Law Commons^™

Constitutionalizing Fetal Rights: A Salutary Tale From Ireland, Fiona De Londras

Michigan Journal of Gender & Law

In 1983, Ireland became the first country in the world to constitutionalize fetal rights. The 8th Amendment to the Constitution, passed by a referendum of the People, resulted in constitutional protection for “the right to life of the unborn,” which was deemed “equal” to the right to life of the “mother.” Since then, enshrining fetal rights in constitutions and in legislation has emerged as a key part of anti-abortion campaigning. This Article traces the constitutionalization of fetal rights in Ireland and its implications for law, politics, and women. In so doing, it provides a salutary tale of such an approach. …

Historians And The New Originalism: Contextualism, Historicism, And Constitutional Meaning, Martin S. Flaherty

Fordham Law Review

    Toward that end, this Foreword addresses three matters. First, it considers why the use of history in constitutional interpretation is inescapable. Next, it suggests that the Essays in this forum do not go far enough in debunking the idea of “public meaning” originalism as a serious alternative to previous approaches. Finally, the balance of this Foreword reviews the also perhaps inescapable misuses of history that constitutional interpretation invites and considers the type of misuse that public meaning originalism represents.

Historicism And Holism: Failures Of Originalist Translation, Jonathan Gienapp

Fordham Law Review

    For as long as the U.S. Constitution has existed, Americans have appealed to the history of its creation to interpret its meaning. But only since the advent of originalism—the well-known constitutional theory that requires interpreting the Constitution today in accordance with its original meaning—has historical study been so immediately implicated by constitutional interpretation. Despite potential, though, for meaningful exchange between originalists and historians, little has taken place. That originalism plays an ever-growing role in contemporary political culture only makes the lack of dialogue all the more unfortunate.

Outsourcing The Law: History And The Disciplinary Limits Of Constitutional Reasoning, Helen Irving

Fordham Law Review

    Debates about the use of history in constitutional interpretation find their primary nourishment in the originalism debate. This has generated a vast amount of literature, but also narrowed the terms of the debate. Originalism is a normative commitment wrapped in a questionable methodological confidence. Regardless of the multiple forms originalism takes, originalists are confident that the meaning (in the sense of intention) that animated the framing of the Constitution can be ascertained and, indeed, that they can ascertain it. The debate has largely focused, then, on whether modern-day scholars and jurists can ascertain original historical meaning or, alternatively, whether they …

Tone Deaf To The Past: More Qualms About Public Meaning Originalism, Jack Rakove

Fordham Law Review

    With some apologies for a vast degree of oversimplification, let us stipulate that there are two main forms of originalism. One is known as “semantic” or “public meaning” originalism. Its leading advocates include Lawrence Solum, Keith Whittington, and Randy Barnett (professional friends, all). The leading premise of semantic originalism is that the meaning of the constitutional text—or, more specifically, of its individual clauses—was fixed at the moment of its adoption. Under this view, the goal of constitutional interpretation is to recover that original meaning, and the best way to do that pivots on reconstructing how an informed reader, whether a …

Executive Acquiescence To Constitutional Norms And Judicial Decision-Making In South Africa, Andrew Konstant, Shayda Vance

University of Miami International and Comparative Law Review

No abstract provided.

“To Assemble Together For Their Common Good”: History, Ethnography, And The Original Meanings Of The Rights Of Assembly And Speech, Saul Cornell

Fordham Law Review

    The Whiskey Rebellion is not generally a major focus in constitutional histories or casebooks. Given this fact, it is hardly surprising that the 1795 case Respublica v. Montgomery seldom figures as more than a minor footnote in scholarly writing about early American constitutional development, if it receives any attention at all. The case has little precedential value for modern First Amendment doctrine and only obliquely implicates larger jurisprudential questions about the rights of assembly and freedom of expression. In strictly doctrinal terms, Montgomery is primarily about the obligation of a justice of the peace to put down a riot, not …

Fundamental Unenumerated Rights Under The Ninth Amendment And The Privileges Or Immunities Clause, Adam Lamparello

Akron Law Review

The failure to link the Ninth Amendment and Privileges or Immunities Clause for the purpose of creating unenumerated fundamental rights has been a persistent but rarely discussed aspect of the Court’s jurisprudence. That should change. There need not be an ongoing tension between the Court’s counter-majoritarian role and the authority of states to govern through the democratic process. If the Constitution’s text gives the Court a solid foundation upon which to recognize new rights and thereby create a more just society, then the exercise of that power is fundamentally democratic. The Ninth Amendment and Privileges or Immunities Clause provides that …

