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Articles 31 - 60 of 64
Full-Text Articles in Law
The Original Meaning Of The Constitution's “Executive Vesting Clause”—Evidence From Eighteenth Century Drafting Practice, Robert G. Natelson
The Original Meaning Of The Constitution's “Executive Vesting Clause”—Evidence From Eighteenth Century Drafting Practice, Robert G. Natelson
Robert G. Natelson
Advocates of presidential power from the days of George Washington at least to the time of George W. Bush have claimed that the Constitution’s so-called “Executive Vesting Clause,” the first sentence of Article II, not only designates the President as chief executive, but also confers broad authority. Some commentators support that view, while others maintain that the President’s powers are limited to those enumerated elsewhere in the Constitution. This study addresses the previously-overlooked question of which interpretation is more consistent with contemporaneous drafting customs. It concludes that treating the “Executive Vesting Clause” as a mere designation is consistent with those …
The Original Meaning Of The Privileges And Immunities Clause, Robert G. Natelson
The Original Meaning Of The Privileges And Immunities Clause, Robert G. Natelson
Robert G. Natelson
This article explains the meaning of the U.S. Constitution's Privileges and Immunities Clause of Article IV, as the Founders understood it. It explains that the terms "privileges" and "immunities" had well-understood content in 18th century law---as benefits created by government. The Clause protects states from discriminating against visitors as to the benefits of citizenship (such as access to the courts), but does not address "natural rights" such as freedom of speech and religion.
Publius For All Of Us, Brannon P. Denning
Publius For All Of Us, Brannon P. Denning
Brannon P. Denning
This reviews Dan Coenen's "The Story of the Federalist: How Hamilton and Madison Reconceived America," an outstanding introduction to The Federalist Papers and its political theory.
Reclaiming Minnesota's Territorial Birthright: Why The Northwest Ordinance Restricts The State's Power Of Eminent Domain To Public Exigencies, Nicholas C. Dranias
Reclaiming Minnesota's Territorial Birthright: Why The Northwest Ordinance Restricts The State's Power Of Eminent Domain To Public Exigencies, Nicholas C. Dranias
Nicholas C Dranias
This short paper explains why the Northwest Ordinance of 1787 and the Minnesota state constitution should be read together “as one piece,” and how this reading warrants limiting the use of Minnesota’s power of eminent domain to circumstances of “public exigency.”
Culture, Religion, And Indigenous People, David S. Bogen, Leslie F. Goldstein
Culture, Religion, And Indigenous People, David S. Bogen, Leslie F. Goldstein
David S. Bogen
The Constitution treats culture, religion, and government as separate concepts. Different clauses of the First Amendment protect culture and religion from government. For several decades, the Supreme Court of the United States interpreted the First Amendment as offering religion greater protection against interference than was offered to culture, but the Supreme Court largely dissolved these constitutional differences when confronted with issues posed by the religious practices of Native Americans. With some indigenous Americans, the lines between culture, religion, and even government blur – challenging the Supreme Court’s assumptions about the Constitution. The uniqueness of the claims of Native Americans pushed …
Biblical Interpretation, Constitutional Interpretation And Ignoring Text, Henry L. Chambers, Jr.
Biblical Interpretation, Constitutional Interpretation And Ignoring Text, Henry L. Chambers, Jr.
