginia Law Review

No abstract provided.


Reconciling The Irreconcilable: Military Chaplains And The First Amendment, Steven K. Green Sep 2007

Reconciling The Irreconcilable: Military Chaplains And The First Amendment, Steven K. Green

West Virginia Law Review

No abstract provided.


Instruments Of Accommodation: The Military Chaplaincy And The Constitution, Ira C. Lupu, Robert W. Tuttle Sep 2007

Instruments Of Accommodation: The Military Chaplaincy And The Constitution, Ira C. Lupu, Robert W. Tuttle

West Virginia Law Review

No abstract provided.


Life After The Establishment Clause, Steven G. Gey Sep 2007

Life After The Establishment Clause, Steven G. Gey

West Virginia Law Review

No abstract provided.


Agenda: The Future Of Natural Resources Law And Policy, University Of Colorado Boulder. Natural Resources Law Center, Rocky Mountain Mineral Law Foundation Jun 2007

Agenda: The Future Of Natural Resources Law And Policy, University Of Colorado Boulder. Natural Resources Law Center, Rocky Mountain Mineral Law Foundation

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

The Natural Resources Law Center's 25th Anniversary Conference and Natural Resources Law Teachers 14th Biennial Institute provided an opportunity for some of the best natural resources lawyers to discuss future trends in the field. The conference focused on the larger, cross-cutting issues affecting natural resources policy. Initial discussions concerned the declining role of scientific resource management due to the increased inclusion of economic-cost benefit analysis and public participation in the decision-making process. The effectiveness of this approach was questioned particularly in the case of non-market goods such as the polar bear. Other participants promoted the importance of public participation and …


The Growing Influence Of Tort And Property Law On Natural Resources Law: Case Studies Of Coal Bed Methane Development And Geologic Carbon Sequestration, Alexandra B. Klass Jun 2007

The Growing Influence Of Tort And Property Law On Natural Resources Law: Case Studies Of Coal Bed Methane Development And Geologic Carbon Sequestration, Alexandra B. Klass

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

19 pages.

"Alexandra B. Klass, Associate Professor of Law, University of Minnesota Law School"


Law Casebook Description And Table Of Contents: Constitutional Environmental And Natural Resources Law [Outline], Jim May, Robin Craig Jun 2007

Law Casebook Description And Table Of Contents: Constitutional Environmental And Natural Resources Law [Outline], Jim May, Robin Craig

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

6 pages.

"James May, Widener University School of Law" -- Agenda


Law's Religion: Rendering Culture, Benjamin L. Berger Apr 2007

Law's Religion: Rendering Culture, Benjamin L. Berger

Osgoode Hall Law Journal

This article argues that constitutional law's inability to deal with religion in a satisfying way flows, in part, from its failure to understand religion as, in a robust sense, culture. Once one begins to understand the Canadian constitutional rule of law itself as a cultural form, it becomes apparent that law renders religion in a very particular fashion, and that this rendering is a product of law's symbolic categories and interpretive horizons. This article draws out the elements of Canadian constitutionalism's unique rendering of religion and argues that, although Canadian constitutionalism claims to understand religion as a culture, this is …


Localism And The West Virginia Constitution, Robert M. Bastress Jr. Apr 2007

Localism And The West Virginia Constitution, Robert M. Bastress Jr.

West Virginia Law Review

No abstract provided.


The Future Of Footnote Four, Dan T. Coenen Apr 2007

The Future Of Footnote Four, Dan T. Coenen

Scholarly Works

The Supreme Court's decision in United States v. Carolene Products Co. generated the most famous footnote-and perhaps the most famous passage-in all of the American Judiciary's treatment of constitutional law. Among other things, Footnote Four suggested that "prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry." The importance of this principle cannot be overstated. It pervaded the work of the Warren Court and has played a prominent role …


After 150 Years, Worst Supreme Court Decision Ever Continues To Haunt, F. Michael Higginbotham Mar 2007

After 150 Years, Worst Supreme Court Decision Ever Continues To Haunt, F. Michael Higginbotham

All Faculty Scholarship

In 1857, the Supreme Court rendered a decision in Dred Scott v. Sandford, declaring that it had no jurisdiction to hear Dred Scott's claim to freedom because he was black and, therefore, not a citizen of the United States. This article argues that not only was the decision morally reprehensible, it was also based on an erroneous interpretation of the Constitution.


Geographic Representation And The U.S. Congress, Frances E. Lee Jan 2007

Geographic Representation And The U.S. Congress, Frances E. Lee

Maryland Law Review

No abstract provided.


An Expressive Jurisprudence Of The Establishment Clause, Ivan E. Bodensteiner, Alex Geisinger Jan 2007

An Expressive Jurisprudence Of The Establishment Clause, Ivan E. Bodensteiner, Alex Geisinger

Law Faculty Publications

No abstract provided.


Toward A Limited-Government Theory Of Extraterritorial Detention, Robert Knowles, Marc D. Falkoff Jan 2007

Toward A Limited-Government Theory Of Extraterritorial Detention, Robert Knowles, Marc D. Falkoff

Law Faculty Publications

No abstract provided.


