Law Commons^™

Separation Of Powers: Asking A Different Question, Suzanna Sherry

Suzanna Sherry

What I find most intriguing about Professor Casper's essay1 is its historical description of the founders' attitude not so much toward "separation of powers," but toward separation of powers "questions." In other words, I am more interested in how the founders approached questions and in the sources of their answers than in the substance of those answers. In comparing Professor Casper's description of the late eighteenth-century approach to separation of powers questions with the predominant way of asking separation of powers questions today, I find that the two are quite different. The difference in approach is equivalent to the difference …

Amendment Creep, Jonathan L. Marshfield

Jonathan Marshfield

Death, Desuetude, And Original Meaning, John F. Stinneford

John F. Stinneford

One of the most common objections to originalism is that it cannot cope with cultural change. One of the most commonly invoked examples of this claimed weakness is the Cruel and Unusual Punishments Clause, whose original meaning would (it is argued) authorize barbaric punishment practices like flogging and branding, and disproportionate punishments like the death penalty for relatively minor offenses. This Article shows that this objection to originalism is inapt, at least with respect to the Cruel and Unusual Punishments Clause. As I have shown in prior articles, the original meaning of “cruel and unusual” is “cruel and contrary to …

Saving Originalism, Robert J. Delahunty, John Yoo

John C Yoo

It is sometimes said that biographers cannot help but come to admire, even love, their subjects. And that adage seems to ring true of Professor Amar, the foremost “biographer” of the Constitution. He loves it not just as a governing structure, or a political system, but as a document. He loves the Constitution in the same way that a fan of English literature might treasure Milton’s Paradise Lost or Shakespeare’s Macbeth. He loves the Constitution not just for the good: the separation of powers, federalism, and the Bill of Rights. He also loves it for its nooks and crannies, idiosyncrasies, …

Foreign Precedent In State Const Interpretation, Jonathan L. Marshfield

Jonathan Marshfield

A Nonoriginalist Perspective On The Lessons Of History, Michael C. Dorf

Michael C. Dorf

No abstract provided.

Disparaging The Supreme Court: Is Scotus In Serious Trouble?, Brian Christopher Jones

Brian Christopher Jones

The piece argues that the Court is now subject to the widest and most sophisticated disparagement it has ever experienced, and that the tumultuous terms over the past two years have especially shown its vulnerability. Journalists and the general public are now thinking and speaking about the institution in a much different light than previously, and a deeper conversation about the proper role of the Court, especially in regard to constitutional review, has only just begun. Also, the piece argues that the justices’ disparagement of each other has contributed to this wider criticism, and that the recent health care and …

Experimenting With Religious Liberty The Quasi-Constitutional Status Of Religious Exemptions, Bruce Ledewitz

Bruce Ledewitz

Constitutional Interpretation And History: New Originalism Or Eclecticism?, Stephen M. Feldman

Stephen M. Feldman

The goal of originalism has always been purity. Originalists claim that heir methods cleanse constitutional interpretation of politics, discretion, and indeterminacy. The key to attaining purity is history. Originalist methods supposedly discern in history a fixed constitutional meaning. Many originalists now claim that the most advanced method -- the approach that reveals the purest constitutional meaning -- is reasonable-person originalism. These new originalists ask the following question: When the Constitution was adopted, how would a hypothetical reasonable person have understood the text? This Article examines historical evidence from the early decades of nationhood to achieve two goals. First, it demonstrates …

The Interpretation Of Constitutional History, Or Charles Beard Becomes A Fortuneteller (With An Emphasis On Free Expression), Stephen M. Feldman

Stephen M. Feldman

In "An Economic Interpretation of the Constitution of the United States", Charles A. Beard argued that the framers advocated for and defended the Constitution because of their personal economic interest, that the pursuit of common good was not so much a motive as a veneer. The current historical consensus is that Beard's thrust is incorrect. In this essay, I largely agree with this assessment, but his economic approach can add an important element to the discussion of constitutional history. And though his economic depiction does not closely fit the framing of the Constitution, it uncannily fits the Roberts Court's current …

Democracy And Renewed Distrust: Equal Protection And The Evolving Judicial Conception Of Politics, Bertrall L. Ross

Bertrall L Ross

Judicial interpretations of the Equal Protection Clause have undergone a major transformation over the last fifty years. A Supreme Court once suspicious of the democratic losses of discrete and insular minorities, now closely scrutinizes their democratic victories. A Court once active in structuring the democratic process to be inclusive of racial and other minorities, now views minority representation in the political process as essentially irrelevant. A Court once deferential to exercises of congressional power that enhanced the equal protection rights of minorities, now gives Congress much less leeway.

