Law Commons^™

Fidelity, Basic Liberties, And The Specter Of Lochner, James E. Fleming

Faculty Scholarship

I want to begin by frankly acknowledging that the group of scholars participating in the conference is more conservative than the crowd with whom I usually travel. Accordingly, at the outset, I want to say something ingratiating. Then, I will say something provocative. Here is the ingratiating part: economic liberties and property rights, like personal liberties, are fundamental rights secured by our Constitution. In fact, economic liberties and property rights are so fundamental in our constitutional scheme, and so sacred in our constitutional culture, that there is neither need nor good argument for aggressive judicial protection of them. Rather, such …

Delegation And The Constitution, Gary S. Lawson

Faculty Scholarship

In 1690, John Locke wrote that legislators “can have no power to transfer their authority of making laws and place it in other hands.” A century later, in 1789, the federal Constitution provided that “all legislative Powers herein granted shall be vested in a Congress of the United States.” A little more than a hundred years later, in 1892, the Supreme Court declared in Field v. Clark: “That Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution.”

In 1989, nearly …

The Trouble With Robertson: Equal Protection, The Separation Of Powers And The Line Between Statutory Amendment And Statutory Interpretation, William D. Araiza

Faculty Scholarship

No abstract provided.

The American Tradition Of Language Rights, ¡Que Viva Texas!: The Forgotten Right To Government In A “Known Tongue”, Jose R. "Beto" Juarez

Faculty Scholarship

No abstract provided.

The Remand That Made The Court Expand, Maxwell L. Stearns

Faculty Scholarship

No abstract provided.

City Of Boerne V. Flores: Religious Free Exercise Pays A High Price For The Supreme Court's Retaliation On Congress, Elizabeth Trujillo

Faculty Scholarship

The First Amendment of the United States Constitution, made applicable to the states through the Fourteenth Amendment, protects a person's right to the free exercise of religion. This protection, however, fails to provide a framework with which to reconcile the freedom of religious conduct with the need for government to regulate conduct. All three branches of government, as created in the Constitution, create and refine this framework. Traditionally, the judiciary has been the final interpreter of the Constitution and, in this capacity, has defined the powers of the other branches of government. For example, the Supreme Court has interpreted Congress's …

The Supreme Court, Sexual Citizenship And The Idea Of Progress, Kendall Thomas

Faculty Scholarship

Is American Progressive Constitutionalism dead ... yet? I propose to seek the beginnings of an answer to this question in the pages of a recent decision by the United States Supreme Court. I do feel obliged to say this, not because I am committed to a court-centered adjudicative conception of American constitutionalism; to the contrary. But rather, because the decision on which I want to focus seems to me to offer a rich resource for critical reflection on the idea of self-government whose connections to Progressive Constitutionalism give us our topic this afternoon.

Diverse Perspectives And The Religion Clauses: An Examination Of Justifications And Qualifying Beliefs, Kent Greenawalt

Faculty Scholarship

Some of the most complex questions about constitutional provisions governing religion concern the status of various kinds of convictions. Put most simply, how do undoubted religious convictions compare with convictions that appear to have little to do with religion, with convictions that derive from negative answers to religious questions, and with convictions that seem to be on some borderline of what may count as religion? In this Essay, I focus on two kinds of questions about this range of convictions.

Part I of the Essay explores justifications underlying the religion clauses of federal and state constitutions. It asks how explicitly …

Impeachment As A Technique Of Parliamentary Control Over Foreign Affairs In A Presidential System, Lori Fisler Damrosch

Faculty Scholarship

The central inquiry for this essay is the proper use of the impeachment tool in foreign relations contexts, including war powers. In Part I, the essay begins with a brief review of British impeachment practice (limited to war and foreign policy concerns) known to the Founding generation and reflected in certain fundamental texts of the Founding; this treatment does not betoken any originalist orientation on my part (au contraire) but will set the context for later developments. Part II then turns to the travails of President Andrew Johnson as seen through the eyes of Walter Bagehot, the author of …

Downsizing The Right To Petition, Gary S. Lawson, Guy I. Seidman

Faculty Scholarship

The First Amendment provides that "Congress shall make no law... abridging.., the right of the people.., to petition the Government for a redress of grievances."1 Unlike the First Amendment's speech, press, and religion clauses, this "Petitions Clause" has not spawned an extensive body of case law or academic commentary. The right to petition has been, in many ways, the First Amendment's poor relation.

Miller V. Albright: Problems Of Constitutionalization In Family Law, Katharine B. Silbaugh

Faculty Scholarship

From time to time, the Supreme Court chooses to hear a case addressing a family law issue. The family law cases accepted by the Supreme Court almost always present a constitutional challenge because absent a constitutional question, state law governs family law. Because the Supreme Court controls its docket, it is free to select only those cases that, in the view of the Court, pose particularly challenging issues. On most occasions, the Court chooses only those family law cases that present other, unrelated issues of interest to the Court.

Agency, Equality, And Antidiscrimination Law , Tracy E. Higgins, Laura A. Rosenbury

Faculty Scholarship

The Supreme Court increasingly has interpreted the Equal Protection Clause as a mandate for the state to treat citizens as if they were equal-as a limitation on the state's ability to draw distinctions on the basis of characteristics such as race and, to a lesser extent, gender. In the context of race, the Court has struck down not only race-specific policies designed to harm the historically oppressed, but race conscious policies designed to foster racial equality. Although in theory the Court has left open the possibility that benign uses of race may be constitutional under some set of facts, in …

Regionalism And The Religion Clauses: The Contribution Of Fisher Ames, Marc Arkin

Faculty Scholarship

On August 20, 1789, Massachusetts Federalist Fisher Ames rose to address the House of Representatives in one of his rare contributions to the debate on the Bill of Rights. 1 The day before, sitting as a Committee of the Whole, the House had concluded its brief discussion of the proposed religion amendment to the federal Constitution by agreeing to New Hampshire Representative Samuel Livermore's formula that "Congress shall make no laws touching religion, or infringing the rights of conscience." 2 Now, on the 20th, before the House could formally adopt Livermore's language, Representative Ames proposed a different wording. He moved …

The Virtues Of Presidential Weakness: A Comment On Fitts, Ernest A. Young

Faculty Scholarship

No abstract provided.