The Path To (And From?) Judicial Independence (Reviewing Charles Gardner Geyh, When Courts And Congress Collide: The Struggle For Control Of America’S Judicial System (2006), Robert C. Power Jan 2007

The Path To (And From?) Judicial Independence (Reviewing Charles Gardner Geyh, When Courts And Congress Collide: The Struggle For Control Of America’S Judicial System (2006), Robert C. Power

Robert C Power

No abstract provided.


Looking Off The Ball: Constitutional Law And American Politics, Mark A. Graber Jan 2007

Looking Off The Ball: Constitutional Law And American Politics, Mark A. Graber

Faculty Scholarship

“Looking Off the Ball” details how and why constitutional law influences both judicial and public decision making. Treating justices as free to express their partisan commitments may seem to explain Bush v. Gore*, but not the judicial failure to intervene in the other numerous presidential elections in which the candidate favored by most members of the Supreme Court lost. Constitutional norms and standards generate legal agreements among persons who dispute the underlying merits of particular policies under constitutional attack. The norms and standards explain constitutional criticism, why only a small proportion of the political questions that occupy Americans are normally …


The Right To Contract: Use Of Domestic Partnership As A Strategic Alternative To The Right To Marry Same-Sex Partners, Dara Purvis Jan 2007

The Right To Contract: Use Of Domestic Partnership As A Strategic Alternative To The Right To Marry Same-Sex Partners, Dara Purvis

Journal Articles

Shortly after the Civil War, a series of cases argued that the Civil Rights Act of 1866 gave black Americans the right to make contracts, including a marriage contract, with whomever they chose. While the cases were almost uniformly unsuccessful at that time, this paper argues that claims based on private contracts replicating some of marriage’s benefits, stripped of the social and religious freight of marriage, are more compelling. State constitutional amendments banning not only marriage, but any legal recognition of a marriage-like relationship, demonstrate that animus underlies the prohibitions and that the amendments violate the Equal Protection Clause even …


The People Or The State?: Chisholm V. Georgia And Popular Sovereignty, Randy E. Barnett Jan 2007

The People Or The State?: Chisholm V. Georgia And Popular Sovereignty, Randy E. Barnett

Georgetown Law Faculty Lectures and Appearances

Chisholm v. Georgia was the first great constitutional case decided by the Supreme Court. In Chisholm, the Court addressed the fundamental question: Who is Sovereign? The People or the State? It adopted an individual concept of popular sovereignty rather than the modern view that limits popular sovereignty to collective or democratic self-government. It denied that the State of Georgia was a sovereign entitled, like the King of England, to assert immunity from a lawsuit brought by a private citizen. Despite all this, Chisholm is not among the canon of cases that all law students are taught. Why not? In this …


How To Think About Voter Fraud (And Why), Chad Flanders Jan 2007

How To Think About Voter Fraud (And Why), Chad Flanders

All Faculty Scholarship

In recent months, debates over voter fraud have consumed state legislatures and blogs, courts and election commissions. The prevailing way of framing that debate has been in terms of numbers and statistics: how much voter fraud is there, and does the amount of voter fraud justify new measures to prevent it? In my essay, I argue for a shift away from statistical analysis and towards normative discourse. Only if we understand why (and whether) voter fraud is bad will we be able to decisively settle debates about what should be done about it, if anything.

The first part of my …


Juvenile Curfews: Political Pandering At The Expense Of A Fundamental Right, Toni L. Conner Jan 2007

Juvenile Curfews: Political Pandering At The Expense Of A Fundamental Right, Toni L. Conner

West Virginia Law Review

No abstract provided.


Marbury In Mexico: Judicial Review’S Precocious Southern Migration, M C. Mirow Jan 2007

Marbury In Mexico: Judicial Review’S Precocious Southern Migration, M C. Mirow

Faculty Publications

In attempting to construct United States-style judicial review for the Mexican Supreme Court in the 1880s, Ignacio Vallarta, president of the court, read Marbury in a way that preceded this use of the case in the United States. Using this surprising fact as a central example, this article makes several important contributions to the field of comparative constitutional law. The work demonstrates that through constitutional migration, novel readings of constitutional sources can arise in foreign fora. In an era when the United States Supreme Court may be accused of parochialism in its constitutional analysis, the article addresses the current controversy …


Demystifying Social Welfare: Foundations For Constitutional Design, Joe Oppenheimer, Norman Frohlich Jan 2007

Demystifying Social Welfare: Foundations For Constitutional Design, Joe Oppenheimer, Norman Frohlich

Maryland Law Review

No abstract provided.


Slavery And The Marshall Court: Preventing “Oppressions Of The Minor Party”?, Leslie Friedman Goldstein Jan 2007

Slavery And The Marshall Court: Preventing “Oppressions Of The Minor Party”?, Leslie Friedman Goldstein

Maryland Law Review

No abstract provided.