Law Commons^™

Is The First Amendment Entrenched? Rawls’ Curious Claim, Gordon D. Ballingrud

Gordon D Ballingrud

. This paper addresses a claim made by John Rawls in Lecture VI of Political Liberalism: any American constitutional amendment, ratified through Article V, which overturned the First Amendment would be illegitimate and justly ruled unconstitutional by the Supreme Court. Addressing the apparent contradiction that a duly enacted constitutional amendment can be unconstitutional, this paper reconstructs and critiques Rawls claim along two lines. First, I address Rawls’ philosophical claim as to the de facto entrenchment of the First Amendment, and the mechanisms that Rawls implicitly and explicitly purports to entrench it. I also address the claim that a First …

The Illusory Eighth Amendment, John F. Stinneford

UF Law Faculty Publications

Although there is no obvious doctrinal connection between the Supreme Court’s Miranda jurisprudence and its Eighth Amendment excessive punishments jurisprudence, the two are deeply connected at the level of methodology. In both areas, the Supreme Court has been criticized for creating “prophylactic” rules that invalidate government actions because they create a mere risk of constitutional violation. In reality, however, both sets of rules deny constitutional protection to a far greater number of individuals with plausible claims of unconstitutional treatment than they protect.

This dysfunctional combination of over- and underprotection arises from the Supreme Court’s use of implementation rules as a …

The Singapore Constitution: A Brief Introduction, Smu Apolitical

Student Publications

This primer seeks to provide an easy guide to those interested in finding out more about the Singapore Constitution. The Constitution provides for the structure of the government and the roles of the judiciary and the parliament. It also secures our fundamental liberties. Hence, some basic knowledge of the Constitution is useful for every citizen.

The primer starts by providing an introduction to the Singapore Constitution and explains the meaning of the concept of separation of powers among the executive, legislature and the judiciary. It also touches on the functions of the three entities, such as how laws are made …

Emergent Public Discourse And The Constitutional Debate In Tunisia: A Critical Narrative Analysis, Nathaniel Greenberg

Nathaniel Greenberg

The appointment of the Minister of Industry, the so-called “technocrat” Mehdi Jomaa, to form a caretaker government in Tunisia on the eve of the revolution’s third anniversary, threw into stark relief the country’s complex struggle for democracy following the January 14 revolution. The announcement came in the wake of the Islamist party Ennahdha’s sudden renunciation of the Prime Minister’s office in September, ostensibly a sign of cooperation in the face of mounting criticism surrounding the government’s failure to investigate the assassinations of two political opposition figures. A number of Western media outlets, including the New York Times, quickly absorbed the …

Brief Of Political Scientists And Historians As Amici Curiae In Support Of Respondent, National Labor Relations Board, Petitioner V. Noel Canning, No. 12-1281, United States Supreme Court (Nov. 25, 2013), David F. Forte, Hadley P. Arkes, Joseph M. Bessette, Nelson Lund, Jeremy A. Rabkin, Ralph A. Rossum

Law Faculty Briefs and Court Documents

The Recess Appointments Clause does not permit the unilateral appointments to the NLRB made by the President in this case. Those appointments - made during a three-day “intra-session” break when the Senate was meeting pro forma - are unique in the history of the Republic. They are also the culmination of unnecessary and inappropriate Executive overreaching. This overreaching has undermined a valuable Senate prerogative in a manner unfathomable to the Founders and inconsistent with the design of the Constitution.

The primary purpose of this brief is to show that adhering to the original meaning of the Recess Appointments Clause has …

On Checking The Artifacts Of Canaan: A Comment On Levinson's "Confrontation", Thomas L. Shaffer

Thomas L. Shaffer

No abstract provided.

Board Meeting Prayer Bound For Supreme Court In Church-State Case, Richard Garnett

Richard W Garnett

ABC News quoted Rick Garnett in the article by Ariane de Vogue. Richard Garnett, an expert on church-state issues at the Notre Dame Law School says, “At the heart of this new case is whether the court should stick with a relatively bright-line rule that treats legislative prayers as presumptively permissible, given their long use in our country, or whether the court should move to more of an all-things-considered inquiry that treats such prayers like Christmas displays and the like.”

