Law Commons^™

The Choice Between Madison And Fdr, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

This exchange is about three clauses that have often been used by the courts since the New Deal to expand federal power: the Commerce Clause, the Necessary and Proper Clause, and the Taxation Clause, from which the spending power has (at least until today) been construed. This Essay addresses the originalist interpretation of the Necessary and Proper Clause.

Incorporation And Originalist Theory, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

Does the Fourteenth Amendment of the United States Constitution incorporate the Bill of Rights contained in the first eight amendments? And how should an originalist answer that question? This paper focuses on the latter question--the issues of originalist theory that are raised by judicial and scholarly debates over what is called "incorporation."

The inquiry proceeds in six parts. Part I answers the questions: "What is incorporation?" and "What is originalism?" Part II examines the theoretical framework for an investigation of incorporation that operates within the narrow confines of interpretation of the linguistic meaning text based on the assumption that the …

Take-Ings, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

The word property had many meanings in 1789, as it does today, and a critical aspect of the ongoing debate about the meaning of the Fifth Amendment's Takings Clause has centered on how the word should be read in the context of the Clause. Property has been read by Professor Thomas Merrill to refer to "ownership" interests, by Richard Epstein in terms of a broad Blackstonian conception of the individual control of the possession, use, and disposition of resources, by Benjamin Barros as reflective of constructions through individual expectations and state law, and by the author as physical control of …

Constitutional Clichés, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Popular discourse on constitutional interpretation and judicial review tend to employ a series of catch phrases that have become constitutional clichés. Phrases such as “judicial activism,” “judicial restraint,” “strict construction,” “not legislating from the bench,” “Framers’ intent,” the “dead hand of the past,” and “stare decisis” so dominate public commentary on the Constitution and the courts that quite often that is all one hears. Unfortunately, even law professors are not immune. There was a time when each of these catch phrases meant something and, although each could mean something again, in current debates all have become trite and largely devoid …