What explains these shifts? An easy explanation is that the Supreme Court …

Chief Justice Roberts's Marbury Moment: The Affordable Care Act Case (Nfib V. Sebelius), Stephen M. Feldman

Stephen M. Feldman

This essay is derived from the Jerry W. Housel/Carl F. Arnold Lecture, delivered on November 3, 2012 at the University of Wyoming College of Law. The work discusses Chief Justice John Roberts's decision in the Affordable Care Act case in light of its political significance as compared to the Madison v. Marbury case. The essay briefly summarizes the ACA case and goes on to focus on Congress's commerce power. It examines the constitutional doctrine that preceded the case and then explores how Roberts changed the doctrine.

Proportionality In Interpreting Constitutional Rights: A Comparison Between Canada, The United Kingdom And Singapore And Its Implications For Vietnam, Jack Tsen-Ta Lee

Jack Tsen-Ta LEE

Proportionality In Interpreting Constitutional Rights: A Comparison Between Canada, The United Kingdom And Singapore And Its Implications For Vietnam [Thuyết Cân Đối Trong Vấn Đề Giải Thích Các Quyền Về Hiến Pháp: So Sánh Giữa Canada, Liên Hiệp Các Vương Quốc Anh Và Singapore Và Kinh Nghiệm Cho Vìệt Nam], Jack Tsen-Ta Lee

Jack Tsen-Ta LEE

Few rights that are guaranteed by constitutions and bills of rights are expressed to be absolute. In many jurisdictions, the legislature is permitted to impose restrictions on rights for specified reasons and under particular conditions. However, constitutional or bill of rights text often do not expressly indicate how the courts should determine that applicants’ rights have been legitimately restricted. To this end, courts in jurisdictions such as Canada and the United Kingdom have adopted the European doctrine of proportionality. Essentially, this requires them to balance opposing types of public interests – the interest sought to be protected by the rights …

Getting Clear On The Originalism Debate: Is Originalism A Theory Of Constitutional Interpretation Or A Normative Rule Of Law?, Judy Hensley

Judy Hensley

The accompanying Article argues that proponents of Constitutional originalism have conflated conceptually distinct terms "meaning," "understanding" and intent, and that this blurring has permitted originalist theory to ignore a tension in its dual justifications rooted in democratic theory, on the one hand, and rooted in a standard semantic theory of intentionalism, on the other by showing that the demands of originalism’s underlying legal theoretical justification conflict with the those of its underlying semantic theoretical justifications. The conflict arises because the normatively significant agent in democratic theory is the Constitutional ratifiers whereas in the standard intentionalist semantic theory it is the …

Comstock, Originalism And The Necessary And Proper Clause, John T. Valauri

John T. Valauri

Constitutional law is plagued by meaning conflict at both the doctrinal and the theoretical levels. This article takes up two loci of such conflict and contest of constitutional meaning—the Necessary and Proper Clause (recently visited by the Supreme Court in the Comstock case) and the reasonable person device in the New Originalism--so that insight might be gained from the mutual comparison and illumination of their problems. In this process, dialogue replaces just “looking for one’s friends” in constitutional argument as various voices are considered and not silenced so that a favored one may be privileged. The result of this reciprocal …

A Legal Backgrounder On By-Elections, Jack Tsen-Ta Lee

Jack Tsen-Ta LEE

The expulsion of Yaw Shin Leong, the Member of Parliament for Hougang Single Member Constituency, from the Workers’ Party has once again thrust the issue of the Singapore Government’s policy on by-elections into the limelight. This opinion piece considers whether the Government is right in taking the view that it has wide discretion to determine when, and if, to hold a by-election; and the possible consequences of an existing Non-constituency Member of Parliament (NCMP) standing as a candidate in a by-election.

Оригиналистская Доктрина В Конституционном Праве Сша, Leonid G. Berlyavskiy

Leonid G. Berlyavskiy

Studying of concepts of the constitutional interpretation in the USA allows to get more deeply into essence of the Constitutional System of the State, to understand the reasons and sources of its evolutionary development. The originalism represents a wide spectrum of the concepts aimed at explanation of original understanding, value of the Constitution of the USA or intentions of its «founding fathers». The theoretical base of the originalism is the Legal Positivism embodied in XX century into the Normativism. The originalists are united in the American Constitution Society. Among the originalists two sects are allocated: textualists and intentionalists

Federalism And The Tug Of War Within, Erin Ryan

Erin Ryan

This book explores how constitutional interpreters struggle to reconcile the competing values that undergird American federalism, with real consequences for governance that requires local and national collaboration. Drawing examples from the response to Hurricane Katrina, climate governance, health reform, nuclear waste, and other problems that implicate both state and federal authority, it shows how federalism theory can inhibit effective multijurisdictional governance by failing to navigate the tensions within federalism itself. The book argues that American federalism is best understood through the “tug of war” between the good-governance principles that dual sovereignty fosters—including checks and balances, accountable governance, local autonomy, and …

The Future Interpretation Of The Constitution As A Result Of The Reelection Of President Barack Obama, Wilson Huhn

Wilson R. Huhn

On November 6, 2012, Barack Obama was reelected President of the United States. What effect will this have on the future interpretation of the Constitution? This article identifies 19 areas of constitutional law that would likely change if one more liberal justice is appointed to the Supreme Court.