Law Faculty Publications
Much is made of how to interpret the Constitution. The Constitution is foundational and its law is the highest law in the land. Consequently, interpreting the Constitution correctly is important, not only so that the Constitution's words are honored but so that its ideals are honored. Similar desires accompany the interpretation of other important documents. Indeed, how a sacred text like the Bible is or can be interpreted may shed light upon how the Constitution could be or should be interpreted. This brief Essay considers how a particular vision of Christian biblical interpretation can inform constitutional interpretation. This Essay does …
Empathy And Pragmatism In The Choice Of Constitutional Norms For Religious Land Use Disputes, Elizabeth Reilly
Empathy And Pragmatism In The Choice Of Constitutional Norms For Religious Land Use Disputes, Elizabeth Reilly
Elizabeth Reilly
From the perspective of both religious entities and local governments, religious land use requests are best resolved quickly, locally and cooperatively. The traditional framework for addressing religious land use disputes, which the Religious Land Use and Institutionalized Persons Act (RLUIPA)1 adopted, is ill-suited to those goals. Legally, disputes have long been framed as denials of the free exercise of religion – the broadest of all claims and the one requiring the most intrusive and subjective determinations about a particular religious group and its proposed use (what religion is, what a particular sect requires and how religion qua religion is affected …
39th Congress (1865-1867) And The 14th Amendment: Some Preliminary Perspectives, Richard Aynes
39th Congress (1865-1867) And The 14th Amendment: Some Preliminary Perspectives, Richard Aynes
Richard L. Aynes
The 39th Congress (1865-1867) was one of the important Congresses in our history. It passed more legislation than any other Congress up to that time. This preliminary examination of the 39th Congress begins with a look it composition. One of the critical factors was that while the 38th Congress contained a majority of unionists, the 39th Congress contained a super-majority which meant not only that they could override a Presidential veto, but also that they did not need to take the Democratic opposition seriously. This article also identifies the leadership of the 39th Congress. The 38th Congress was composed of …
Separation Of Powers In Brazil, Keith S. Rosenn
Presidential Popular Constitutionalism, Jedidiah Purdy
Presidential Popular Constitutionalism, Jedidiah Purdy
Fordham Law Review
This Article adds a new dimension to the most important and influential strand of recent constitutional theory: popular or democratic constitutionalism, the investigation into how the U.S. Constitution is interpreted (1) as a set of defining national commitments and practices, not necessarily anchored in the text of the document, and (2) by citizens and elected politicians outside the judiciary. Wide-ranging and ground-breaking scholarship in this area has neglected the role of the President as a popular constitutional interpreter, articulating and revising normative accounts of the nation that interact dynamically with citizens’ constitutional understandings. This Article sets out a “grammar” of …
Berkemer Revisited: Uncovering The Middle Ground Between Miranda And The New Terry, Michael J. Roth
Berkemer Revisited: Uncovering The Middle Ground Between Miranda And The New Terry, Michael J. Roth
Fordham Law Review
Over the past twenty-five years, appellate courts have significantly expanded the scope of police authority to stop and frisk potential suspects without probable cause, a power originally granted to law enforcement by the Supreme Court in Terry v. Ohio. This development has led Terry’s once limited licensing of police searches to run into conflict with a defendant’s right against compulsory self-incrimination while in police custody, as articulated by Miranda v. Arizona. This Note explores the contours of this unforeseen collision between two core constitutional doctrines and the solutions generated by appellate courts to resolve the conflict. Courts today are generally …
Quick Off The Mark? In Favor Of Empowering The President-Elect, Nina A. Mendelson
Quick Off The Mark? In Favor Of Empowering The President-Elect, Nina A. Mendelson
Articles
The United States’s presidential transition period is too long. Between November 7, 2008, and January 20, 2009, the media quickly identified a “‘leadership vacuum.’” In contrast to those of President-elect Obama, President Bush’s approval ratings were at historic lows. One reporter commented in late November, “The markets, at least, seem to be listening to one [P]resident—and he’s not the one in the Oval Office,” and another noted that “everyone . . . ignores the actions of the lame duck.”