Marshall’S Questions, Walter E. Dellinger Iii, H. Jefferson Powell

Faculty Scholarship

No abstract provided.

The Boundaries Of Private Property, Michael A. Heller

Faculty Scholarship

If your house and fields are worth more separately, divide them; if you want to leave a ring to your child now and grandchild later, split the ownership in a trust. The American law of property encourages owners to subdivide resources freely. Hidden within the law, however, is a boundary principle that limits the right to subdivide private property into wasteful fragments. While people often create wealth when they break up and recombine property in novel ways, owners may make mistakes, or their self-interest may clash with social welfare. Property law responds with diverse doctrines that prevent and abolish excessive …

Confessions And Culture: The Interaction Of Miranda And Diversity, Floralynn Einesman

Faculty Scholarship

No abstract provided.

In God's Image: The Religious Imperative Of Equality Under Law, George P. Fletcher

Faculty Scholarship

This Essay argues that the principle of equality under law is best grounded in a holistic view of human dignity. Rejecting modem attempts to justify equality by reducing humanity to a particular actual characteristic, it articulates a religious imperative to treat people equally by drawing on biblical as well as modern philosophical sources. The principle "all men are created equal," as celebrated in the Declaration of Independence and Gettysburg Address, draws on this holistic understanding of humanity. This admittedly romantic approach to equality generates a critique of contemporary Supreme Court doctrine, including the prevailing approaches to strict scrutiny, affirmative action, …

The Political Economy Of Recognition: Affirmative Action Discourse And Constitutional Equality In Germany And The U.S.A., Kendall Thomas

Faculty Scholarship

This paper undertakes a comparative exploration of affirmative action discourse in German and American constitutional equality law. The first task for such a project is to acknowledge an important threshold dilemma. The difficulty in question derives not so much from dissimilarities between the technical legal structures of German and American affirmative action policy. The problem stems rather from the different social grounds and groupings on which those legal structures have been erected. Because German "positive action"' applies only to women, gender and its cultural meanings have constituted the paradigmatic subject of the policy. The legal discussion of positive action has …

Toward A Formative Project Of Securing Freedom And Equality, Linda C. Mcclain

Faculty Scholarship

This Symposium offers an occasion to pursue two important tasks: (1) identifying normative and constitutional foundations for an affimnative governmental responsibility to engage in a "formative project" that would foster persons' capacities for democratic and personal self-government;' and (2) exploring the mix of normative and empirical inquiries necessary to shape the proper goals and parameters of such a project. These tasks are relevant to my larger project of attempting to develop a synthetic, or feminist and liberal, normative account of rights, responsibilities, and governmental promotion of good, self-governing lives.2 That account argues for governmental responsibility to foster the preconditions for …

Progressive Constitutionalism: Conceptions Of Interpretation And The Religion Clauses, Kent Greenawalt

Faculty Scholarship

In this paper, I concentrate on the narrower, more typical topic of judicial interpretation. At least in regard to the religion clauses, this may be warranted because any progressive constitution would probably include something similar to the Free Exercise and Establishment Clauses, and these would be judicially enforceable to some degree.

The first part of this essay explores relations between progressive values and interpretive approaches. When I asked myself how a judge, committed to progressive values, would interpret the Federal Constitution, I was troubled by whether a progressive approach would be activist or restrained in relation to legislative authority. I …

Beyond The Independent Counsel: Evaluating The Options, Thomas W. Merrill

Faculty Scholarship

The Independent Counsel Act expires on June 30, 1999. Should it be extended? Extended with modifications? Radically reformed? Or should it be allowed to sunset with nothing put in its place? To answer these questions, we need to address some more fundamental questions: (1) Do we truly need an independent office to investigate alleged wrongdoing by high-ranking officers of the executive branch? (2) If so, what are the options for the organizational structure of such an office? (3) By what criteria should the different institutional options be evaluated? (4) Under these criteria, which option represents the best, or perhaps more …

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 …

The Plenary Power Background Of Curtiss-Wright, Sarah H. Cleveland

Faculty Scholarship

In his article The Transformation of the Constitutional Regime of Foreign Relations, Professor Ted White argues that the early twentieth century saw a major shift in constitutional understandings and expectations regarding the distribution of authority in foreign affairs. According to White, until that era the foreign affairs power, like all other powers under the Constitution, were considered subject to a formalistic, essentialist world view in which powers were distributed by the text of the Constitution according to clear principles of federalism and separation of powers. Congress and the President could only exercise powers in this area that had been dedicated …

Disenfranchisement As Punishment: Reflections On The Racial Uses Of Infamia, George P. Fletcher

Faculty Scholarship

The practice of disenfranchising felons, though decreasing, is still widespread. In this Article, Professor George Fletcher reflects on the use of disenfranchisement as punishment, the lack of a convincing theoretical justification for it, and its disproportionate impact on the African.American community. Fletcher presents a number of powerful arguments against the constitutionality of the practice, but he emphasizes that there is a deeper problem with disenfranchisement as punishment: It reinforces the branding of felons as an "untouchable" class and thus helps to prevent their effective reintegration into our society.