The Future Interpretation Of The Constitution, Wilson Huhn

Wilson R. Huhn

On November 6, 2012, Barack Obama was reelected President of the United States. What effect will this have on the future interpretation of the Constitution? This article identifies 19 areas of constitutional law that would likely change if one more liberal justice is appointed to the Supreme Court.

Christian Scripture And American Scripture: An Instructive Analogy?, Gregory A. Kalscheur S.J.

Gregory A. Kalscheur, S.J.

This Review Essay examines the analogy between biblical interpretation and constitutional interpretation drawn by the eminent Yale church historian Jaroslav Pelikan in his provocative book, Interpreting the Bible and the Constitution. Part I of the Essay focuses on Pelikan’s discussion of the differences and analogies between the Bible and the Constitution that provide the foundation for methodological comparison. Part II of the Essay examines Pelikan’s effort to draw on the work of 19th-century theologian John Henry Newman in order to explore the fundamental problem of the relation between the authority of the original text and the authority of developing doctrine …

The Puzzling Parameters Of The Foreign Law Debate, Vlad F. Perju

Vlad Perju

No abstract provided.

In Defense Of Judicial Prudence, Nicholas Buccola, Aila Wallace

Nicholas Buccola

This essay has two basic aims. First, we want to show that the three major theories of judicial review – majoritarianism, perfectionism, and originalism – have at their core commitments to “cardinal virtues” – temperance, justice, fortitude. In the first part of the essay, we describe each of the cardinal virtues in conjunction with a description of each judicial philosophy and demonstrate how each virtue fits at the center of each philosophy. Second, we want to show how a full appreciation of the cardinal virtues should lead us to endorse “prudentialism” as the best approach to judicial review in the …

When Originalism Attacks: How Justice Scalia's Resort To Original Expected Application In Crawford V. Washington Came Back To Bite Him In Michigan V. Bryant (Forthcoming In 59 Drake L Rev ___ (Symposium Issue)(Summer 2011)), Brendan T. Beery

Brendan T Beery

Reverse Incorporation Of State Constitutional Law, Joseph Blocher

Joseph Blocher

State supreme courts and the United States Supreme Court are the independent and final arbiters of their respective constitutions, and may therefore take different approaches to analogous state and federal constitutional issues. Such issues arise often, because the documents were modeled on each other and share many of the same guarantees. In answering them, state courts have, as a matter of practice, generally adopted federal constitutional doctrine as their own. Federal courts, by contrast, have largely ignored state constitutional law when interpreting the federal constitution. In McDonald v. Chicago, to take only the most recent example, the Court declined to …

An Originalist Theory Of Precedent: The Privileged Place Of Originalist Precedent, Lee Strang

Lee J Strang

In this Article, I show that originalism retains a robust role for originalist precedent thereby enabling originalism to fit our legal practice and appropriate the normative attractiveness of stare decisis. This Article therefore fills a prominent gap in originalist theory.

First, I briefly review the debate in originalism over the role of constitutional precedent.

Second, I describe how participants in our legal practice can distinguish between originalist and nonoriginalist precedent using a standard called Originalism in Good Faith. Under Originalism in Good Faith, precedents that are a good faith attempt to articulate and apply the Constitution’s original meaning, are originalist …

An Originalist Theory Of Precedent: The Epistemic And Metaphysical Attitudes Toward Originalist Precedent, Lee Strang

Lee J Strang

No abstract provided.

Mining For Gold: The Constitutional Court Of South Africa's Experience With Comparative Constitutional Law, Ursula Bentele

Ursula Bentele

MINING FOR GOLD: THE CONSTITUTIONAL COURT OF SOUTH AFRICA’S EXPERIENCE WITH COMPARATIVE CONSTITUTIONAL LAW

Ursula Bentele

Abstract

Despite a long history of referring to foreign law in its opinions, the Supreme Court’s recent citations to such sources have caused heated controversy. Critics warn of threats to sovereignty as well as serious flaws in the way judges use outside authority. Largely missing from this debate is any probing examination of the actual practice of engaging with foreign authorities. This article attempts to fill the empirical void by analyzing closely one court that has used foreign law extensively: the Constitutional Court of …

An Originalist Defense Of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, And The Fifth Amendment, Frederick Mark Gedicks

Frederick Mark Gedicks

A longstanding scholarly consensus holds that the Due Process Clause of the Fifth Amendment protects only rights to legal process. Both this consensus and the occasional challenges to it have generally overlooked the interpretive significance of the classical natural law tradition that made substantive due process textually coherent, and the emergence of public-meaning originalism as the dominant approach to constitutional interpretation. This Article fills those gaps. One widely shared understanding of the Due Process Clause in the late eighteenth century encompassed judicial recognition of unenumerated substantive rights as a limit on congressional power. This concept of “substantive” due process originated …