Law Commons^™

Bans, Joseph Blocher

Faculty Scholarship

In the universe of legal restrictions subject to judicial review, those characterized as fully denying some aspect of a constitutional right—bans—are often subject to per se rules of invalidity. Whether the subject of the restriction is a medium of expression, the valuable use of property, or a class of weapons, courts in such cases will often short-circuit the standard doctrinal machinery and strike down the law, even if it might have survived heightened scrutiny. Identifying laws as bans can thus provide an end run around the tiers of scrutiny and other familiar forms of means-ends analysis.

And yet it is …

The Well-Intentioned Purpose But Weak Epistemological Foundation Of Originalism, George C. Christie

Faculty Scholarship

The attraction of an originalist approach to constitutional interpretation is understandable. It is maintained that only that method can provide the judicial objectivity and certainty that constitutional adjudication requires. They claim that the traditional common-law evolutionary approach leads Supreme Court Justices to succumb to the temptation to fill in gaps in constitutional law and thereby ignore that major expansions in constitutional meaning and should be made in the way the Founders envisioned, namely by amendment of the Constitution. However difficult or impractical that process may be, it is the only way to avoid the politicization of the Court. Whether that …

Notes On A Bicentennial Constitution: Part I, Processes Of Change, William W. Van Alstyne

Faculty Scholarship

With the approach of the Bill of Rights bicentennial, this paper takes the cause for celebration as an equally important occasion for critique. This work argues that the most distinguishing aspects of our Constitution are not the Bill of Rights, federalism, and separation of powers, but rather the availability of judicial review, the political insulation of federal judges, and the limited mechanisms available for constitutional change.