Law Commons^™

Congressional Authority To Interpret The Thirteenth Amendment: A Response To Professor Tsesis, Jennifer Mason Mcaward

Schmooze 'tickets'

No abstract provided.

Involuntary Servitude, Public Accommodations Laws, And The Legacy Of Heart Of Atlanta Motel V. United States , Linda C. Mcclain

Schmooze 'tickets'

No abstract provided.

Why Originalism Is Of So Little Use In Interpreting The Thirteenth Amendment, Henry L. Chambers

Schmooze 'tickets'

The 13th Amendment affords two very different visions. One vision limits the 13th Amendment’s scope to ending slavery and involuntary servitude without more. The second expands the 13th Amendment’s scope to include an anti-subordination principle. Proponents of both visions rely on originalism to support their visions. Unfortunately, originalism does not help us reach a clearly correct conclusion regarding the scope of the 13th Amendment.

That is fine, because the core question regarding the interpretation of the 13th Amendment ought to be whether the amendment is constitutionally transformative. That is, does the 13th Amendment announce a constitutional principle that requires that …

Getting Right Without Lincoln, Daniel W. Hamilton

Schmooze 'tickets'

This short piece is taken from a review of the three important books considered below. This review is part of my current exploration of the historiography of slavery and the Constitution in Civil War legal history.

Brian McGinty, Lincoln and the Court; Stephen C. Neff, Justice in Blue and Gray: A Legal History of the Civil War; Lea VanderVelde, Mrs. Dred Scott: A Life on Slavery’s Frontier

The Slavery And Involuntary Servitude Of Immigrant Workers: Two Sides Of The Same Coin, Maria L. Ontiveros

Schmooze 'tickets'

No abstract provided.

Liberalism, The Thirteenth Amendment, And The Seeds Of Destruction Of Reconstruction, Leslie F. Goldstein

Schmooze 'tickets'

No abstract provided.

Congressional Authority To Interpret The Thirteenth Amendment, Alexander Tsesis

Schmooze 'tickets'

No abstract provided.

The Thirteenth Amendment And Constitutional Theory, Earl Maltz

Schmooze 'tickets'

No abstract provided.

The Thirteenth Amendment And The Meaning Of Familial Bonds, Julie Novkov

Schmooze 'tickets'

No abstract provided.

States Rights, Southern Hypocrisy, And The Crisis Of The Union, Paul Finkelman

Schmooze 'tickets'

No abstract provided.

The Enduring Legacy Of The Thirteenth Amendment, Robert J. Kaczorowski

Schmooze 'tickets'

No abstract provided.

James Ashley And The Thirteenth Amendment, Rebecca E. Zietlow

Schmooze 'tickets'

No abstract provided.

A Grievance Based Interpretation Of The Thirteenth Amendment, Lea Vandervelde

Schmooze 'tickets'

No abstract provided.

The Reconstruction Power, Jack M. Balkin

Schmooze 'tickets'

No abstract provided.

Slavery And The Phenomenology Of Torture, Sanford Levinson

Schmooze 'tickets'

No abstract provided.

Constitutional Politics, Constitutional Law, And The Thirteenth Amendment, Michael Les Benedict

Schmooze 'tickets'

No abstract provided.

Honest Debate At Core Of Constitution, Alan E. Garfield

Alan E Garfield

No abstract provided.

What Mcdonald Means For Unenumerated Rights, A. Christopher Bryant

Faculty Articles and Other Publications

In June a splintered Supreme Court held in McDonald v. City of Chicago that the Second Amendment applied to state and local governments. But the case was about much more than handguns. It presented the Court with an unprecedented opportunity to correct its own erroneous precedent and revive the Fourteenth Amendment’s Privileges or Immunities Clause. The plurality declined the offer not, as Justice Alito’s opinion suggested, out of a profound respect for stare decisis, but rather because at least four Justices like the consequences of that ancient error, especially insofar as unenumerated rights are concerned. This observation in turn raises …

Popular Constitutionalism On The Right: Lessons From The Tea Party, Christopher W. Schmidt

All Faculty Scholarship

In this Article, I consider the lessons that the Tea Party offers for scholars of popular constitutionalism. Specifically, I argue that the experience of the Tea Party should spark a reconsideration of some assumptions that tend to drive much of the interest in popular constitutionalism. Some who have embraced popular constitutionalism seem to assume that popular constitutional mobilization is a vehicle particularly well suited for advancing progressive constitutional claims. Alternately, some have assumed that popular constitutionalism has no particular ideological or partisan valence - that it is basically a neutral vehicle for advancing constitution claims of all kinds. But the …

Constitutionality Of The Patient Protection And Affordable Care Act Under The Commerce Clause And The Necessary And Proper Clause, Wilson Huhn

Akron Law Faculty Publications

The Patient Protection and Affordable Care Act is a comprehensive federal statute that attempts to extend health insurance coverage to tens of millions of Americans and to expand health insurance coverage by eliminating exclusions for preexisting conditions, increase medical loss ratios, abolish annual and lifetime limits, and other reforms. A necessary provision of this law (the individual mandate) requires most individuals to maintain health insurance coverage. The individual mandate has been challenged in a number of lawsuits on the ground that Congress lacks the power under the Constitution to require individuals to purchase health insurance. The power of Congress to …

Constitutional Rigidity In Kosovo: Significance, Outcomes, And Rationale, Fisnik Korenica, Dren Doli

