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Articles 1 - 7 of 7
Full-Text Articles in Law
The Modest Original Meaning Of The Commerce Clause, Calvin H. Johnson
The Modest Original Meaning Of The Commerce Clause, Calvin H. Johnson
ExpressO
A sample of 157 cites to “regulation of commerce” in the constitutional debates shows that the power given to Congress to regulate commerce was not a very important power at the time and not a major explanation of why the Constitution was adopted. The four most important programs espoused by the framers under the cover of regulation of commerce were (1) nationalization of the state “imposts” or import taxes, (2) retaliation against the British for restrictions on West Indies shipping; (3) port preferences, and (4) an American Navigation Act, restricting access to American ports to American ships. All were deep-water …
Constitutional Interpretation And Coercive Interrogation After Chavez V. Martinez, John T. Parry
Constitutional Interpretation And Coercive Interrogation After Chavez V. Martinez, John T. Parry
ExpressO
Using the Supreme Court's decision last Term in Chavez v. Martinez as a launching pad, this article reveals and addresses fundamental tensions in constitutional interpretation, the law of interrogation, and civil rights litigation. First, this article highlights the importance of remedies to the definition of constitutional rights, which compels us to jettison the idea of prophylactic rules and accept Congress's role in constitutional interpretation. Armed with these insights, the article next considers the law of coercive interrogation. I explain why the privilege against self-incrimination is more than a trial right, and I redefine the central holding of Miranda to take …
Constitutional Theory In A Nutshell, Thomas E. Baker
Constitutional Theory In A Nutshell, Thomas E. Baker
Faculty Publications
This article provides a nutshell description of the leading theories and identifies some of the leading theorists on the Constitution. The unit of currency here is the academic law review article, not the Supreme Court decision. The citations here provide illustrative examples of the vast body of literature. The discussion provides preliminary sketches of an intellectual landscape that is vast and often foreboding to the beginner. This article is organized around three basic interpretative questions: Who has the authority to interpret the Constitution? What are the legitimate sources of meaning for interpreting the Constitution? How is the Constitution interpreted within …
The Constitution And The Public Trust, Robert G. Natelson
The Constitution And The Public Trust, Robert G. Natelson
Faculty Law Review Articles
This article explores whether the recurrent references to the public trust were merely empty phrases or whether it really was a "general purpose" of the founders to impose fiduciary standards on the federal government. Part II lists some fiduciary duties potentially applicable to government. Part III summarizes the process by which the Constitution was drafted, debated, and ratified. Part IV examines works by some of the founder's favorite authors and who, the author finds, frequently advocated imposing fiduciary standards on government officials. Part V discusses the role of public trust concepts in the drafting, submission, and ratification of the Constitution. …
The Agency Law Origins Of The Necessary And Proper Clause, Robert G. Natelson
The Agency Law Origins Of The Necessary And Proper Clause, Robert G. Natelson
Faculty Law Review Articles
In this article the author suggests that the meaning of the Necessary and Proper Clause has seemed unclear to modern commentators because they have not been looking in the right place. In Part II the author subjects the Necessary and Proper Clause to textual analysis, incorporating in that analysis the eighteenth century definitions of words and shows why textual analysis alone cannot clarify some uncertainties. Part III examines the drafting history of the Clause at the federal constitutional convention, concluding that the primary drafters intended it to incorporate concepts from contemporary agency law, specifically the doctrine of implied incidental agency …
Functional Departmentalism And Nonjudicial Interpretation: Who Determines Constitutional Meaning?, Dawn E. Johnsen
Functional Departmentalism And Nonjudicial Interpretation: Who Determines Constitutional Meaning?, Dawn E. Johnsen
Articles by Maurer Faculty
Published as part of a Duke Law School symposium on Conservative and Progressive Legal Orders, this article considers the appropriate role of the political branches - Congress and the President - in the development of constitutional meaning, including the extent of presidential and congressional authority to act on constitutional views at odds with judicial doctrine. The article discusses deficiencies in strong forms of both judicial supremacy (such as that behind the Rehnquist Court's recent limits on Congress's section 5 authority) and what is described in the academic literature as departmentalism (which emphasizes near-plenary authority for each branch to act on …
Constitutional And Statutory Interpretation, Kent Greenawalt
Constitutional And Statutory Interpretation, Kent Greenawalt
Faculty Scholarship
This article discusses relatively established theories with respect to statutory and constitutional interpretation. Written constitutions and statutes provide authoritative directions for officials and citizens within liberal democracies. The article mentions that descriptive and normative theories connect with each other in critical respects. Statutory interpretation involves the construction and application of provisions adopted by legislatures. The theoretical questions about interpreting statutes and constitutions suggest more general questions about the meaning of human communications; and scholars of philosophy of language, linguistics, literary theory, and religious hermeneutics discuss analogous issues. This article discusses an important issue in statutory interpretation that is the nature …