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Full-Text Articles in Law
Founding-Era Translations Of The U.S. Constitution. Appendix, Christina Mulligan, Michael Douma, Hans Lind, Brian Quinn
Founding-Era Translations Of The U.S. Constitution. Appendix, Christina Mulligan, Michael Douma, Hans Lind, Brian Quinn
Constitutional Commentary
Table of original text of the United States Constitution and parallel translations into Dutch and German, with commentary on the translations. Appendix to the article, Founding-era translations of the U.S. Constitution. Both article and appendix appear in Volume 31, Number 1.
Rethinking Judicial Supremacy, Lino A. Graglia
Rethinking Judicial Supremacy, Lino A. Graglia
Constitutional Commentary
No abstract provided.
On Jim Fleming’S Anti-Originalism, Sotirios A. Barber
On Jim Fleming’S Anti-Originalism, Sotirios A. Barber
Constitutional Commentary
No abstract provided.
Fidelity To The Best Version Of Ourselves, Lawrence Sager
Fidelity To The Best Version Of Ourselves, Lawrence Sager
Constitutional Commentary
No abstract provided.
The Document And The Drama, William Bennett
The Document And The Drama, William Bennett
Constitutional Commentary
No abstract provided.
Originalism’S Curiously Triumphant Death: The Interpenetration Of Aspirationalism And Historicism In U.S. Constitutional Development, Ken I. Kersch
Originalism’S Curiously Triumphant Death: The Interpenetration Of Aspirationalism And Historicism In U.S. Constitutional Development, Ken I. Kersch
Constitutional Commentary
One of the central debates amongst U.S. constitutional theorists for more than a generation has been between (conservative) ‘originalists’ arguing that, in interpreting and applying the Constitution, judges are duty bound to adhere to the original understandings at the time of the Constitution’s adoption and (liberal/progressive) ‘living constitutionalists’ arguing rather that, when appropriate, judges should read the Constitution in light of contemporary needs and moral aspirations. While acknowledging the significance and legitimacy of the originalist call for fidelity to history and newly incorporating elements of their arguments into his theory, Fleming, in Fidelity to Our Imperfect Constitution, re-affirms moral aspirationalism …
Intelligent Or Unintelligent Fidelity?, Imer B. Flores
Intelligent Or Unintelligent Fidelity?, Imer B. Flores
Constitutional Commentary
In this paper the author elaborates a commentary on James E. Fleming’s Fidelity to Our Imperfect Constitution. For Moral Readings and Against Originalisms, and concurs with those who claim that with its publication he pick ups the torch laid down by the late Ronald Dworkin as the current most representative advocate of a moral reading of a constitution. For that purpose he reassess Ronald Dworkin’s “moral reading”; reevaluates Fleming’s argument both “for moral readings and against originalisms”, which can be characterized as “fidelity to our imperfect constitution”, and which has implicit three very helpful dichotomies to distinguish moral readings from …
Silent Concurrences, Greg Goelzhauser
Silent Concurrences, Greg Goelzhauser
Constitutional Commentary
The silent concurrence is a puzzling institutional practice given that the long understood benefits of separate opinion production require that they be written. Unfortunately, reasons for concurring silently are opaque by definition and as a result little progress has been made toward understanding this puzzling institutional practice. In this article, I leverage private papers from the Burger Court to explain why justices sometimes concur silently. These records indicate that myriad factors precipitate this practice, including time constraints, perceptions about case importance, reluctant vote switching, uncertainty about the proper disposition or legal rule, a desire to maintain voting consistency while withholding …
Reading Deboer And Obergefell Through The “Moral Readings Versus Originalisms” Debate: From Constitutional “Empty Cupboards” To Evolving Understandings, Linda C. Mcclain
Reading Deboer And Obergefell Through The “Moral Readings Versus Originalisms” Debate: From Constitutional “Empty Cupboards” To Evolving Understandings, Linda C. Mcclain
Constitutional Commentary
This article assesses the debate over “moral reading” and “originalist” approaches to constitutional interpretation by evaluating the momentous constitutional controversy in the United States over access by same-sex couples to civil marriage. Justice Kennedy’s landmark opinion in Obergefell v. Hodges (2015), which held that such couples have a fundamental right to marry, employed a “moral reading” in emphasizing dual forms of evolving understanding: of constitutional guarantees of equality and the “promise of liberty” and of the institution of marriage. By contrast to the dissenters, the majority rejected a static, narrow reading of the fundamental right to marry – and marriage …
Fidelity To Our Imperfect Constitution: A Response To Six Views, James E. Fleming
Fidelity To Our Imperfect Constitution: A Response To Six Views, James E. Fleming
Constitutional Commentary
No abstract provided.
What One Can Learn From Foreign-Language Translations Of The U.S. Constitution, Sanford Levinson
What One Can Learn From Foreign-Language Translations Of The U.S. Constitution, Sanford Levinson
Constitutional Commentary
No abstract provided.
