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Full-Text Articles in Law
Madisonian Equal Protection, James S. Liebman, Brandon L. Garrett
Madisonian Equal Protection, James S. Liebman, Brandon L. Garrett
Faculty Scholarship
James Madison is considered the "Father of the Constitution," but his progeny disappointed him. It had no effective defense against self-government's "mortal disease" – the oppression of minorities by local majorities. This Article explores Madison's writings in an effort to reclaim the deep conception of equal protection at the core of his constitutional aspirations. At the Convention, Madison passionately advocated a radical structural approach to equal protection under which the "extended republic's" broadly focused legislature would have monitored local laws and vetoed those that were parochial and "unjust." Rejecting this proposal to structure equal protection into the "interior" operation of …
Rethinking Article I, Section I: From Nondelegation To Exclusive Delegation, Thomas W. Merrill
Rethinking Article I, Section I: From Nondelegation To Exclusive Delegation, Thomas W. Merrill
Faculty Scholarship
The first substantive clause of the Constitution – providing that "[all legislative Powers herein granted shall be vested in a Congress" – is associated with two postulates about the allocation of legislative power. The first is the nondelegation doctrine, which says that Congress may not delegate legislative power. The second is the exclusive delegation doctrine, which says that only Congress may delegate legislative power. This Article explores the textual, historical, and judicial support for these two readings of Article I, Section 1, as well as the practical consequences of starting from one postulate as opposed to the other. The Article …
Doing Originalism, Henry Paul Monaghan
Doing Originalism, Henry Paul Monaghan
Faculty Scholarship
It is an honor to participate in celebrating Justice Ginsburg's tenth anniversary on the Court. She is a Justice whom I admire on many fronts; moreover, she continues to be a vital part of this school as this Symposium itself attests. But an invitation to participate also presents a challenge: This session is about her and her contributions to various aspects of the Court's jurisprudence. I know Justice Ginsburg well enough to believe that nothing would cause her more discomfort than to be in an audience with herself as the sole topic. So I thought that my remarks should be …