Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- Constitutional Law (31)
- Criminal Law (6)
- Legal History (5)
- Criminal Procedure (4)
- First Amendment (4)
-
- Fourth Amendment (4)
- Public Law and Legal Theory (4)
- Supreme Court of the United States (4)
- International and Area Studies (3)
- Law and Society (3)
- Social and Behavioral Sciences (3)
- Asian Studies (2)
- Civil Rights and Discrimination (2)
- Common Law (2)
- Fourteenth Amendment (2)
- Human Rights Law (2)
- Law Enforcement and Corrections (2)
- Legislation (2)
- Privacy Law (2)
- Sexuality and the Law (2)
- Administrative Law (1)
- Civil Procedure (1)
- Comparative and Foreign Law (1)
- Courts (1)
- Education Law (1)
- Evidence (1)
- Immigration Law (1)
- International Law (1)
- Jurisprudence (1)
- Institution
-
- Selected Works (8)
- SelectedWorks (5)
- University of Michigan Law School (4)
- Fordham Law School (3)
- Notre Dame Law School (3)
-
- Columbia Law School (2)
- George Washington University Law School (2)
- Louisiana State University (2)
- New York Law School (2)
- Singapore Management University (2)
- Touro University Jacob D. Fuchsberg Law Center (2)
- Wayne State University (2)
- American University Washington College of Law (1)
- BLR (1)
- Boston University School of Law (1)
- Georgia State University College of Law (1)
- Mitchell Hamline School of Law (1)
- Seton Hall University (1)
- St. Mary's University (1)
- The Catholic University of America, Columbus School of Law (1)
- The University of Southern Mississippi (1)
- USC Gould School of Law (1)
- University of Cincinnati College of Law (1)
- University of Florida Levin College of Law (1)
- University of Maine School of Law (1)
- University of Missouri School of Law (1)
- University of Richmond (1)
- University of South Carolina (1)
- University of Tennessee College of Law (1)
- Vanderbilt University Law School (1)
- Publication Year
- Publication
-
- Faculty Scholarship (5)
- Articles & Chapters (2)
- Faculty Publications (2)
- Fordham Law Review (2)
- GW Law Faculty Publications & Other Works (2)
-
- John F. Stinneford (2)
- Law Faculty Research Publications (2)
- Michigan Law Review (2)
- Notre Dame Law Review (2)
- Research Collection Yong Pung How School Of Law (2)
- Student Senate Enrolled Legislation (2)
- Touro Law Review (2)
- Articles in Law Reviews & Other Academic Journals (1)
- Book Chapters (1)
- Catholic University Law Review (1)
- David T. Hardy (1)
- Dean A Cantalupo Esq. (1)
- Dissertations (1)
- ExpressO (1)
- Faculty Articles (1)
- Faculty Articles and Other Publications (1)
- Georgia State University Law Review (1)
- Gerard V. Bradley (1)
- Jack Tsen-Ta LEE (1)
- Joel Hood (1)
- Journal Articles (1)
- Lara Pratt (1)
- Laura I Appleman (1)
- Maine Law Review (1)
- Mary L. Dudziak (1)
- Publication Type
- File Type
Articles 1 - 30 of 55
Full-Text Articles in Law
Reversing Incorporation, Ilan Wurman
Reversing Incorporation, Ilan Wurman
Notre Dame Law Review
It is originalist gospel that the Fourteenth Amendment’s Privileges or Immunities Clause was intended, at a minimum, to incorporate the Bill of Rights against the states. This Article revisits forty years of scholarship and concludes that this modern consensus is likely mistaken. Reconstructing antebellum discourse on fundamental rights reveals that the historical players assumed that every state must, as all free governments had to, guarantee and secure natural rights to their citizens. But that did not mean the states regulated these rights in the same way, nor did that dictate what the federal government’s role would be in guaranteeing and …
Multiculturalism And The Bill Of Rights, Arthur Schlesinger Jr.
Multiculturalism And The Bill Of Rights, Arthur Schlesinger Jr.
