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Full-Text Articles in Law
The Common Law And The Constitution: John Locke And The Missing Link In Law, Steve Sheppard
The Common Law And The Constitution: John Locke And The Missing Link In Law, Steve Sheppard
Steve Sheppard
Locke's concept of rights influenced the Framers of the Constitution, which has increased the stakes in later interpretation of what Locke’s model of rights entailed. “Lockean rights” now suggests a perfect right unlimitable by the state in the public interest. Such a right is theoretically interesting, but it is not what Locke had in mind, and it was not the model of rights Madison, Jefferson, Hamilton, and other inherited from Locke's Second Treatise.
This paper was an initial reconstruction of Locke's model of a right, locating it within the legal culture of his time and place. His model of what …
The Originalist And Normative Case Against Judicial Activism: A Reply To Professor Randy Barnett, Steven G. Calabresi
The Originalist And Normative Case Against Judicial Activism: A Reply To Professor Randy Barnett, Steven G. Calabresi
Michigan Law Review
In Restoring the Lost Constitution: The Presumption of Liberty, Professor Randy E. Barnett lays out a bold defense of the theory of originalism in constitutional interpretation. Professor Barnett's book is perhaps the most important book about originalism since Robert H. Bork's The Tempting of America. Barnett presents a normative case as to why contemporary Americans should agree to be governed by the original meaning of the Constitution, and, like most sophisticated originalists, he nicely distinguishes between original meaning and original intent. Barnett correctly notes that what really matters in constitutional interpretation is not what the Framers intended that provision …
Bork Was The Beginning: Constitutional Moralism And The Politics Of Judicial Selection, Gary L. Mcdowell
Bork Was The Beginning: Constitutional Moralism And The Politics Of Judicial Selection, Gary L. Mcdowell
Law Faculty Publications
On October 23, 1987, the United States Senate committed what many considered then-and what many still consider today-to be an unforgivable political and constitutional sin. Wielding its power to advise and consent on nominations to the Supreme Court of the United States, the upper house voted 58-42 not to confirm Judge Robert H. Bork. The vote, which was the largest margin of defeat in history for a nominee to the Supreme Court, concluded one of the most tumultuous political battles in the history of the republic, a battle that would transform the process of judicial selection for years to come.
Justice Scalia's Constitution--And Ours, Kermit Roosevelt Iii
Justice Scalia's Constitution--And Ours, Kermit Roosevelt Iii
All Faculty Scholarship
No abstract provided.
Originalism And Formalism In Criminal Procedure: The Triumph Of Justice Scalia, The Unlikely Friend Of Criminal Defendants?, Stephanos Bibas
Originalism And Formalism In Criminal Procedure: The Triumph Of Justice Scalia, The Unlikely Friend Of Criminal Defendants?, Stephanos Bibas
All Faculty Scholarship
In Crawford v. Washington, Justice Scalia's majority opinion reinterpreted the Confrontation Clause to exclude otherwise reliable testimonial hearsay unless the defendant has been able to cross-examine it. In Blakely v. Washington, Justice Scalia's majority opinion required that juries, not judges, find beyond a reasonable doubt all facts that trigger sentences above ordinary sentencing-guidelines ranges. Crawford and Blakely are prime case studies in the strengths, weaknesses, and influence of originalism and formalism in criminal procedure. Crawford succeeded because it cleared away muddled case law, laid a strong foundation in the historical record, and erected a simple, solid, workable rule. …