Law Commons^™

Communities, Texts, And Law: Reflections On The Law And Literature Movement, Robin West

Georgetown Law Faculty Publications and Other Works

How do we form communities? How might we form better ones? What is the role of law in that process? In a recent series of books and articles, James Boyd White, arguably the modern law and literature movement's founder, has put forward distinctively literary answers to these questions. Perhaps because of the fluidity of the humanities, White's account of the nature of community is not nearly as axiomatic to the law and literature movement as is Posner's depiction of the "individual" to legal economists. Nevertheless, White's conception is increasingly representative of the literary-legalist's world view. Furthermore, with the exception of …

Reconceiving The Ninth Amendment, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

The courts long have protected constitutional rights that are not listed explicitly in the Constitution, but are they warranted in doing so? As scholars and commentators vigorously debate this and other questions about the appropriate role of judges in interpreting the Constitution, the Ninth Amendment has assumed increasing importance. Its declaration that "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people" has suggested to many that the set of rights protected by the Constitution is not dosed and that judges may be authorized to protect these "unenumerated" rights …

The Ninth Amendment And Constitutional Legitimacy: Foreword To The "Symposium On Interpreting The Ninth Amendment", Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Does the Constitution of the United States of America impart legitimacy on legislation enacted under its auspices? If so, how? Is a citizen bound in conscience to obey such legislation? If so, why? Does legislation create a duty of obedience simply because it was enacted by a group of persons calling themselves a "legislature," or is there some other reason? Would any constitution impart such legitimacy or is there something special about the character of those that do? If the latter, does the United States Constitution have the requisite character?

While I shall not definitively answer these questions in this …

A Civil Liberties Analysis Of Surrogacy Arrangements, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

In this essay the author comes to the following conclusions based upon a civil liberties analysis. First, surrogacy arrangements cannot be prohibited or criminalized. Second, the state cannot ban the exchange of money for surrogacy services, provided the money is paid for conception, gestation, and birth. Money, however, cannot be paid on condition that the gestational mother waive her parental rights over the child. Third, contractual provisions that require the gestational mother to waive her parental rights or her rights to privacy and autonomy are void and unenforceable. Fourth, when the child is born, both the gestational mother and the …

The Authoritarian Impulse In Constitutional Law, Robin West

Georgetown Law Faculty Publications and Other Works

Should there be greater participation by legislators and citizens in constitutional debate, theory, and decision-making? An increasing number of legal theorists from otherwise divergent perspectives have recently argued against what Paul Brest calls the "principle of judicial exclusivity" in our constitutional processes. These theorists contend that because issues of public morality in our culture either are, or tend to become, constitutional issues, all political actors, and most notably legislators and citizens, should consider the constitutional implications of the moral issues of the day. Because constitutional questions are essentially moral questions about how active and responsible citizens should constitute themselves, we …

Taking The Framers Seriously, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

This article reviews Taking the Constitution Seriously by Walter Berns (1987).

This review focuses on three of the key historical points that Walter Berns makes: his arguments that the Declaration of Independence is a Lockean document; that the Constitution encapsulates the political philosophy of the Declaration; and that the framers viewed the commercialization of society as a salutary development and were unambivalent champions of the right to property. Examination of these issues suggests that the ideological universe of the framers was far more complex than Berns indicates. While the revolutionary era witnessed a new concern with individual rights and a …