Maine Law Review
The Second Annual Frank M. Coffin Lecture on Law and Public Service was held on October 7, 1993. Professor Arthur M. Schlesinger, Jr. presented "Multiculturalism and the Bill of Rights."
The Prevailing Culture Over Immigration: Centralized Immigration And Policies Between Attrition And Accommodation, Antonios Kouroutakis
The Prevailing Culture Over Immigration: Centralized Immigration And Policies Between Attrition And Accommodation, Antonios Kouroutakis
Seton Hall Circuit Review
No abstract provided.
The Bill Of Rights As A Term Of Art, Gerard N. Magliocca
The Bill Of Rights As A Term Of Art, Gerard N. Magliocca
Notre Dame Law Review
This Article argues that the use of the “Bill of Rights” to describe the first
set of constitutional amendments emerged long after the Founding as a justification
for expanding federal power at home and abroad. In making that
claim, I challenge two common misconceptions about the Bill of Rights. One
is that the first set of amendments was known by that name from the start.
This is not true. James Madison never said that what was ratified in 1791 was
a bill of rights, and that label was not widely used for those provisions until
after 1900. The second fallacy …
U.S. State Building And The Second Amendment, Darren Dale Gil
U.S. State Building And The Second Amendment, Darren Dale Gil
Dissertations
This dissertation used a comparative case study strategy employing a mixed methods thematic content analysis approach1 to explore U.S. government support for Second Amendment freedoms as compared to other freedoms in the U.S. Bill of Rights in American-led state-building projects in Cuba (1898-1901), Germany (1945-1949), and Iraq (2003-2005). The dissertation tested for Republican and Democratic political party support regarding Second Amendment freedoms in U.S. state-building projects. Findings from the three case studies showed that the American government did not support individual arms rights in its state-building efforts as it did with the other nine Bill of Rights freedoms. Findings …
S16rs Sgr No. 5 (Student Bill Of Rights), Ariel Bergeron, Jeffery Anderson, James Mickler, Gabrielle Triche
S16rs Sgr No. 5 (Student Bill Of Rights), Ariel Bergeron, Jeffery Anderson, James Mickler, Gabrielle Triche
Student Senate Enrolled Legislation
No abstract provided.
Political Protections Of Fundamental Rights As A Means Of Mitigating The Weaknesses Of Legal Protections, Lara Pratt
Political Protections Of Fundamental Rights As A Means Of Mitigating The Weaknesses Of Legal Protections, Lara Pratt
Lara Pratt
The purpose of this paper is to highlight the important role of political protections of fundamental rights. The paper acknowledges that legal protections as a way of protecting rights against legislative encroachment, have definite strengths – in particular the court provides an determination as to the rights-compatibility of challenged legislation (whatever the consequence of such a determination may be), it offers authoritative interpretations of rights and provides a forum in which victims of (alleged) rights violations can challenge the legislation. However, at the same time, this paper points out that these strengths necessarily bring with them certain weaknesses – the …
Lawn Signs: A Fourth Amendment For Constitutional Curmudgeons, Andrew Ferguson
Lawn Signs: A Fourth Amendment For Constitutional Curmudgeons, Andrew Ferguson
Articles in Law Reviews & Other Academic Journals
What is the constitutional significance of the proverbial "keep off the grass" sign? This question — asked by curmudgeonly neighbors everywhere — has been given new currency in a recent decision by the United States Supreme Court. Indeed, Florida v. Jardines might have bestowed constitutional curmudgeons with significant new Fourth Amendment protections. By expressing expectations regarding — and control over — access to property, "the people" may be able to claim greater Fourth Amendment protections not only for their homes, but also for their persons, papers, and effects. This article launches a constitutionally grounded, but lighthearted campaign of citizen education …
Lawn Signs: A Fourth Amendment For Constitutional Curmudgeons, Stephen E. Henderson, Andrew G. Ferguson
Lawn Signs: A Fourth Amendment For Constitutional Curmudgeons, Stephen E. Henderson, Andrew G. Ferguson
Stephen E Henderson
Before There Were Mouseholes: Resurrecting The Non-Delegation Doctrine, Joel Hood
Before There Were Mouseholes: Resurrecting The Non-Delegation Doctrine, Joel Hood
Joel Hood
Most people are unaware that James Madison original drafted 17 amendments for the Bill of Rights. Even fewer know that the 16th was an express non-delegation amendment meant to protect the American people:
The powers delegated by the Constitution to the government of the United States, shall be exercised as therein appropriated, so that the Legislative shall never exercise the powers vested in the Executive or Judicial; not the Executive the powers vested in the Legislative or Judicial; nor the Judicial the powers vested in the Legislative or Executive.