Liberty At The Borders Of Private Law, Donald J. Smythe

Akron Law Review

Liberty is both dependent upon and limited by the State. The State protects individuals from the coercion of others, but paradoxically, it must exercise coercion itself in doing so. Unfortunately, the reliance on the State to deter coercion raises the possibility that the State’s powers of coercion might be abused. There is, not surprisingly, therefore, a wide range of literature on the relationship between law and liberty, but most of it focuses on the relationship between public law and liberty. This Article focuses on the relationship between private law and liberty. Private laws are enforced by courts. Since the judiciary …

Eyes On Bangladesh's Disappearing Coasts: Proposed Constitutional Protections For Coastal Communities Particularly Vulnerable To Climate Change, Sabrina Persaud

Student Works

Climate change, a phenomenon caused by global warming, has impacted just about every part of the earth. As polar ice caps continue to melt, people across the world are experiencing record-breaking heat waves and warmer winters. These erratic weather patterns are just one of the many impacts of climate change. Changes in temperature have altered ecosystems and habitats for terrestrial and marine wildlife, and caused human health to deteriorate. Larger, more industrialized countries are the major contributors to climate change; however, smaller countries, such as Bangladesh, suffer the consequences. This article analyses the negative effects that climate change has had …

Federalism, Federal Courts, And Victims' Rights, Michael E. Solimine, Kathryn Elvey

Catholic University Law Review

One of the most striking developments in American criminal law and procedure in the past four decades has been the widespread establishment of victims’ rights at both the federal and state levels. A conspicuous exception to the success of the victims’ rights movement has been the failure of Congress to pass a proposed amendment to the U.S. Constitution that would uniformly establish such rights in all federal and state courts. Advanced by both private organizations and state officials, and with bipartisan support in Congress, bills establishing a Victims’ Rights Amendment (VRA) have been introduced several times in the past three …

"A Republic If You Can Keep It", Eric Lane

Constitution Day Lectures

On this day, over 200 years ago, thirty-nine brave delegates of the Constitutional Convention met for the last time to sign the document they had created, the U.S. Constitution.

This year, Eric Lane, Dean of the Maurice A. Deane School of Law and the Eric J. Schmertz Distinguished Professor of Public Law and Public Service at Hofstra University, gave a presentation, “A Republic If You Can Keep It.” The event was held in the Leo A. Guthart Cultural Center Theater, 1st Floor Axinn Library.

Taking Care Of Federal Law, Leah Litman

Articles

Article II of the Constitution vests the “executive power” in the President and directs the President to “take Care that the Laws be faithfully executed.” But do these provisions mean that only the President may execute federal law? Two lines of Supreme Court precedent suggest conflicting answers to that question. In several prominent separation-of-powers cases, the Court has suggested that only the President may execute federal law: “The Constitution requires that a President chosen by the entire Nation oversee the execution of the laws.” Therefore, the Court has reasoned, Congress may not create private rights of action that allow nonexecutive …

Book Review: Nothing To Lose But Our Chains: On Constitutional Disobedience, By Louis Michael Seidman, Carissima Mathen

Osgoode Hall Law Journal

Book review of Nothing To Lose But Our Chains: On Constitutional Disobedience, by Louis Michael Seidman.

Federalism As A Constitutional Principle, Ernest Young

University of Cincinnati Law Review

Justice O’Connor rightly called federalism “our oldest question of constitutional law.”1 But the constitutional balance between the nation and the states is hardly what the cool kids are talking about these days. My first-year con law students show up each Fall expecting to learn about same-sex marriage, flag burning, and abortion; they’re plainly disappointed when they pick up the syllabus and see how much of the course is going to be about government structure.

