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Full-Text Articles in Law
Common Law Constitutionalism, The Constitutional Common Law, And The Validity Of The Individual Mandate, Abigail R. Moncrieff
Common Law Constitutionalism, The Constitutional Common Law, And The Validity Of The Individual Mandate, Abigail R. Moncrieff
Law Faculty Articles and Essays
The paper proceeds as follows. Part I describes the constitutional common law and its interactions with common-law constitutionalism. Part II uses the fight over the constitutionality of the Patient Protection and Affordable Care Act (ACA) and its so-called "individual mandate" as a case study to flesh out the core differences between common-law constitutionalism and constitutional common law. Part III argues that a viable justification for a living constitution needs to embrace and defend the courts' essentially political nature, confronting head-on the (skyscraper) originalists' sense that courts should never do politics.
Saving The Press Clause From Ruin: The Customary Origins Of A 'Free Press' As Interface To The Present And Future, Kevin F. O'Neill, Patrick J. Charles
Saving The Press Clause From Ruin: The Customary Origins Of A 'Free Press' As Interface To The Present And Future, Kevin F. O'Neill, Patrick J. Charles
Law Faculty Articles and Essays
Based on a close reading of original sources dating back to America's early colonial period, this article offers a fresh look at the origins of the Press Clause. Then, applying those historical findings, the article critiques recent scholarship in the field and reassesses the Press Clause jurisprudence of the Supreme Court. Finally, the article describes the likely impact of its historical findings if ever employed by the Court in interpreting the Press Clause.
A New Originalism: Adoption Of A Grammatical Interpretive Approach To Establishment Clause Jurisprudence After District Of Columbia V. Helle, Christopher A. Boyko
A New Originalism: Adoption Of A Grammatical Interpretive Approach To Establishment Clause Jurisprudence After District Of Columbia V. Helle, Christopher A. Boyko
Cleveland State Law Review
This thesis proposes an approach to Establishment Clause jurisprudence (and one applicable to constitutional interpretation as a whole) that maintains fidelity to the Constitution by confining the application and interpretation of explicit text to the strictures of well-established norms of grammar and usage. It will begin by analyzing the disparities created through the addition or substitution of super-textual language to the clause through the use of surrogate concepts, and will demonstrate that any such method of constitutional adjudication becomes unworkable and incoherent once such tests utilize surrogate concepts and terminology. Through grammatical exegesis will emerge the theory that the Religion …