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The Original Understanding Of The Indian Commerce Clause, Robert G. Natelson
The Original Understanding Of The Indian Commerce Clause, Robert G. Natelson
Faculty Law Review Articles
This article is a comprehensive analysis of the original meaning of and understanding behind the Constitution's Indian Commerce Clause under which Congress claims plenary and exclusive power over federal affairs with Indian tribes. The author concludes that, as originally understood, congressional power over the tribes was to be neither plenary nor exclusive.
Judicial Review Of Special Interest Spending: The General Welfare Clause And The Fiduciary Law Of The Founders, Robert G. Natelson
Judicial Review Of Special Interest Spending: The General Welfare Clause And The Fiduciary Law Of The Founders, Robert G. Natelson
Faculty Law Review Articles
This article explores the fiduciary law of the founding fathers to determine whether it was part of the constitutional design for the Judiciary to review special interest appropriations, and, if so, how the courts might proceed. The author’s findings suggest that, at least from the standpoint of the original understanding of the Constitution, prior judicial deference to the Legislature has been excessive and that there are solid constitutional grounds in arguing for a more searching standard of review.
The Original Meaning Of The Establishment Clause, Robert G. Natelson
The Original Meaning Of The Establishment Clause, Robert G. Natelson
Faculty Law Review Articles
The article builds on Establishment Clause studies conducted by Noah Feldman and Philip Hamburger, which utilize ratification materials to explain the founding generation's free exercise ideology and the emergence of the Establishment Clause from that ideology. In this article, the author demonstrates how the "religion terms" of the Gentlemen's Agreement clarifies the meaning of the Establishment Clause so that persistent interpretive difficulties largely disappear.
The Agency Law Origins Of The Necessary And Proper Clause, Robert G. Natelson
The Agency Law Origins Of The Necessary And Proper Clause, Robert G. Natelson
Faculty Law Review Articles
In this article the author suggests that the meaning of the Necessary and Proper Clause has seemed unclear to modern commentators because they have not been looking in the right place. In Part II the author subjects the Necessary and Proper Clause to textual analysis, incorporating in that analysis the eighteenth century definitions of words and shows why textual analysis alone cannot clarify some uncertainties. Part III examines the drafting history of the Clause at the federal constitutional convention, concluding that the primary drafters intended it to incorporate concepts from contemporary agency law, specifically the doctrine of implied incidental agency …