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Full-Text Articles in Law
Originalism And Parking Tickets, Lawrence Rosenthal
Originalism And Parking Tickets, Lawrence Rosenthal
ExpressO
Originalism – the view that constitutional provisions should be interpreted as they were “understood at the time of the law’s enactment” – is the ascendant method of constitutional interpretation. In particular, originalists argue that the Constitution's open-ended provisions should be interpreted in light of their generally understood legal meaning at the time of their framing. An originalist view of due process -- entitling civil and criminal defendants to those procedures considered "due" at the time of framing -- would accordingly condemn any number of innovations in criminal and civil procedures' that alter framing-era procedural rights, such as the novel systems …
Review Essay: Using All Available Information, Max Huffman
Review Essay: Using All Available Information, Max Huffman
ExpressO
This is a review essay entitled “Using All Available Information,” in which I review and comment on Justice Stephen Breyer’s new book, Active Liberty: Interpreting Our Democratic Constitution, published in September 2005. Justice Breyer’s book, adapted from the Tanner Lectures given in 2005 at Harvard Law School, serves partly as a response to Justice Scalia’s 1997 volume A Matter of Interpretation: Federal Courts and the Law. I review Justice Breyer’s book in part by comparison to and contrast with Justice Scalia’s. I propose that much about Justice Breyer’s interpretive philosophy, which centers on determining the “purposes” of texts and interpreting …
New Light On The Decision Of 1789, Sai Prakash
New Light On The Decision Of 1789, Sai Prakash
ExpressO
In the Constitution’s earliest days, members of the House engaged in one of the nation’s most momentous constitutional debates. While deliberating on the Department of Foreign Affairs bill, representatives considered the mechanisms for removing executive officers. The final Act conveyed no removal authority but discussed what would happen when the president removed the Secretary of Foreign Affairs. The traditional view of the Decision, voiced by James Madison, Alexander Hamilton, and William Howard Taft, is that because the Act conveyed no removal authority and laid out what would happen when the president removed, the Act presumed that the president had a …
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 …