The first part of my talk resists that intuition. The notion that federalism is passé is so tragically wrongheaded that I can’t bear to leave it …

The Interdependence Of Our Freedoms, Warren E. Burger

Akron Law Review

IF I WERE TO GIVE A TITLE to what I want to say tonight, in this Bicentennial program, I think I would call it "The Interdependence of our Freedoms" and, in a sense, that is simply a more formal way of saying what the leaders of our revolution told each other, and the people, 200 years ago: we must hang together, or we will hang separately

The Hohfeldian Approach To Constitutional Cases, H. Newcomb Morse

Akron Law Review

INFERRED, OR AT THE MOST rebuttably presumed, is a slight acquaintanceship on the part of the reader with the work on jural opposites and jural correlatives by Professor W. Newcomb Hohfeld. The Founding Fathers, as though anticipating the coming of the Messianic logician, used all of the four Hohfeldian gravamen terms-rights, privileges, powers and immunities-in the Constitution of the United States,' and for this reason the author perceives a nexus between Hohfeldian logic and constitutional construction. The appropriate initial touchstone for contemporary use of this theory could appear to be the 1968 case of Flast v. Cohen, considering Mr. Justice …

The Declaration As Ur-Constitution: The Bizarre Jurisprudential Philosophy Of Professor Harry V. Jaffa, Patrick M. O'Neil

Akron Law Review

In his most recent work, Original Intent and the Framers of the Constitution: A Disputed Question, Professor Harry V. Jaffa finally has put together in one place the core of his constitutional hermeneutic with all the attendant elements of his jurisprudential philosophy. Stated in oversimplified terms, perhaps, Dr. Jaffa sees the Declaration of Independence as the source of the principles embodied in the Constitution of the United States and finds the Declaration, furthermore, to be an indispensable aid to the correct interpretation of that later document. In order to comprehend the error of Jaffa's claims, one must first consider several …

The Constitutional Right To Suicide, The Quality Of Life, And The "Slippery-Slope": An Explicit Reply To Lingering Concerns, G. Steven Neeley

Akron Law Review

[M]any courts and scholars appear to be motivated by yet another and more implicit concern with the so-called "quality of life" argument. [...] This ofttimes subtle design ultimately proves to be nothing more than a variation of the "slippery-slope" argument. This paper will contend that such arguments are logically fallacious and, at best, sway only by emotional appeal. As such, this style of argument should be afforded little forensic weight as it serves only to further confuse the debate over the constitutionality of selfdirected death.

Why A Fundamental Right To A Quality Education Is Not Enough, James Wilson

Akron Law Review

This article relies upon the political and economic analysis of such great thinkers as Aristotle and Rousseau to understand and normatively evaluate constitutional caselaw in general and education cases in particular. The article’s title contains its conclusion: a judicially created right to a quality education is a laudable, but possibly counterproductive and definitely insufficient condition, for creating a humane constitutional system. The rest of society needs to do far more to protect the average citizen and worker from the ever-ravenous ruling class. All the edification in the world will not mean much if there are only a few decent jobs …

Citizenship Education And The Free Exercise Of Religion, Tyll Van Geel

Akron Law Review

Part One of this article provides a broad-brush overview of constitutional doctrine as it bears on citizenship education in the public schools. The remaining parts of the article focus on a Free Exercise challenge to the introduction of a Callaneseque program of citizenship education in a public school. Part Two thus explicates Callan’s theory. Part Three outlines my approach to the Free Exercise Clause. Part Four applies that approach to a challenge brought against a Callanesque program of citizenship education. Part Five takes up other possible rights-based limits on the education power and offers a suggestion regarding how citizenship education …

Thinking About The Constitution At The Cusp, Mark Tushnet

Akron Law Review

Marshall’s understanding that schools have an implicit curriculum might be a better guide to thinking about what we should teach about the Constitution in this century than any substantive points I might make. One controversial example may illustrate Marshall’s understanding: just as he asked what lesson would be taught by delaying desegregation, so we might ask, “What lesson will be taught about the nature of our constitutional community if we adopt a large-scale system of vouchers that parents can use to assist them in sending their children to non-public schools?” Such a system would demonstrate B and would teach our …

The Passing Of The Cardozo Generations, Stephen E. Gottlieb

Akron Law Review

I want to make the following three points:

First, constitutional discourse has changed from the consequentialism of the generations of lawyers and judges who followed the model of Benjamin N. Cardozo to the formalism now ascendant in bench and bar.

Second, this change in constitutional rhetoric and argument has widened the disjunctions in argument. Polling data make clear that people have their own views of the Constitution. Knowledge about contrary official interpretations gives them vocabulary, but is relatively unlikely to change minds. Moral arguments and appeals to self-interest are more effective with the public.

