Constitutional Law Commons^™

Engaging The Spectrum: Civic Virtue And The Protection Of Student Voice In School Sponsored Forums, 24 J. Marshall L. Rev. 339 (1991), Robert R. Verchick

UIC Law Review

No abstract provided.

Impeachment Exception To The Exclusionary Rules: Policies, Principles, And Politics, The , James L. Kainen

Faculty Scholarship

The exclusionary evidence rules derived from the Fourth, Fifth, and Sixth Amendments continue to play an important role in constitutional criminal procedure, despite the intense controversy that surrounds them. The primary justification for these rules has shifted from an "imperative of judicial integrity" to the "deterrence of police conduct that violates... [constitutional] rights." Regardless of the justification it uses for the rules' existence, the Supreme Court continues to limit their breadth "at the margin," when "the acknowledged costs to other values vital to a rational system of criminal justice" outweigh the deterrent effects of exclusion. The most notable limitation on …

Eras Of The First Amendment, David S. Yassky

Elisabeth Haub School of Law Faculty Publications

Part I will begin the story with the Founders' understanding of the structural role of the First Amendment. In this understanding, the First Amendment served as a bulwark of state independence. Along with the rest of the Bill of Rights, the First Amendment had as its primary purpose maintenance of the federal system--or, more precisely, protection of the states against federal government overreaching. The Founders' plan left the individual states entirely free to regulate speech, while strictly prohibiting the federal government from displacing the states' various speech regimes.

When the Civil War dramatically reshaped the federal-state relationship, the structural purpose …

Force Of Law: The "Mystical Foundation Of Authority", Jacques Derrida

Cardozo Law Review

No abstract provided.

Resisting Theory, Jonathan Culler

Cardozo Law Review

No abstract provided.

Tradition, Betrayal, And The Politics Of Deconstruction, J. M. Balkin

Cardozo Law Review

No abstract provided.

Equal Protection, Class Legislation, And Sex Discrimination: One Small Cheer For Mr. Herbert Spencer's Social Statics, Mark G. Yudof

Michigan Law Review

A Review of The Fourteenth Amendment: From Political Principle to Judicial Doctrine by William E. Nelson

Paradox, Asymmetry, And Switcheroos: Approaching Constitutional Law From An Unexpected Angle, 23 J. Marshall L. Rev. 333 (1990), Richard Mckenna

UIC Law Review

No abstract provided.

Book Review. Conceptual Change And The Constitution, Stephen A. Conrad

Articles by Maurer Faculty

No abstract provided.

Meeting The Enemy, Robert F. Nagel

Publications

No abstract provided.

Separation Of Powers Under The Texas Constitution, Harold H. Bruff

Publications

No abstract provided.

Advice, Consent, And Influence, Robert F. Nagel

Publications

No abstract provided.

"Were There No Appeal": The History Of Review In American Criminal Courts, David Rossman

Faculty Scholarship

The contemporary criminal justice system is guided, in large part, from the top down. A great deal of the force that drives the "terrible engine" of the criminal law is supplied by courts that consider cases on review after a defendant has been convicted.

The Constitution's Accommodation Of Social Change, Philip A. Hamburger

Michigan Law Review

Did the framers and ratifiers of the United States Constitution think that changes in American society would require changes in the text or interpretation of the Constitution? If those who created the Constitution understood or even anticipated the possibility of major social alterations, how did they expect constitutional law - text and interpretation - to accommodate such developments?

The effect of social change upon constitutional law was an issue the framers and ratifiers frequently discussed. For example, when AntiFederalists complained of the Constitution's failure to protect the jury trial in civil cases, Federalists responded that a change of circumstances might, …

Stories Of Origin And Constitutional Possibilities, Milner S. Ball

Michigan Law Review

Robert Cover once observed how "[n]o set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning. For every constitution there is an epic, for each decalogue a scripture." Stories of origin locate law, invest it with legitimacy, and so lend it stability. As Cover went on to note, however, the narratives that legitimate a legal order also retain revolutionary force, for a return to the originating acts recounted in the narratives is always possible. A polity begun in revolution remains subject to revolution.