Toward A Duty-Based Theory Of Executive Power, David M. Driesen
Toward A Duty-Based Theory Of Executive Power, David M. Driesen
Fordham Law Review
This article develops a duty-based theory of executive power. This theory maintains that the Constitution seeks to instill a duty in all executive branch officers to faithfully execute the law. Conversely, the Constitution’s Framers and Ratifiers did not intend to empower the President to distinctively shape the law to suit his policy preferences or those of his party. Rather, they envisioned a model of “disinterested leadership” serving rule-of-law values. Because of the Ratifiers’ and Framers’ interest in preventing abuse of executive power, the Constitution obligates executive branch officials to disobey illegal presidential directives and creates a major congressional role in …
Preemption And Theories Of Federalism, Robert R. M. Verchick, Nina A. Mendelson
Preemption And Theories Of Federalism, Robert R. M. Verchick, Nina A. Mendelson
Book Chapters
American government is an experiment in redundancy, with powers and duties shared among federal, state, and local decision makers. The arrangement is designed to divide power, maximize self-rule, and foster innovation, but it also can breed confusion. In the areas of public safety and environmental protection, state and federal leaders (to name the two most active players in these disputes) are often seen jockeying for the inside track, hoping to secure the resources or authority needed to promote their views of the public good or gain politically. To outside observers, the best outcomes are not obvious. For example, should the …
The Truth About Torts: Rethinking Regulatory Preemption And Its Impact On Public Health, William Buzbee, William Funk, Thomas Mcgarity, Nina A. Mendelson, Sidney Shapiro, David Vladeck, Matthew Shudtz
The Truth About Torts: Rethinking Regulatory Preemption And Its Impact On Public Health, William Buzbee, William Funk, Thomas Mcgarity, Nina A. Mendelson, Sidney Shapiro, David Vladeck, Matthew Shudtz
Other Publications
As consumers, we assume that the automobiles, pharmaceuticals, medical devices, and other products we purchase are generally safe for their intended uses. We rely on manufacturers to design and produce safe products, and we assume that federal regulators are conscientious watchdogs of the marketplace. In most instances, our assumptions are valid and we safely go about our lives. But the regulatory system is now frayed to the point that dangerous products sometimes slip through the cracks. Vioxx, Firestone/ATX tires, and toxics-laden children’s toys have endangered and harmed millions. In these cases, society depends on the state courts as a venue …
The Misconceived Assumption About Constitutional Assumptions, Randy E. Barnett
The Misconceived Assumption About Constitutional Assumptions, Randy E. Barnett
Georgetown Law Faculty Publications and Other Works
Both originalists and nonoriginalists alike often assume that background assumptions widely held when the Constitution or its amendments were enacted are part of the original meaning of the text. Originalists sometimes appeal to these background assumptions to render the meaning of more abstract words or phrases more determinate; nonoriginalist point to odious or outmoded assumptions as proof that original meaning is objectionable and should be rejected.
In this paper, the author examines the proper role of background assumptions in constitutional interpretation when ascertaining the meaning of the terms, and in constitutional construction when applying this meaning to particular cases and …
That Vague But Powerful Abstraction: The Concept Of 'The People' In The Constitution, Elisa Arcioni
That Vague But Powerful Abstraction: The Concept Of 'The People' In The Constitution, Elisa Arcioni
Faculty of Law - Papers (Archive)
The concept of ‘the people’ in the Constitution is undoubtedly unfinished constitutional business. The concept is “vague” due to a lack of development by the High Court but also because it is an inherently fluid concept. Yet it is also “powerful” because of what ‘the people’ has come to signify, which is something that I suggest should be further developed by the High Court. There are two questions that I will consider in this paper. The first is: who are ‘the people’? The second is: what impact do they have on our understanding of the Constitution and constitutional terms?
Between A Rock And A Hard Place: Landlords, Latinos, Anti-Illegal Immigrant Ordinances, And Housing Discrimination, Rigel C. Oliveri
Between A Rock And A Hard Place: Landlords, Latinos, Anti-Illegal Immigrant Ordinances, And Housing Discrimination, Rigel C. Oliveri
Faculty Publications
In the face of federal inability to effectively police our national borders and to remove unauthorized immigrants, many local governments have recently sought to take measures into their own hands by passing anti-illegal immigrant ("AII") ordinances. These ordinances usually contain a combination of provisions restricting housing, employment, and public benefits for unauthorized immigrants, among other things.This Article focuses on AII provisions that are targeted at private rental housing, which typically take the form of sanctions against landlords who rent to unauthorized immigrants.
