Law Commons^™

Mining For Gold: The Constitutional Court Of South Africa's Experience With Comparative Constitutional Law, Ursula Bentele

Ursula Bentele

MINING FOR GOLD: THE CONSTITUTIONAL COURT OF SOUTH AFRICA’S EXPERIENCE WITH COMPARATIVE CONSTITUTIONAL LAW

Ursula Bentele

Abstract

Despite a long history of referring to foreign law in its opinions, the Supreme Court’s recent citations to such sources have caused heated controversy. Critics warn of threats to sovereignty as well as serious flaws in the way judges use outside authority. Largely missing from this debate is any probing examination of the actual practice of engaging with foreign authorities. This article attempts to fill the empirical void by analyzing closely one court that has used foreign law extensively: the Constitutional Court of …

An Originalist Defense Of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, And The Fifth Amendment, Frederick Mark Gedicks

Frederick Mark Gedicks

A longstanding scholarly consensus holds that the Due Process Clause of the Fifth Amendment protects only rights to legal process. Both this consensus and the occasional challenges to it have generally overlooked the interpretive significance of the classical natural law tradition that made substantive due process textually coherent, and the emergence of public-meaning originalism as the dominant approach to constitutional interpretation. This Article fills those gaps. One widely shared understanding of the Due Process Clause in the late eighteenth century encompassed judicial recognition of unenumerated substantive rights as a limit on congressional power. This concept of “substantive” due process originated …

The New Doctrinalism In Constitutional Scholarship And Heller V. District Of Columbia, Brannon P. Denning

Brannon P. Denning

This brief essay examines an apparent new trend in constitutional scholarship that focuses less on the fixing of constitutional meaning--the usual focus of constitutional theory--and more on the rules courts develop to implement constitutional commands. This new doctrinalism offers a way forward from the stalemated debates of constitutional theory, and perhaps can bridge the oft remarked upon divide between academics on the one hand, and judges and practitioners on the other. While the New Doctrinalism has already attracted critics who question whether interpretation and doctrine can meaningfully be separated, the essay concludes that its emergence is a welcome one in …