Legislative Power And Judicial Power, John Harrison
Legislative Power And Judicial Power, John Harrison
Constitutional Commentary
There are two possible accounts of the difference between the legislative and judicial powers granted by the Constitution and each has surprising implications. According to one, the difference is purely between two different government functions, making legal rules and applying them. If that is correct, then the legislative power can accomplish any legal result the judicial power can, but not vice versa (putting aside constitutional limits on the legislative power that do not result from its separation from judicial power). According to the other, the two powers differ because only the judicial power may operate on certain legal interests. If …
The Construction Of Original Public Meaning, Jack M. Balkin
The Construction Of Original Public Meaning, Jack M. Balkin
Constitutional Commentary
Christina Mulligan, Michael Douma, Hans Lind and Brian Quinn have recently shown that during the ratification of the Constitution in 1787-1788, German and Dutch translations of the Constitution were distributed to non-English speakers in the crucial states of Pennsylvania and New York. These translations differ from the English text in interesting and important ways. As a result, English speakers may have understood the proposed Constitution in one way, while non-English speakers may have understood it quite differently.This essay uses this example to show why original public meaning is not a set of facts that lawyers simply discover and report. Rather, …
Discretionary Dockets, Randy J. Kozel, Jeffrey A. Pojanowski
Discretionary Dockets, Randy J. Kozel, Jeffrey A. Pojanowski
Constitutional Commentary
The Supreme Court’s workload and its method for selecting cases have drawn increasing critical scrutiny. Similarly, and separately, recent commentary has focused on the disparate approaches the Court has taken to resolving cases on its (historically small) docket. In this Essay we draw these two lines of inquiry together to argue that the Court’s case selection should align with its approach to constitutional adjudication. In doing so, we discuss four modes of constitutional decisionmaking and then examine the interplay between those modes, the Court’s management of its docket, and its sense of institutional role. The Court, we argue, has neither …
A Biography Of Madison’S Notes Of Debates, Jack Rakove
A Biography Of Madison’S Notes Of Debates, Jack Rakove
Constitutional Commentary
In this truly provocative book, Mary Bilder writes what is in effect a biography of the composition, compilation, and revision of James Madison’s notes of debates from the Constitutional Convention of 1787. Working her way week by week through the course of the Convention, and doing her best to ascertain the character and source of Madison’s many later revisions, Bilder offers a number of striking hypotheses about the origins and evolution of the notes. Her two principal hypotheses pivot on the idea that the notes were originally conceived, not as a documentary legacy to History, but as a “legislative diary,” …
The Staying Power Of Erroneous Dicta: From Curtiss-Wright To Zivotofsky, Louis Fisher
The Staying Power Of Erroneous Dicta: From Curtiss-Wright To Zivotofsky, Louis Fisher
Constitutional Commentary
We treat judicial rulings, particularly those of the Supreme Court, as legitimate sources of constitutional authority. But what if a decision rests on a plain misconception, expressed not in the holding of the case but in influential dicta, because the Court failed to properly understand a historical precedent? No matter how frequently courts, the Justice Department, and scholars later cite the dicta, a misrepresentation is not a valid source of authority. The responsible step for the Supreme Court is to revisit the mistake and correct it. This article focuses on the "sole organ" doctrine that appeared in United States v. …
Dutch And German Founding-Era Translations Of The U.S. Constitution, Christina Mulligan, Michael Douma, Hans Lind, Brian Quinn
Dutch And German Founding-Era Translations Of The U.S. Constitution, Christina Mulligan, Michael Douma, Hans Lind, Brian Quinn
Constitutional Commentary
This appendix contains founding-era German and Dutch translations of the United States Constitution, along with extensive commentary on the translations. The paper "Founding-Era Translations of the Constitution" to which these Appendices apply is available at the following URL: http://ssrn.com/abstract=2486301
The Meming Of Substantive Due Process, Jamal Greene
The Meming Of Substantive Due Process, Jamal Greene
Constitutional Commentary
Substantive due process is notoriously regarded as a textual contradiction, but it is in fact redundant. The word “due” cannot be honored except by inquiring into the relationship between the nature and scope of the deprived interest and the process — whether judicial, administrative, or legislative — that attended the deprivation. The treatment of substantive due process as an oxymoron is what this Essay calls a constitutional meme, an idea that replicates through imitation within the constitutional culture rather than (necessarily) through logical persuasion. We might even call the idea a “precedent,” in the nature of other legal propositions within …
Founding-Era Translations Of The U.S. Constitution, Christina Mulligan, Michael Douma, Hans Lind, Brian Quinn
Founding-Era Translations Of The U.S. Constitution, Christina Mulligan, Michael Douma, Hans Lind, Brian Quinn
Constitutional Commentary
Before its ratification, the United States Constitution was translated into German and Dutch for the German- and Dutch-speaking populations of Pennsylvania and New York. Although copies of both the German- and Dutch-language translations have been preserved, they have largely escaped analysis — and public awareness — until now. This paper provides historical context for these translations and analyzes how they might aid our interpretation of the U.S. Constitution in the present day. Supplemental to this article is an appendix containing the German and Dutch translations, as well as extensive commentary on the translations, available at https://ssrn.com/abstract=2486282.