There are now over five-hundred federal agencies and departments. Some are …
The Week After, Lawrence K. Karlton
Punishment Without Culpability, John F. Stinneford
Punishment Without Culpability, John F. Stinneford
John F. Stinneford
For more than half a century, academic commentators have criticized the Supreme Court for failing to articulate a substantive constitutional conception of criminal law. Although the Court enforces various procedural protections that the Constitution provides for criminal defendants, it has left the question of what a crime is purely to the discretion of the legislature. This failure has permitted legislatures to evade the Constitution’s procedural protections by reclassifying crimes as civil causes of action, eliminating key elements (such as mens rea) or reclassifying them as defenses or sentencing factors, and authorizing severe punishments for crimes traditionally considered relatively minor. The …
In Need Of Clarification: A Call To Define The Scope Of The Routine Booking Exception By Adopting The Legitimate Administrative Function Test, Elizabeth Parrish
In Need Of Clarification: A Call To Define The Scope Of The Routine Booking Exception By Adopting The Legitimate Administrative Function Test, Elizabeth Parrish
Catholic University Law Review
No abstract provided.
The Bill Of Rights And Originalism, Gerard V. Bradley
The Bill Of Rights And Originalism, Gerard V. Bradley
Gerard V. Bradley
Professor Bradley begins the final installment of the University of Illinois Law Review's year-long tribute to the Bill of Rights by proposing that the first ten Amendments, like the Constitution itself, be interpreted according to the original understanding of their ratifiers. Professor Bradley, though, narrows the scope of the exegetical inquiry to what he proposes is the only sound originalism - plain meaning, historically recovered. Professor Bradley argues that interpreting the Bill of Rights according to the text's plain meaning among persons politically active at the time of drafting avoids both the inflexibility and philosophical deficiencies of "snapshot" conservative originalism …
Punishment Without Culpability, John F. Stinneford
Punishment Without Culpability, John F. Stinneford
UF Law Faculty Publications
For more than half a century, academic commentators have criticized the Supreme Court for failing to articulate a substantive constitutional conception of criminal law. Although the Court enforces various procedural protections that the Constitution provides for criminal defendants, it has left the question of what a crime is purely to the discretion of the legislature. This failure has permitted legislatures to evade the Constitution’s procedural protections by reclassifying crimes as civil causes of action, eliminating key elements (such as mens rea) or reclassifying them as defenses or sentencing factors, and authorizing severe punishments for crimes traditionally considered relatively minor.
