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Full-Text Articles in Law
Constitutional Skepticism And Local Facts, Louis Michael Seidman
Constitutional Skepticism And Local Facts, Louis Michael Seidman
Georgetown Law Faculty Publications and Other Works
Are written constitutions evil? In his new book, Constitutional Idolatry and Democracy, Brian Christoper Jones argues that they are. He claims that written constitutions fail to unite societies, degrade democratic engagement, and obstruct necessary constitutional maintenance. This review of his book argues that he is mostly right about the effects of the American Constitution, but that the effects of other constitutions will vary depending upon local facts.
From Parchment To Dust: The Case For Constitutional Skepticism (Introduction), Louis Michael Seidman
From Parchment To Dust: The Case For Constitutional Skepticism (Introduction), Louis Michael Seidman
Georgetown Law Faculty Publications and Other Works
This is the introduction to a new book entitled "From Parchment to Dust: The Case for Constitutional Skepticism." The introduction sets out a preliminary case for constitutional skepticism and outlines the arguments contained in the rest of the book.
Constitutional Skepticism: A Recovery And Preliminary Evaluation, Louis Michael Seidman
Constitutional Skepticism: A Recovery And Preliminary Evaluation, Louis Michael Seidman
Georgetown Law Faculty Publications and Other Works
The aim of this article is to recover and reevaluate the American tradition of constitutional skepticism. Part I consists of a brief history of skepticism running from before the founding to the modern period. My aim here is not to provide anything like a complete description of the historical actors, texts, and events that I discuss. Instead, I link together familiar episodes and arguments that stretch across our history so as to demonstrate that they are part of a common narrative that has been crucial to our self-identity. Part II disentangles the various strands of skeptical argument. I argue that …
Depoliticizing Federalism, Louis Michael Seidman
Depoliticizing Federalism, Louis Michael Seidman
Georgetown Law Faculty Publications and Other Works
In his great biography of President Andrew Jackson, Arthur Schlesinger, Jr. celebrated Jackson’s defense of the rights of states and opposition to federal power. Yet as a mid-twentieth century liberal, Schlesinger was a strong supporter of the federal government and an opponent of states’ rights. Was Schlesinger’s position inconsistent? He did not think so, and neither does the author. In Jackson’s time, an entrenched economic elite controlled the federal government and used federal power to dominate the lower classes. State governments served as a focal point for opposition to this domination. By mid-twentieth century, the federal government was an engine …
Should We Have A Liberal Constitution?, Louis Michael Seidman
Should We Have A Liberal Constitution?, Louis Michael Seidman
Georgetown Law Faculty Publications and Other Works
In this brief essay, I attempt to accomplish two things. In Part I, I defend my proposed constitution against its putative liberal critics. In Part II, I argue that given contingent but highly plausible empirical assumptions, the differences between my constitution and a liberal constitution are less dramatic than one might suppose. There are often sound, nonliberal grounds for supporting institutional arrangements that appear liberal. It turns out, then, that liberalism is both less attractive (Part I) and less necessary (Part II) than its defenders suppose.
Is The Constitution Libertarian?, Randy E. Barnett
Is The Constitution Libertarian?, Randy E. Barnett
Georgetown Law Faculty Publications and Other Works
Ever since Justice Holmes famously asserted that “the Constitution does not enact Mr. Herbert Spencer’s Social Statics,” academics have denied that the Constitution is libertarian. In this essay, I explain that the Constitution is libertarian to the extent that its original meaning respects and protects the five fundamental rights that are at the core of both classical liberalism and modern libertarianism. These rights can be protected both directly by judicial decisions and indirectly by structural constraints. While the original Constitution and Bill of Rights provided both forms of constraints, primarily on federal power, it left states free to violate the …
Equality Theory, Marital Rape, And The Promise Of The Fourteenth Amendment, Robin West
Equality Theory, Marital Rape, And The Promise Of The Fourteenth Amendment, Robin West
Georgetown Law Faculty Publications and Other Works
During the 1980s a handful of state judges either held or opined in dicta what must be incontrovertible to the feminist community, as well as to most progressive legal advocates and academics: the so-called marital rape exemption, whether statutory or common law in origin, constitutes a denial of a married woman's constitutional right to equal protection under the law. Indeed, a more obvious denial of equal protection is difficult to imagine: the marital rape exemption denies married women protection against violent crime solely on the basis of gender and marital status. What possibly could be less rational than a statute …