Pace International Law Review Online Companion

This article discusses the issue of constitutional rigidity from the perspective of the Constitution of Kosovo. At the outset, the article analyzes the amendment procedure within the Constitution and its nature in terms of the actors and procedures involved. Next, the article questions the nature of constitutional rigidity in Kosovo and seeks to address the position of veto players. Arguing that the Constitution of Kosovo is rather rigid, the article then questions the significance of constitutional rigidity in light of the model of separation of powers, human rights, and the Constitutional Court’s constitutional “updating” role. The article concludes that constitutional …

Standing On Holy Ground: How Rethinking Justiciability Might Bring Peace To The Establishment Clause, John M. Bickers

John M. Bickers

The Establishment Clause is home to both procedural and substantive disorder. Particularly in evaluating religious speech by the government, the Supreme Court applies any of a number of distinct tests, with varying degrees of strictness. At the same time, the Court has articulated a series of requirements necessary for a plaintiff to have standing to challenge government action, only to ignore them in government religious speech cases. The resulting lack of clarity leaves lower courts to their own devices in endeavoring to calm increasingly intense struggles. This article sets out a theory that altering one of these problems can correct …

Plus Or Minus One: The Thirteenth And Fourteenth Amendments, Mark A. Graber

Faculty Scholarship

The consensus that the Fourteenth Amendment incorporates the Thirteenth Amendment has come under sharp criticism in recent years. Several new works suggest that the Thirteenth Amendment, properly interpreted, protects some substantive rights not protected by the Fourteenth Amendment. Some of this scholarship is undoubtedly motivated by an effort to avoid hostile Supreme Court precedents. Nevertheless, more seems to be going on than mere litigation strategy. Scholars detected different rights and regime principles in the Thirteenth Amendment than they find in the Fourteenth Amendment. The 2011 Maryland Constitutional Law Schoomze, to which this is an introduction, provided an opportunity for law …

Constitutionality Of The Patient Protection And Affordable Care Act Under The Commerce Clause And The Necessary And Proper Clause, Wilson Huhn

Wilson R. Huhn

The Patient Protection and Affordable Care Act is a comprehensive federal statute that attempts to extend health insurance coverage to tens of millions of Americans and to expand health insurance coverage by eliminating exclusions for preexisting conditions, increase medical loss ratios, abolish annual and lifetime limits, and other reforms. A necessary provision of this law (the individual mandate) requires most individuals to maintain health insurance coverage. The individual mandate has been challenged in a number of lawsuits on the ground that Congress lacks the power under the Constitution to require individuals to purchase health insurance. The power of Congress to …

Biodefense And Constitutional Constraints, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

The United States and United Kingdom have different approaches to quarantine law that reflect each country’s unique historical context and constitutional structure. Under the Tudors, England vested quarantine authority in the monarch, with its subsequent exercise conducted by the military. As the constitutional structure changed, the manner in which quarantine was given effect subtly shifted, leading to constitutional reforms. Authorities transferred first to the Privy Council and, subsequently, to Parliament, where commercial interests successfully lobbied them out of existence. By the end of the 19th Century, quarantine authorities had been pushed down to the local port authorities. In the United …

The Four Pillars Of Constitutional Doctrine, Suzanna Sherry

Vanderbilt Law School Faculty Publications

Constitutional interpretation, and thus constitutional doctrine, is inevitably controversial. Judges, scholars, lawyers, politicians, and the American public all disagree among themselves, not only about the correct constitutional outcome but even about the right approach to constitutional interpretation. We are unlikely to reach consensus on whether we should read the Constitution as a living and evolving document or instead read it in accordance with a fixed original meaning, much less on whether it does or does not protect campaign contributions, reproductive rights, affirmative action policies, gun ownership, or any of the other contested issues that have recently come before the Supreme …

Sacrifice And Sacred Honor: Why The Constitution Is A "Suicide Pact", Peter Brandon Bayer

Scholarly Works

Most legal scholars and elected officials embrace the popular clich6 that "the Constitution is not a suicide pact." Typically, those commentators extol the "Constitution of necessity," the supposition that Government, essentially the Executive, may take any action-may abridge or deny any fundamental right-to alleviate a sufficiently serious national security threat. The "Constitution of necessity" is wrong. This Article explains that strict devotion to the "fundamental fairness" principles of the Constitution's Due Process Clauses is America's utmost legal and moral duty, surpassing all other considerations, even safety, security and survival.

The analysis begins with the most basic premises: the definition of …

Beyond Formalist Sovereignty: Who Can Represent "We The People Of The United States" Today?, David Chang

University of Richmond Law Review

No abstract provided.

Aryans, Gender, And American Politics, Robert Tsai

Articles in Law Reviews & Other Academic Journals

This short essay discusses some of the ways in which the Aryan movement in America activates gendered beliefs for the goal of legal, political, and cultural transformation. In recent years, the community has moved from common law theories of white sovereignty to more robust forms of racial constitutionalism. The piece is drawn from "America's Forgotten Constitutions: Defiant Visions of Power and Community"

Comparing And Contrasting The Constitutional Approaches Of Justice Scalia And Justice Breyer Through The Pending Supreme Court Case Schwarzenegger V Entertainment Merchants Association, Katherine E. Moran Ms.

CMC Senior Theses

The aim of this thesis is to explore the differences and similarities between Justice Antonin Scalia’s textualist approach to interpreting the Constitution and Justice Stephen Breyer’s Living Constitution approach (also called the evolutionist approach) by applying these disparate legal theories to Schwarzenegger v Entertainment Merchants Association, a case currently pending before the Supreme Court whose resolution centers on the interpretation of the First Amendment. The textualist approach relies primarily on interpreting the original meaning of the text of the Constitution, and attempting to decide cases in a way that is faithful to an amendment’s words as written (Rossum et …