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Todd E. Pettys

SelectedWorks

2008

Articles 1 - 2 of 2

Full-Text Articles in Law

Popular Constitutionalism And Relaxing The Dead Hand: Can The People Be Trusted?, Todd E. Pettys Jan 2008

Popular Constitutionalism And Relaxing The Dead Hand: Can The People Be Trusted?, Todd E. Pettys

Todd E. Pettys

A growing number of constitutional scholars are urging the nation to rethink its commitment to judicial supremacy. Popular constitutionalists argue that the American people, not the courts, hold the ultimate authority to interpret the Constitution’s many open-ended provisions whose meanings are reasonably contestable. This Article defends popular constitutionalism on two important fronts. First, using originalism as a paradigmatic example of the ways in which courts frequently draw constitutional meaning from sources rooted deep in the past, the Article contends that defenders of judicial supremacy still have not persuasively responded to the familiar dead-hand query: Why should constitutional meanings that prevailed …


The Immoral Application Of Exclusionary Rules, Todd E. Pettys Jan 2008

The Immoral Application Of Exclusionary Rules, Todd E. Pettys

Todd E. Pettys

In both civil and criminal cases today, judges routinely withhold relevant evidence from jurors, fearing that jurors would use it in an irrational or legally impermissible manner. Forcing jurors to take responsibility for a verdict based upon a government-screened pool of evidence stands in sharp contrast to the way we ordinarily think about government efforts to withhold potentially useful information from citizens faced with important decisions. The First Amendment’s guarantee of the freedom of speech, for example, reflects a moral judgment that the government offends its citizens’ deliberative autonomy when it restricts speech based upon fears about what that speech …