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On Federalism, Freedom, And The Founders' View Of Retained Rights - A Reply To Randy Barnett, Kurt T. Lash
On Federalism, Freedom, And The Founders' View Of Retained Rights - A Reply To Randy Barnett, Kurt T. Lash
Law Faculty Publications
In A Textual-Historical Theory of the Ninth Amendment, 60 Stanford Law Review, I explain how some of the most common theories of the Ninth Amendment either have nothing to do with the actual text of the Amendment or place the text in conflict with similar terms in the Tenth Amendment. Focusing on the actual words of the Amendment, I argue that the text of the Ninth point towards a federalist rule of construction in which the people's retained rights are necessarily left to the control of the collective people in the several states. I also explain how this reading fits …
"High Crimes And Misdemeanors": Recovering The Intentions Of The Founders, Gary L. Mcdowell
"High Crimes And Misdemeanors": Recovering The Intentions Of The Founders, Gary L. Mcdowell
Law Faculty Publications
Such serious charges by so many distinguished historians demand a careful consideration of what the Founders meant by "high Crimes and Misdemeanors": Were they only indictable crimes or did they include what one of the Framers called "political crimes and misdemeanors?" Were they offenses that a President would commit only in "the exercise of executive power" or did they also include a President's malfeasance committed in his private capacity? Were they subject to a reasonably fixed meaning or were they to be determined simply by the exercise of the "awful discretion" of those in Congress called upon to impeach and …
The Federalism Pendulum, Ronald J. Bacigal
The Federalism Pendulum, Ronald J. Bacigal
Law Faculty Publications
Following Franklin's example, this essay takes a protracted view of the federalization of criminal procedure. It is important to review how the federalism pendulum has swung over the years to reflect concepts of what the Constitution was meant to mean, what it has come to mean, and what it ought to mean.