Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 3 of 3
Full-Text Articles in Law
Rule Originalism, Jamal Greene
Rule Originalism, Jamal Greene
Faculty Scholarship
Constitutional rules are norms whose application depends on an interpreter's identification of a set of facts rather than on her exercise of practical judgment. This Article argues that constitutional interpreters in the United States tend to resolve ambiguity over constitutional rules by reference to originalist sources and tend to resolve uncertainty over the scope of constitutional standards by reference to nonoriginalist sources. This positive claim unsettles the frequent assumption that the Constitution's more specifw or structural provisions support straightforward interpretive inferences. Normatively, this Article offers a partial defense of what it calls "rule originalism," grounded in the fact of its …
The Missing Due Process Argument, Jamal Greene
The Missing Due Process Argument, Jamal Greene
Faculty Scholarship
The argument that eventually persuaded five members of the Supreme Court to conclude that the individual mandate exceeded Congress’s power to regulate interstate commerce is one most observers originally considered frivolous. In that respect, it is similar to another potential argument against the mandate — that forcing someone to pay for insurance violates the liberty interests guaranteed by the Constitution’s Due Process Clause. The Commerce Clause argument was the centerpiece of the challenge to the mandate; the due process argument was not meaningfully advanced at all. This chapter suggests reasons why.
Constitutional Constraints On Redistribution Through Class Power, Mark Barenberg
Constitutional Constraints On Redistribution Through Class Power, Mark Barenberg
Faculty Scholarship
My comments will not be so much a critique as an elaboration of the two papers, especially Professor Neuman's paper on United States (U.S.) law, since I am not an expert on German constitutional law. For those less familiar with U.S. law, my goal is to bring to light some additional elements of the U.S. constitutional tradition that impede the use of law to achieve economic equality-elements of U.S. constitutional law that reinforce the weak "general equality" principle of the Equal Protection Clause.2 I will use U.S. labor law as my vehicle for showing the variety of constitutional principles that …