Third, one consequence is that both …

Teaching Slavery In American Constitutional Law, Paul Finkelman

Akron Law Review

From 1787 until the Civil War, slavery was probably the single most important economic institution in the United States. On the eve of the Civil War, slave property was worth at least two billion dollars. In the aggregate, the value of all the slaves in the United States exceeded the total value of all the nations railroads or all its factories. Slavery led to two major political compromises of the antebellum period, as well as to the most politically divisive Supreme Court decision in our history. Vast amounts of political and legal energy went into dealing with the institution. It …

Teaching Free Speech From An Incomplete Fossil Record, Michael Kent Curtis

Akron Law Review

The second part of this symposium has been devoted to how we teach the Constitution. It has emphasized what gets left out. The reader will see a pattern. Paul Finkelman is a leading scholar on the law of slavery and the Constitution. Paul thinks – and I believe he is correct – that the immense influence of slavery on American constitutional law is too often neglected in our constitutional law courses. James Wilson has studied how political philosophers – Aristotle, Rousseau, James Harrington, and others – have understood the distribution of wealth as a central factor affecting how the constitution …

Education And The Constitution: Shaping Each Other & The Next Century, Elizabeth Reilly

Akron Law Review

In evaluating patients’ potential legal remedies, this Comment explores 1) the emergence of managed care organizations in the United States; 2) the creation of the Employee Retirement Income Security Act of 1974 (“ERISA”) and how it impacts patients’ claims against their MCOs; 3) the question of “quantity” versus “quality” in evaluating whether ERISA preemption exists; 4) three theories (direct liability, breach of fiduciary duty, and vicarious liability) used to hold MCOs liable for injuries resulting from malpractice or the wrongful denial of benefits; 5) state legislative attempts to circumvent ERISA’s inequitable preemption of claims; and 6) why, given ERISA’s failure …

John A. Bingham And The Story Of American Liberty: The Lost Cause Meets The "Lost Clause", Michael Kent Curtis

Akron Law Review

Nations have stories too. Ours is a story about the American Revolution against monarchy and aristocracy, a revolution based on the faith that all people are created equal and endowed by their Creator with certain unalienable rights. The revolution espoused the ideal that legitimate governmental power comes only from the consent of the governed.

In the old world, kings were sovereign. In America, the sovereign was “the people.” That ideal appeared in the preamble of the Constitution—a preamble that declared (somewhat inaccurately) that the Constitution came from “we the people” and was designed to assure liberty and justice. Though we …

Unintended Consequences Of The Fourteenth Amendment And What They Tell Us About Its Interpretation, Richard L. Aynes

Akron Law Review

Much of the literature, understandably, seeks to find out what the framers of the amendment or the ratifiers of the amendment “intended.”...This article treats that issue as well, but begins with a different question: Does the amendment have consequences which were unintended by the framers? Over one and a quarter centuries ago, Justice Joseph Bradley answered that question in the affirmative: “It is possible that those who framed the article were not themselves aware of the far ranging character of its terms.” I suggest those unintended consequences include the effect of the Citizenship Clause on the force of the Fourteenth …

Originalism As Thin Description: An Interdisciplinary Critique, Saul Cornell

Res Gestae

My essay was intended as a critique of originalism from the perspective of intellectual history. I pointed out that originalism lacked a rigorous empirical method for analyzing what texts meant in the past. I suppose in some sense it is flattering that Solum has devoted much of his recent article to an attack on my earlier essay. Of course, flattery aside, it would have been more useful if Solum had stated my thesis correctly. For purposes of clarity, I have juxtaposed Solum’s description of my argument with what my essay actually said. Readers will be able to judge for themselves …

An Analysis Of The Legality Of Television Cameras Broadcasting Juror Deliberations In A Criminal Case, Daniel H. Erskine Esq.

Akron Law Review

This work sets out the constitutional, statutory, and common law applicable to television’s intrusion into the jury room. The first section addresses federal constitutional considerations focusing on Article III Section 2, the Sixth Amendment, and the First Amendment. The second section analyzes certain federal rules and particular statutes applicable to televising federal judicial proceedings, as well as the rationale behind their enactment. Finally, the third section discusses comparative approaches addressing television’s intrusion into the courtroom, particularly focusing on recent jurisprudence from the European Court of Human Rights and the Scottish Court of Session.