Law Commons^™

What Is A Postmodern Constitutionalism?, J. M. Balkin

Michigan Law Review

I begin with a puzzle. It must certainly strike one as odd that the subject of postmodern constitutional law arises at a time when the actual arbiters of the Constitution - the federal judiciary and in particular the Supreme Court of the United States - appear to be more conservative than they have been for many years, and indeed, are likely to remain so for the foreseeable future. Postmodernism is often associated with what is new, innovative, and on the cutting edge of cultural development. Yet if we were to define the elements of a postmodern constitutional culture, it would …

The Age Of Rights, Stephen D. Sencer

Michigan Law Review

A Review of The Age of Rights by Louis Henkin

On Reading The Constitution, Bruce Fein

Michigan Law Review

A Review of On Reading the Constitution by Laurence H. Tribe and Michael C. Dorf

The Supreme Court As Constitutional Interpreter: Chronology Without History, Herbert Hovenkamp

Michigan Law Review

A Review of The Constitution in the Supreme Court: The Second Century, 1888-1986 by David P. Currie

The Newly Disenfranchised: A Constitutional Right Withheld, Herman R. Brown Jr.

University of the District of Columbia Law Review

Traditionally, Blacks and women have been denied their constitutional rights based strictly on race and sex. This brand of disenfranchisement has in many instances made these groups feel like "second class" citizens. Although recently, these groups have been able to share in some rights previously withheld, the "playing field of equality of rights" is still not level. For example, women still earn less pay for comparable work performed by their male counterparts. Blacks continue to be shut out of the system based strictly on race. Just as women and Blacks have been denied their rights, other groups have suffered similar …

The Failed Discourse Of State Constitutionalism, James A. Gardner

Michigan Law Review

In this article, I approach these questions in two steps. First, I examine the status of state constitutional law as it is practiced today. I conclude that, contrary to the claims of New Federalism, state constitutional law today is a vast wasteland of confusing, conflicting, and essentially unintelligible pronouncements. I argue that the fundamental defect responsible for this state of affairs is the failure of state courts to develop a coherent discourse of state constitutional law that is, a language in which it is possible for participants in the legal system to make intelligible claims about the meaning of state …

Searches And Seizure

Touro Law Review

No abstract provided.

Reflections On Recent Remarks Of "That Unnecessary And Dangerous Officer", Roger J. Miner '56

Flag Day & Law Day Ceremonies

No abstract provided.

The Constitution As Literature, James Boyd White

Book Chapters

Although presumably no one would say that the Constitution offers its readers an experience that cannot be distinguished from reading a poem or a novel, there is nonetheless a sense in which it is a kind of highly imaginative literature in its own right (indeed its nature as law requires that this be so), the reading of which may be informed by our experience of other literary forms. But to say this may be controversial, and the first step toward understanding how such a claim can be made may be to ask what it is we think characterizes imaginative literature …

United States Supreme Court: 1990-91 Term, Paul C. Giannelli

Faculty Publications

No abstract provided.

United States Supreme Court: 1991-92 Term, Paul C. Giannelli

Faculty Publications

No abstract provided.

A Matter Of "Governing' Importance": Providing Business Defamation And Product Disparagement Defendants Full First Amendment Protection, Lisa Magee Arent

Indiana Law Journal

No abstract provided.

The Dormant Commerce Clause After Garcia: An Application To The Interstate Commerce Of Sanitary Landfill Space, James Hinshaw

Indiana Law Journal

No abstract provided.

Abstract Principle V. Contextual Conceptions Of Harm: A Comment On R. V. Butler, Jamie Cameron

Articles & Book Chapters

This comment provides a critique of the Supreme Court of Canada's decision in R. v. Butler, which held that section 163(8) of the Criminal Code, defining obscenity, is a reasonable limit on freedom of expression under section 1 of the Canadian Charter of Rights and Freedoms. Before discussing the Charter, the Court expanded the scope of section 163(8) to include a prohibition against sexually explicit material that is degrading or dehumanizing. Initially, the author is critical of the Court's methodology, which enlarged section 163(8) at the expense of expressive freedom, without even mentioning the Charter. Once the Court had interpreted …

Original Intent V. Revisionism: The Great Constitutional Debate, Eric Barnes

Brigham Young University Prelaw Review

The due process clause is one of the many battlegrounds upon which two diametrically opposed camps of judicial decision makers fight out their rulings-rulings which effect the mass of citizenry and the balance of power in America's constitutional system. These opposing camps are the originalists and revisionists.

Era And The Bill Of Rights, Teresa Haddock

Brigham Young University Prelaw Review

The Equal Rights Amendment (ERA) proposed by Congress on 22 March 1972 would have become valid if ratified by three-fourths of the states within a seven year period from the date of submission. Thirty-five of the required thirty-eight states ratified the amendment. Before the time expired, Idaho, Nebraska, Tennessee, Kentucky, and South Dakota had all attempted to rescind their ratifications, but were denied the option to change their vote. Also, in October of 1978, Congress decided to extend the seven-year period until 30 June 1982. Four members of the Idaho legislature brought suit in Idaho vs. Freeman. The plaintiffs argument …

Prolegomena To A Meaningful Debate Of The “Unwritten Constitution” Thesis, Thomas B. Mcaffee

Scholarly Works

Seventeen years ago Professor Grey launched the modern debate over the idea of an unwritten Constitution by suggesting that the key to defending modern fundamental rights decision-making might be to rediscover the founding generation's commitment to natural law and unwritten sources of basic rights. Some modern Supreme Court decisions, Grey suggested, might be better justified by reliance upon the methodology suggested by Justice Chase's famous opinion in Calder v. Bull than by looking to the justification for judicial review offered by Chief Justice Marshall in Marbury v. Madison. Grey's arguments for the unwritten Constitution idea has struck a chord …

Advice And Consent: Ensuring Judicial Freedom, Patrick J. Leahy

University of Richmond Law Review

Throughout this nation's history, Americans have turned to the Supreme Court to protect their rights against excesses of the legislative and executive branches. To protect this crucial role of the Court, the Framers realized that neither the executive nor the legislature should have the power to cast the Court in its own image. To prevent this usurpation of one branch by another, the Framers wisely required the President to obtain the advice and consent of the Senate in making appointments to the Supreme Court.

