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Some Effects Of Identity-Based Social Movements On Constitutional Law In The Twentieth Century, William N. Eskridge Jr.
Some Effects Of Identity-Based Social Movements On Constitutional Law In The Twentieth Century, William N. Eskridge Jr.
Michigan Law Review
What motivated big changes in constitutional law doctrine during the twentieth century? Rarely did important constitutional doctrine or theory change because of formal amendments to the document's text, and rarer still because scholars or judges "discovered" new information about the Constitution's original meaning. Precedent and common law reasoning were the mechanisms by which changes occurred rather than their driving force. My thesis is that most twentieth century changes in the constitutional protection of individual rights were driven by or in response to the great identity-based social movements ("IBSMs") of the twentieth century. Race, sex, and sexual orientation were markers of …
Civics 2000: Process Constitutionalism At Yale, Daniel J. Hulsebosch
Civics 2000: Process Constitutionalism At Yale, Daniel J. Hulsebosch
Michigan Law Review
One or another form of historical fidelity has long been in the repetoire of constitutional interpretation, and during the last two decades conservative jurists have searched for the "original intent" of various clauses. Increasingly, however, it is liberal law professors who are turning to history to make sense of American constitutionalism. What they find there is not a document listing eternal rights or duties but rather a multidimensional structure of government, captured as much in practice as on paper, that has metamorphosed over time. It seems we have, in that familiar phrase, a living Constitution. But interest is shifting from …
Caste, Class, And Equal Citizenship, William E. Forbath
Caste, Class, And Equal Citizenship, William E. Forbath
Michigan Law Review
There is a familiar egalitarian constitutional tradition and another we have largely forgotten. The familiar one springs from Brown v. Board of Education; its roots lie in the Reconstruction era. Court-centered and countermajoritarian, it takes aim at caste and racial subordination. The forgotten one also originated with Reconstruction, but it was a majoritarian tradition, addressing its arguments to lawmakers and citizens, not to courts. Aimed against harsh class inequalities, it centered on decent work and livelihoods, social provision, and a measure of economic independence and democracy. Borrowing a phrase from its Progressive Era proponents, I will call it the social …
How To Constitutionalize International Law And Foreign Policy For The Benefit Of Civil Society?, Ernst-Ulrich Petersmann
How To Constitutionalize International Law And Foreign Policy For The Benefit Of Civil Society?, Ernst-Ulrich Petersmann
Michigan Journal of International Law
All societies have adopted rules in order to reconcile conflicts among the short-term interests of their citizens with their common long-term interests. All societies have learned that rule-making and rule-enforcement require government powers, as well as "checks and balances" against abuses of such powers. Constitutionalism has emerged as the most important human invention for protecting equal rights of the citizens against such abuses. It rests on the rationality of Ulysses who, when approaching the island of the sirens and knowing of their dangers, ordered his companions to bind him to the mast and not to release him under any circumstances.' …
Hurst: Law And Social Process In United States History, Robert S. Hunt
Hurst: Law And Social Process In United States History, Robert S. Hunt
Michigan Law Review
A Review of Law and Social Process in United States History. By James Willard Hurst.