Avoiding Constitutional Questions As A Three-Branch Problem, William K. Kelley

William K. Kelley

This article criticizes the cardinal rule of statutory construction known as the avoidance canon - that statutes must be interpreted to avoid raising serious constitutional questions - as failing to respect the proper constitutional roles of both Congress and the Executive. It argues that the avoidance canon in practice cannot be grounded in legislative supremacy, which is the common justification for it offered by the Supreme Court, because it assumes without foundation that Congress would always prefer not to come close to the constitutional line in enacting statutes. Instead, the avoidance canon creates pressure for courts to adopt statutory meanings …

The New Federalism, The Spending Power, And Federal Criminal Law, Richard W. Garnett

Richard W Garnett

It is difficult in constitutional-law circles to avoid the observation that we are living through a revival of federalism. Certainly, the Rehnquist Court has brought back to the public-law table the notion that the Constitution is a charter for a government of limited and enumerated powers, one that is constrained both by that charter's text and by the structure of the government it creates. This allegedly revolutionary Court seems little inclined, however, to revise or revisit its Spending Power doctrine, and it remains settled law that Congress may disburse funds in pursuit of ends not authorized explicitly in Article I …

Chief Justice Rehnquist's Enduring Democratic Constitution, Richard W. Garnett

Richard W Garnett

William H. Rehnquist's essay, The Notion of a Living Constitution, was delivered as the Will E. Orgain Lecture and then published thirty years ago, back when Rehnquist was still a relatively junior Associate Justice. The piece provides a clear and coherent statement of Rehnquist's judicial philosophy, and the Harvard Journal of Law and Public Policy and the Texas Law Review deserve thanks for their initiative and generosity in reproducing it, in memory of his life and work.

This introduction to Rehnquist's essay highlights his view that the Notion of a Living Constitution was to be resisted, not out of pious …

The Kaffatan Constitution, Liaquat Ali Khan

Ali Khan

This Kaffatan Constitution is transformative energy guarding the peoples of the world, animals, and all life species that exist or may come to exist in the future. It transforms communities across the world, whether these communities are nation-states, provinces, cities, town, neighborhoods, or virtual communities, and turn them into Free States and Perfect Communities. Free State is Perfect Community and Perfect Community is Free State. The two are synonymous. Perfect Community is the radiance of Supreme Truth. Perfect Community evolves out of ordinary communities if, when, and while it seeks guidance from Supreme Truth. You are Perfect Community. You evolve …

Severability, John C. Nagle

John Copeland Nagle

When a court holds a provision of a statute unconstitutional, a question remains regarding the validity of the remainder of the statute. The court may find that the unconstitutional provision may be severed from the statute and leave the remainder of the statute in effect. Alternatively, the court may hold that the unconstitutional provision cannot be severed and invalidate the entire statute. This article argues that the jurisprudence surrounding the issue of severability is confusing and inconsistent. After explaining the concept of severability and its ramifications for statutes, I trace the development of the current judicial test for determining when …

The Regressing Progress Clause: Rethinking Constitutional Indifference To Harmful Content In Copyright, Ned Snow

Faculty Publications

The Constitution's Progress Clause purports to restrict Congress's copyright power to works that "promote the Progress of Science and useful Arts." For most of the past two centuries, this Clause has set a minimal content-based standard for copyright eligibility. It denied protection for a work whose content did not rise to the level of useful knowledge, in that the work either lacked compositional value or portrayed an immoral or unlawful subject matter. As evidenced by judicial and scholarly writings, this construction of the Progress Clause was consistent with the 1903 decision in Bleistein v. Donaldson Lithographing Co., where the Court …

A Horse! My Constitution For A Horse! Wm. Shakespeare And Alex. Pope Serve The Delegate Laureates, Peter Aschenbrenner

Peter J. Aschenbrenner

‘We the people’ is justly celebrated, and was upon its first reading, by those assembled in Philadelphia. OCL, having studied the orthography and punctuography of the instrument, along with its semantic provenance, now turns to the meter of it all.

Bargaining With Bite: Missouri High Court's Constitutional Holdings Alter Public Sector Labor Law, Peter W. Bay

Missouri Law Review

Collective bargaining – negotiations over working conditions between an employer and representatives of their employees – appeared as early as 1891 as labor unions arose in response to the Industrial Revolution. Collective bargaining in private industry was recognized in 1935 by the National Labor Relations Act but was considered prohibited in the public sector. In 1945, the state of Missouri ratified its constitution, which included article 1, section 29, a provision protecting employee collective bargaining rights. That provision, however, was quickly interpreted by courts as applying only to private employees, and thus, public employees had little power to negotiate employment …

Commonwealth And Constitution, Robert S. Claiborne Jr.

University of Richmond Law Review

No abstract provided.