Reconciling Classified Evidence And A Petitioner's Right To A "Meaningful Review" At Guantanamo Bay: A Legislative Solution, Sarah Lorr
Fordham Law Review
In Boumediene v. Bush, the U.S. Supreme Court determined that the detainees held at Guantánamo Bay have a constitutional right to a writ of habeas corpus and are entitled to a “meaningful review” of their habeas petitions. This Note attempts to reconcile the need for a “meaningful review” with the government’s reliance on classified evidence that is completely inaccessible to the detainee-petitioners. After examining three other contexts in which the reliance on classified evidence has been sanctioned—federal criminal courts, immigration cases, and the ongoing military commissions at Guantánamo—this Note concludes that a “meaningful review” of the Guantánamo habeas petitions requires …
Answering Justice Scalia's Question: Dual Sovereignty And The Sixth Amendment Right To Counsel After Texas V. Cobb And Montejo V. Louisiana, Ryan M. Yanovich
Answering Justice Scalia's Question: Dual Sovereignty And The Sixth Amendment Right To Counsel After Texas V. Cobb And Montejo V. Louisiana, Ryan M. Yanovich
Fordham Law Review
Since the U.S. Supreme Court decided Texas v. Cobb in 2001, eight courts of appeals have rached divergent conclusions as to the scope and extent of a criminal defendant's Sixth Amendment right to counsel when he is being prosecuted by multiple sovereigns, including, most recently, the U.S. Court of appeals for the Eleventh Circuit in 2008. Invariably, each circuit court purports to draw conclusive support for its holding from the plain language of Cobb. The conflict among the circuits reveals a tension between the courts; desire to balance fundamental individual and legitimate state interests, achieve uniformity and consistency in the …
Our Founding Feelings: Emotion, Commitment, And Imagination In Constitutional Culture, Doni Gewirtzman
Our Founding Feelings: Emotion, Commitment, And Imagination In Constitutional Culture, Doni Gewirtzman
University of Richmond Law Review
No abstract provided.
Limits Of Interpretivism, Richard A. Primus
Limits Of Interpretivism, Richard A. Primus
Articles
Justice Stephen Markman sits on the Supreme Court of my home state of Michigan. In that capacity, he says, he is involved in a struggle between two kinds of judging. On one side are judges like him. They follow the rules. On the other side are unconstrained judges who decide cases on the basis of what they think the law ought to be. This picture is relatively simple, and Justice Markman apparently approves of its simplicity. But matters may in fact be a good deal more complex.
Does Free Exercise Of Religion Deserve Constitutional Mention?, John M. Finnis
Does Free Exercise Of Religion Deserve Constitutional Mention?, John M. Finnis
Journal Articles
The article discusses the inclusion of the free exercise of religion among a society's constitutional guarantees in the U.S. It cites Christopher Eisgruber and Lawrence Sager, authors of the book "Religious Freedom and the Constitution," who hold that religion does not deserve constitutional mention on account of any special value. It disputes this view and states that religion does deserve constitutional mention and that the constitution should protect a citizen's right to practice his or her religion.