The …
The Rule Of Law At The Crossroads: Consequences Of Targeted Killing Of Citizens, Ryan P. Alford
The Rule Of Law At The Crossroads: Consequences Of Targeted Killing Of Citizens, Ryan P. Alford
Ryan P Alford
In December 2010 (in Al-Aulaqi v. Obama) the District Court held that the President's decision to authorize the targeted killing of American citizen could not be reviewed in any court. The article discusses whether this decision is compatible with the vision of the rule of law embodied in the Constitution and the Bill of Rights, which is illuminated with an explanation of the historical analysis of the key influences on the Framers. It concludes that the Al-Aulaqi decision is a more significant threat to our constitutional order than the indefinite detention enjoined by Hamdi v. Rumsfeld, and accordingly this warrants …
Privileges Or Immunities, Philip A. Hamburger
Privileges Or Immunities, Philip A. Hamburger
Faculty Scholarship
What was meant by the Fourteenth Amendment's Privileges or Immunities Clause? Did it incorporate the U.S. Bill of Rights against the states or did it do something else? In retrospect, the Clause has seemed to have the poignancy of a path not taken – a trail abandoned in the Slaughter-House Cases and later lamented by academics, litigants, and even some judges. Although wistful thoughts about the Privileges or Immunities Clause may seem to lend legitimacy to incorporation, the Clause actually led in another direction. Long-forgotten evidence clearly shows that the Clause was an attempt to resolve a national dispute about …
The Modern History Of Probable Cause, Wesley Oliver
The Modern History Of Probable Cause, Wesley Oliver
Wesley M Oliver
It is frequently assumed that probable cause, roughly as we understand it today, has, since time immemorial, been the standard allowing an officer to search or arrest. The reality is that probable cause has change a lot since the Bill of Rights was drafted. In the mid-nineteenth century, probable cause was no more than a pleading requirement in criminal cases -- and never has been more than a pleading requirement in criminal cases. Victims of crimes alone were able to seek arrest or search warrants by swearing that they had suffered an injury and that they had probable cause to …
Rethinking Proportionality Under The Cruel And Unusual Punishments Clause, John F. Stinneford
Rethinking Proportionality Under The Cruel And Unusual Punishments Clause, John F. Stinneford
John F. Stinneford
Although a century has passed since the Supreme Court started reviewing criminal punishments for excessiveness under the Cruel and Unusual Punishments Clause, this area of doctrine remains highly problematic. The Court has never answered the claim that proportionality review is illegitimate in light of the Eighth Amendment’s original meaning. The Court has also adopted an ever-shifting definition of excessiveness, making the very concept of proportionality incoherent. Finally, the Court’s method of measuring proportionality is unreliable and selfcontradictory. As a result, a controlling plurality of the Court has insisted that proportionality review be limited to a narrow class of cases. This …
Should New Bills Of Rights Address Emerging International Human Rights Norms? The Challenge Of 'Defamation Of Religion', Robert C. Blitt
Should New Bills Of Rights Address Emerging International Human Rights Norms? The Challenge Of 'Defamation Of Religion', Robert C. Blitt
Scholarly Works
The emerging international human rights norm of “defamation of religion,” an ongoing flashpoint in debates at the United Nations (UN) and elsewhere, merits the attention of all parties playing a role in the drafting of new bills of rights. This article uses the case study of defamation of religion, as an emerging norm and the current debate over a possible Australian bill of rights, to argue that a well-rounded drafting process. This drafting process should contemplate the relevancy and impact of emerging norms as a means of enhancing the process, deepening domestic understanding of rights, and ensuring an outcome instrument …
"Shall Be Bound Thereby": Structural Incorporation Via Article Vi, Dean A. Cantalupo Esq.
"Shall Be Bound Thereby": Structural Incorporation Via Article Vi, Dean A. Cantalupo Esq.
Dean A Cantalupo Esq.
This paper argues that certain provisions of the Bill of Rights, those that pertain to the administration of justice, were incorporated in 1791 against the States via the provision in Article VI binding State judges to the Constitution.
The True Cost Of Economic Rights Jurisprudence, Max Mccann
The True Cost Of Economic Rights Jurisprudence, Max Mccann
Max McCann
This Article discusses the distinction between economic and individual rights in contemporary political and legal discourse. As discussed herein, the phrase economic rights typically invokes notions of the ability to spend, save, and transfer wealth freely, as well as other related issues, such as the deregulation of industry and tax reform. In contrast, individual rights conjures ideas of being free in one’s person, including reproductive rights, free speech, and freedom of assembly.
With both historic and recent examples, this Article argues that the distinction between economic and individual rights is problematic at best. Rights spring forth from human interests, and …
The Constitution's Congress, Gary S. Lawson
The Constitution's Congress, Gary S. Lawson
Faculty Scholarship
In order to know whether Congress is (as the title of this panel wonders)1 "the broken branch,"'2 one needs a baseline describing how a normallyfunctioning Congress would look.3 Congress is a creation of the Constitution, and so the Constitution seems to be the obvious place to look for this baseline: what sort of people does the Constitution expect to serve in Congress and how does it expect those people to behave once they arrive?
