Law Commons^™

The Declaration Of Independence And Constitutional Interpretation, Alexander Tsesis

Alexander Tsesis

This Article argues that the Reconstruction Amendments incorporated the human dignity values of the Declaration of Independence. The original Constitution contained clauses, which protected the institution of slavery, that were irreconcilable with the normative commitments the nation had undertaken at independence. The Thirteenth, Fourteenth, and Fifteenth Amendments set the country aright by formally incorporating the Declaration of Independence's principles for representative governance into the Constitution.

The Declaration of Independence provides valuable insights into matters of human dignity, privacy, and self-government. Its statements about human rights, equality, and popular sovereignty establish a foundational rule of interpretation. While the Supreme Court has …

Reconstructing Constitutional Punishment, Paulo D. Barrozo

Paulo Barrozo

Constitutional orders punish — and they punish abundantly. However, analysis of the constitutionality of punishment tends to be reactive, focusing on constitutional violations. Considered in this light, the approach to constitutional punishment rests on conditions of unconstitutionality rather than proactively on the constitutional foundations of punishment as a legitimate liberal-democratic practice. Reactive approaches are predominantly informed by moral theories about the conditions under which punishment is legitimate. In contrast, proactive approaches call for a political theory of punishment as a legitimate practice of polities. This Article integrates the reactive and proactive approaches by bridging the divide between moral and political …

Why Justice Scalia Should Be A Constitutional Comparativist ... Sometimes, David Gray

David C. Gray

The burgeoning literature on transjudicialism and constitutional comparativism generally reaffirms the familiar lines of contest between textualists and those more inclined to read the Constitution as a living document. As a consequence, it tends to be politicized, if not polemic. This article begins to shift the debate toward a more rigorous focus on first principles. In particular, it argues that full faith to the basic commitments of originalism, as advanced in Justice Scalia's writings, opinions, and speeches, requires domestic courts to consult contemporary foreign sources when interpreting universalist language found in the Constitution. While the article does not propose a …

Desafios Da Constituição Europeia À Teoria Constitucional, Paulo Ferreira Da Cunha

Paulo Ferreira da Cunha

The project of the “Treaty that establishes a Constitution for the Europe”, beyond its political consequences, puts some challenges to the classical constitutional theory. At first sight, it seems completely heterodox towards canon constitutional tendencies, and first of all in what concerns the constituent power classical theories. However, a more rigorous analysis of the history of the modern constitutionalism and its founding texts, mainly French, can lead us to detect very revealing bridges between the liberal modern constitutionalism of the XVIIIth century and the present constitution making of a codified European Constitution. The “treaty” formula that was adopted also represents …

The Idea Of Equality And Affirmative Actions, Paulo Barrozo

Paulo Barrozo

The article starts out from a concise reconstruction of the republican and the democratic ideals in the context of the modern expansion on emancipatory ideals and programs so as to produce an understanding of the principle of equality in light of them. It then seeks to develop the rudiments of a constitutional theory of equality consistent with the emancipatory ideals from which it derives its most robust meaning. In its last segment the article examines the question of "affirmative action" in the access to higher education within the scope of the proposed basis for a theory of equality.