Miller V. Alabama: What It Is, What It May Be, And What It Is Not, Nancy Gertner

Missouri Law Review

In Miller v. Alabama, the Supreme Court of the United States, in a five to four opinion written by Justice Elena Kagan, held that mandatory life imprisonment without parole for defendants convicted of murder who were under age eighteen at the time of their crimes violated the Eighth Amendment to the United States Constitution. The decision raises a host of important questions that the University of Missouri School of Law’s recent symposium ably addressed. Is Miller a watershed opinion, prefiguring a new era of substantive Eighth Amendment jurisprudence that would apply to other imprisonment sentences across offender and offense categories? …

Eighth Amendment Differentness, William W. Berry Iii

Missouri Law Review

Part II of the Article provides the context for the Miller case, outlining the theoretical underpinnings of the Court’s Eighth Amendment jurisprudence. Part III describes the Court’s “different” jurisprudence, linking the concept of “juveniles are different” to the Court’s longstanding view that “death is different.” In Part IV, the Article demonstrates how the two possible interpretations of the Court’s statement in Miller that “juveniles are different” – as a character-based form of differentness and, in the case of juvenile LWOP, as a punishment-based form of differentness – create distinct theoretical bases for broadening the scope of the Eighth Amendment. Finally, …

The New Constitution Of The United States: Do We Need One And How Would We Get One?, Jack M. Beermann

Faculty Scholarship

Government in the United States has some serious problems. At the federal level, is the problem of gridlock. The United States Congress seems unable or unwilling to do anything about anything (although it must have done something to run up more than $16 trillion in debts). Forget about addressing problems such as global warming, income inequality, failing schools, economic stimulus or you name it. How bad is it, really? Has the United States become ungovernable, and is the Constitution to blame? In my view, it’s a mixed bag. Some aspects of the United States government work very well, others are …

The Constitutional Theory Of The Fourth Amendment, Gerard V. Bradley

Gerard V. Bradley

No abstract provided.

Beguiled: Free Exercise Exemptions And The Siren Song Of Liberalism, Gerard V. Bradley

Gerard V. Bradley

No abstract provided.

The Fourth Amendment Status Of Stored E-Mail: The Law Professors' Brief In Warshak V. United States, Susan Freiwald, Patricia L. Bellia

Patricia L. Bellia

This paper contains the law professors' brief in the landmark case of Warshak v. United States, the first federal appellate case to recognize a reasonable expectation of privacy in electronic mail stored with an Internet Service Provider (ISP). While the 6th circuit's opinion was subsequently vacated and reheard en banc, the panel decision will remain extremely significant for its requirement that law enforcement agents must generally acquire a warrant before compelling an ISP to disclose its subscriber's stored e-mails. The law professors' brief, co-authored by Susan Freiwald (University of San Francisco) and Patricia L. Bellia (Notre Dame) and signed by …

The Law Of Nations As Constitutional Law, Anthony J. Bellia, Bradford R. Clark

Anthony J. Bellia

Courts and scholars continue to debate the status of customary international law in U.S. courts, but have paid insufficient attention to the role that such law plays in interpreting and upholding several specific provisions of the Constitution. The modern position argues that courts should treat customary international law as federal common law. The revisionist position contends that customary international law applies only to the extent that positive federal or state law has adopted it. Neither approach adequately takes account of the Constitution’s allocation of powers to the federal political branches in Articles I and II or the effect of these …

The Alien Tort Statute And The Law Of Nations, Bradford R. Clark, Anthony J. Bellia Jr.

Anthony J. Bellia

Courts and scholars have struggled to identify the original meaning of the Alien Tort Statute (ATS). As enacted in 1789, the ATS provided "[t]hat the district courts... shall... have cognizance... of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States." The statute was rarely invoked for almost two centuries until, in the 1980s, lower federal courts began reading the statute expansively to allow foreign citizens to sue other foreign citizens for violations of modern customary international law that occurred outside the United States. In 2004 …

Dual Sovereignty In Traditional Judaism And Liberal Democracy, William Galston

Touro Law Review

No abstract provided.

Navigating The Space Between Dueling Sovereigns, Miriam Galston

Touro Law Review

No abstract provided.

Divided Loyalties: The Problem Of “Dual Sovereignty” And Constitutional Faith, Sanford Levinson

Touro Law Review

Sanford Levinson provides the inaugural lecture of the new Jewish Law Institute at Touro Law School. He focuses on some of the ways that he finds himself constantly thinking of what might be termed "meta-issues" that arise in his joint study of, and intellectual confrontation with, Jewish law and American constitutional law.

Table Annexed To Article: Hamilton And Madison Deploy ‘Constitution’ In The Federalist Papers: Semantic Values Surveyed, Peter Aschenbrenner

Peter J. Aschenbrenner

The eighty-five Federal Papers (authors James Madison and Alexander Hamilton; John Jay contributed five) are justifiably famous as elaborations of constitutional structure and text, sans citation to the convention, understandably, since secrecy imposed by Standing Order on May 28th was continued indefinitely (at the pleasure/non-action of Congress) on September 17th. Counts on semantic value/s of ‘constitution’ and ‘constitutional’ are surveyed.

The Dead Hand Of The Architect, Daniel A. Farber

Daniel A Farber

No abstract provided.

The Ninth Amendment And Individual Rights: A Reply To Professor Mcaffee, Daniel A. Farber

Daniel A Farber

No abstract provided.