Constitutional Theory Beyond Left And Right, Gerard V. Bradley

Journal Articles

Hadley Arkes: Beyond the Constitution. (Princeton: Princeton University Press, 1990. Pp. 288. $24.95.)

Hadley Arkes's latest book is Beyond the Constitution and it is virtually a tour de force. Author of The Philosopher in The City and First Things, in the new work Arkes persuasively criticizes both liberal and conservative constitutionalism as well as their common legal theoretical base, displaying all the while the philosophical astuteness and elegant prose his prior work has accustomed readers to expect. Anyone remotely interested in constitutional law should read this book.

Limits Of First Amendment Rights, Troy Salisbury

Brigham Young University Prelaw Review

Under the First Amendment of the Constitution such rights as the freedom of speech and assembly and other basic rights are set forth. People often feel that unpopular groups such as flag-burners or skinheads should have their First Amendment rights limited. Often individuals find it hard to tolerate the radical opinions of these groups. Nevertheless, their rights can only be restricted if, in the course of their actions, they directly infringe upon the rights of others. This point can be better illustrated by discussing a hypothetical situation in which a group's rights would have to be limited.

Legislative Veto Of Administrative Rules In Missouri: A Constitutional Virus, Kenneth D. Dean

Faculty Publications

The purpose of this Article is to examine the constitutionality of the legislative veto as it exists in Missouri, specifically the powers of the JCAR. Part II of the Article traces the history of the JCAR and the various types of powers given to it. Part III of the Article examines the experiences of the United States government and other states to determine their applicability to Missouri. Part IV examines the various grants of power to determine whether they comply with the Missouri constitution.

Abstract Democracy: A Review Of Ackerman's We The People, Terrance Sandalow

Reviews

We the People: Foundations is an ambitious book, the first of three volumes in which Professor Ackerman proposes to recast conventional understanding of and contemporary debate about American constitutional law. Unfortunately, the book's rhetoricinflated, self-important, and self-congratulatory-impedes the effort to come to terms with its argument. How, for example, does one respond to a book that opens by asking whether the reader will have "the strength" to accept its thesis? Or that announces the author's intention of "engaging" two of the most influential works of intellectual history of the past several decades-and then discusses one in two and one-half pages …

Discovering Our Connections: Race And Gender In The Law Symposium Keynote Address, Margaret Walker Alexander

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Reed Dickerson’S Originalism — What It Contributes To Contemporary Constitutional Debate, Thomas B. Mcaffee

Scholarly Works

In this article the author offers his personal gratitude for the work of Reed Dickerson, along with some thoughts on his important contributions to our understanding of the interpretive process. As a young scholar in need of help in grappling with the continuing debate over constitutional interpretation, the author turned, at the suggestion of colleagues, to Reed Dickerson’s impressive book on statutory interpretation. The hours spent attempting to ingest Reed’s thoughtful work were amply rewarded, and the author took the occasion of publishing an article on the original intent debate to refer in an initial footnote to his intellectual debt …

The Bill Of Rights, Social Contract Theory, And The Rights “Retained” By The People, Thomas B. Mcaffee

Scholarly Works

The Ninth Amendment provides that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” There is no question that this Amendment was designed as a savings clause, to ensure that the specification of particular rights would not raise an inference that the Bill of Rights exhausted the rights which the people held as against the newly-created national government. But there is an ongoing debate as to nature of these additional rights retained by the people and as to the sort of claim they might support against the exercise …

Reconstructing Liberty, Robin West

Georgetown Law Faculty Publications and Other Works

It is commonly and rightly understood in this country that our constitutional system ensures, or seeks to ensure, that individuals are accorded the greatest degree of personal, political, social, and economic liberty possible, consistent with a like amount of liberty given to others, the duty and right of the community to establish the conditions for a moral and secure collective life, and the responsibility of the state to provide for the common defense of the community against outside aggression. Our distinctive cultural and constitutional commitment to individual liberty places very real restraints on what our elected representatives can do, even …

The Sleeper Wakes: The History And Legacy Of The Twenty-Seventh Amendment, Richard B. Bernstein

Articles & Chapters

No provision of the United States Constitution has a more drawn-out, tortured history than the Twenty-seventh Amendment, which was ratified more than two centuries after Representative James Madison introduced it in the First Congress.

In this Article, Professor Bernstein traces the Amendment's origins to the legislative political culture of the late eighteenth century, as influenced by the controversy over ratifying the Constitution. He then examines the perennial controversies over congressional compensation in American history, elucidating how in the 1980s and 1990s public anger at Congress reached critical mcm sufficient to propel the 1789 compensation amendment into the Constitution. Finally, this …

The Abrogation Of Expert Dissection In Popular Music Copyright Infringement Cases: Suggested Modifications For The Implementation Of The Lay Listener Standard, Matthew W. Daus

Touro Law Review

No abstract provided.

Civil Service Appointments And Promotions

Touro Law Review

No abstract provided.

Comptroller And Attorney-General

Touro Law Review

No abstract provided.