The Lecture Notes Of St. George Tucker; A Framing Period View Of The Bill Of Rights, David T. Hardy
The Lecture Notes Of St. George Tucker; A Framing Period View Of The Bill Of Rights, David T. Hardy
David T. Hardy
This article reflects a transcription of the lecture notes of St. George Tucker, relevant to the newly ratified Bill of Rights. Tucker lectured law at the College of William and Mary from 1790 to 1804, and was well informed on the legal events of his day, with a brother in the first Senate and a friend in the First House. Tucker's notes reflect an astonishingly modern, and broad, view of the Bill of Rights' protections. His notes recently came to some prominence, being debated last term by majority and dissent in District of Columbia v. Heller.
Thurgood Marshall's Bill Of Rights For Kenya, Mary L. Dudziak
Thurgood Marshall's Bill Of Rights For Kenya, Mary L. Dudziak
Mary L. Dudziak
In Thurgood Marshall’s office after his death, draped over an armchair in the morning sun, was a cloak made of monkey skin. The cloak was from Kenya, and was among the Justice’s most treasured possessions. For years, Marshall told his friends and his law clerks stories about Kenya. The cloak was a gift, he told them, from the time he was made an honorary tribal chief. But even those closest to Marshall knew little about the Kenya adventures he so keenly remembered. This short essay illuminates Marshall’s work on a Bill of Rights for Kenya in the early 1960s as …
The Lost Meaning Of The Jury Trial Right, Laura I. Appleman
The Lost Meaning Of The Jury Trial Right, Laura I. Appleman
Laura I Appleman
This article contends that the right to a criminal jury trial right was originally a community right, not an individual one as currently understood. Using original historical research, I show that even the Sixth Amendment jury trial right, which sounds grammatically like a right of the accused, is actually a restatement of the collective right in Article III. The central claim of this Article is that nothing in the Sixth Amendment was meant to change this historical understanding and confer an individual right on defendants. My reading of the historical jury right has many important implications in both sentencing law …
Parker V. District Of Columbia: Putting The "I'S" In Milita, Katharine E. Kohm
Parker V. District Of Columbia: Putting The "I'S" In Milita, Katharine E. Kohm
University of Richmond Law Review
No abstract provided.
F07rs Sgr No. 10 (Students Bill Of Rights), Breaux, Palermo, Killibrew, Prestridge, Stuart
F07rs Sgr No. 10 (Students Bill Of Rights), Breaux, Palermo, Killibrew, Prestridge, Stuart
Student Senate Enrolled Legislation
No abstract provided.
A Textual And Historical Case Against A Global Constitution, Andrew Kent
A Textual And Historical Case Against A Global Constitution, Andrew Kent
Faculty Scholarship
he emerging conventional wisdom in the legal academy is that individual rights under the U.S. Constitution should be extended to noncitizens outside the United States. This claim - called globalism in my article - has been advanced with increasing vigor in recent years, most notably in response to legal positions taken by the Bush administration during the war on terror. Against a Global Constitution challenges the textual and historical grounds advanced to support the globalist conventional wisdom and demonstrates that they have remarkably little support. At the same time, the article adduces textual and historical evidence that noncitizens were among …
Reviving A Natural Right: The Freedom Of Autonomy Amendment, Michael Anthony Lawrence
Reviving A Natural Right: The Freedom Of Autonomy Amendment, Michael Anthony Lawrence
ExpressO
America in the early twenty-first century is a place where oppressive state constitutional amendments discriminate against millions of gay Americans; where compassionate end-of-life choice is illegal in 49 states and where the one state where it is legal is being sued by the U.S. government; where hundreds of thousands are arrested yearly and tens of thousands are in prison for private possession or use of marijuana; where a woman’s right to maintain control over her own reproductive decisions hangs by a thread; and where religious freedom is under relentless attack.
Whatever became of the ideal that represented the very foundation …