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The Traditions Of American Constitutional Law, Marc O. Degirolami

Scholarly Articles

This Article identifies a new method of constitutional interpretation: the use of tradition as constitutive of constitutional meaning. It studies what the Supreme Court means by invoking tradition and whether what it means remains constant across the document and over time. Traditionalist interpretation is pervasive, consistent, and recurrent across the Court's constitutional doctrine. So, too, are criticisms of traditionalist interpretation. There are also more immediate reasons to study the role of tradition in constitutional interpretation. The Court's two newest members, Justices Neil Gorsuch and Brett Kavanaugh, have indicated that tradition informs their understanding of constitutional meaning. The study of traditionalist …

First Amendment Traditionalism, Marc O. Degirolami

Scholarly Articles

Traditionalist constitutional interpretation takes political and cultural practices of long age and duration as constituting the presumptive meaning of the text. This Essay probes traditionalism's conceptual and normative foundations. It focuses on the Supreme Court's traditionalist interpretation of the First Amendment to understand the distinctive justifications for traditionalism and the relationship between traditionalism and originalism. The first part of the Essay identifies and describes traditionalism in some of the Court's Speech and Religion Clause jurisprudence, highlighting its salience in the Court's recent Establishment Clause doctrine.

Part II develops two justfications for traditionalism: "interpretive" and "democratic-populist." The interpretive justification is that …

Impact Of The Strict Scrutiny Standard Of Judicial Review On Abortion Legislation Under The Kansas Supreme Court’S Decision In Hodes & Nauser V. Schmidt, Elizabeth Kirk

Scholarly Articles

This paper is focused on a narrow matter, namely, the nature of the standard of judicial review adopted by the Kansas Supreme Court in Hodes & Nauser v. Schmidt. 2 The most important (and decisive) point to emphasize is that the standard of judicial review adopted by the court in Hodes is so rigorous that it is likely to unsettle existing abortion law in Kansas and result in a legal landscape for abortion in this state that is more permissive of abortion than either the current federal standard or the original federal standard established by Roe v. Wade.

In order …