Rights, Remedies And Facial Challenges, Maya Manian
Rights, Remedies And Facial Challenges, Maya Manian
Articles in Law Reviews & Other Academic Journals
In a few short years, the Roberts Court has managed to severely restrict the use of facial challenges across substantive areas of constitutional law. Caitlin Borgmann's article, Holding Legislatures Constitutionally Accountable Through Facial Challenges, provides a compelling analysis of the vexing distinction between as applied and facial challenges in constitutional litigation and the impact that limiting facial challenges has on constitutional rights. Borgmann argues that facial challenges are necessary to keep legislatures in check, particularly when legislatures "deliberately or recklessly infringe individual rights" of those who lack political power. Facial challenges are needed in this context not only to protect …
Of Inkblots And Omnisignificance: Conceptualizing Secondary And Symbolic Functions Of The Ninth Amendment, In A Comparative Hermeneutic Framework, Samuel J. Levine
Of Inkblots And Omnisignificance: Conceptualizing Secondary And Symbolic Functions Of The Ninth Amendment, In A Comparative Hermeneutic Framework, Samuel J. Levine
Scholarly Works
In this Essay, Levine focuses on a particular hermeneutic approach common to the interpretation of the Torah and the United States Constitution: a presumption against superfluity. This presumption accords to the text a considerable degree of omnisignificance, requiring that interpreters pay careful attention to every textual phrase and nuance in an effort to find its legal meaning and implications. In light of this presumption, it might be expected that normative interpretation of both the Torah and the Constitution would preclude a methodology that allows sections of the text to remain bereft of concrete legal application. In fact, however, both the …
Constitution And The Laws Of War During The Civil War, The Federal Courts, Practice & Procedure, Andrew Kent
Constitution And The Laws Of War During The Civil War, The Federal Courts, Practice & Procedure, Andrew Kent
Faculty Scholarship
This Article uncovers the forgotten complex of relationships between the U.S. Constitution, citizenship and the laws of war. The Supreme Court today believes that both noncitizens and citizens who are military enemies in a congressionally-authorized war are entitled to judicially-enforceable rights under the Constitution. The older view was that the U.S. government’s military actions against noncitizen enemies were not limited by the Constitution, but only by the international laws of war. On the other hand, in the antebellum period, the prevailing view was U.S. citizenship should carry with it protection from ever being treated as a military enemy under the …
Saving The Unitary Executive Theory From Those Who Would Distort And Abuse It: A Review Of The Unitary Executive, By Steven G. Calabresi And Christopher Yoo, Richard J. Pierce Jr
Saving The Unitary Executive Theory From Those Who Would Distort And Abuse It: A Review Of The Unitary Executive, By Steven G. Calabresi And Christopher Yoo, Richard J. Pierce Jr
GW Law Faculty Publications & Other Works
Calabresi and Yoo make three important contributions to the literature on separation of powers in their new book. First, they seek to rescue the unitary executive theory from the Bush Administration lawyers who have discredited the theory in the eyes of many by relying on it to support outlandish claims of presidential power that are unrelated to the unitary executive theory. Second, they make a persuasive case for the unitary executive theory by explaining why a president must have the power to remove executive branch officers and to control policy making in the executive branch. Third, they document the ways …
Is The Constitution Libertarian?, Randy E. Barnett
Is The Constitution Libertarian?, Randy E. Barnett
Georgetown Law Faculty Publications and Other Works
Ever since Justice Holmes famously asserted that “the Constitution does not enact Mr. Herbert Spencer’s Social Statics,” academics have denied that the Constitution is libertarian. In this essay, I explain that the Constitution is libertarian to the extent that its original meaning respects and protects the five fundamental rights that are at the core of both classical liberalism and modern libertarianism. These rights can be protected both directly by judicial decisions and indirectly by structural constraints. While the original Constitution and Bill of Rights provided both forms of constraints, primarily on federal power, it left states free to violate the …
Privacy And The New Virtualism, Jonathon Penney
Privacy And The New Virtualism, Jonathon Penney
Articles, Book Chapters, & Popular Press
First generation cyberlaw scholars were deeply influenced by the uniqueness of cyberspace, and believed its technology and scope meant it could not be controlled by any government. Few still ascribe to this utopian vision. However, there is now a growing body of second generation cyberlaw scholarship that speaks not only to the differential character of cyberspace, but also analyzes legal norms within virtual spaces while drawing connections to our experience in real space. I call this the New Virtualism. Situated within this emerging scholarship, this article offers a new approach to privacy in virtual spaces by drawing on what Orin …
Understanding The New Virtualist Paradigm, Jonathon Penney
Understanding The New Virtualist Paradigm, Jonathon Penney
Articles, Book Chapters, & Popular Press
This article discusses the central ideas within an emerging body of cyberlaw scholarship I have elsewhere called the "New Virtualism". We now know that the original "virtualists"- those first generation cyberlaw scholars who believed virtual worlds and spaces were immune to corporate and state control - were wrong; these days, such state and corporate interests are ubiquitous in cyberspace and the Internet. But is this it? Is there not anything else we can learn about cyberlaw from the virtualists and their utopian dreams? I think so. In fact, the New Virtualist paradigm of cyberlaw scholarship draws on the insights of …