There is an American story of origins. It is …

Philosophy, The Federalist, And The Constitution, Edward J. Sebold

Michigan Law Review

A Review of Philosophy, The Federalist, and the Constitution by Morton White

Judicial Review And American Democracy, Stanley S. Sokul

Michigan Law Review

A Review of Judicial Review and American Democracy by Albert P. Melone and George Mace

Condemnation, Credit, And Corporations In Washington: 100 Years Of Judicial Decisions—Have The Framers' Views Been Followed?, Justice James M. Dolliver

Seattle University Law Review

As part of the commemoration of Washington's centennial, this Article will examine three parts of the Washington Constitution written and adopted in 1889: article I, section 16,2 the taking clause; article VIII, section 7,3 the municipal credit clause; and article XII, sections 1-22,4 the Corporations Article. This Article will attempt to identify and explain the fundamental premises behind each of the three parts by considering the constitutional text, the specific intent of the framers where discoverable, the climate of the times in the territory and nation in 1889, and the judicial gloss from early case law. Additionally, given these considerations, …

An Historical Analysis Of Alien Land Law: Washington Territory And State 1853-1889, Mark L. Lazarus Iii

Seattle University Law Review

The purpose of this Article is to analyze the historical development of Washington's alien land law from the birth of the territory in 1853 to the drafting of the state constitution in 1889. Because alien land law necessarily involves relationships among people, this Article focuses not only on historical legal sources such as statutes, constitutional material, and judicial opinions, but also on the underlying social forces that compelled change in the law. This Article consists of three sections, the first of which is a brief discussion of the common-law roots of alien land disability in feudal England and its subsequent …

The Beginning Of The Constitutional Era: A Bicentennial Comparative Study Of The American And French Constitutions, Rett R. Ludwikowski

Michigan Journal of International Law

This article is intended only to be introductory. The author is quite aware that the period surrounding the creation of the American Constitution has been profoundly studied; thorough analysis has been provided concerning both the origin and historical development of the American Constitution, as well as the intellectual background of the "founding generation." Characteristically, these studies have focused on the "American constitutional tradition," which means that they have been limited to little more than two centuries of colonial experience. This essay follows a different vein of inquiry. The author's purpose is not to add another article to the numerous works …

James Wilson's "Assimilation Of The Common-Law Mind", Stephen A. Conrad

Articles by Maurer Faculty

No abstract provided.

A Two-Tiered Theory Of Consolidation And Separation Of Powers, David S. Yassky

Elisabeth Haub School of Law Faculty Publications

This Note explores the jurisprudential implications of the New Deal watershed and elaborates a post-New Deal theory of allocation of governmental power. Part I begins with a discussion of the Federalist theory of separation of powers. For the Federalists, two conditions ensured an effective separation. First, governmental branches must be institutionally independent; each must be free from control by the others. Second, the branches must be functionally specialized; each must wield a distinct component of governmental power, so that the assent of all three is required for government action.

Until the New Deal, the Supreme Court incorporated this theory into …

The Constitution Of 1787: A Meditation, Jonathan Van Patten

Faculty Publications

No abstract provided.

Law, Literature, And The Celebration Of Authority, Robin West

Georgetown Law Faculty Publications and Other Works

Richard Posner's new book, Law and Literature: A Misunderstood Relation, is a defense of “liberal legalism” against a group of modern critics who have only one thing in common: their use of either particular pieces of literature or literary theory to mount legal critiques. Perhaps for that reason, it is very hard to discern a unified thesis within Posner's book regarding the relationship between law and literature. In part, Posner is complaining about a pollution of literature by its use and abuse in political and legal argument; thus, the “misunderstood relation” to which the title refers. At times, Posner suggests …

Indian Consent To American Government, Richard B. Collins

Publications

No abstract provided.

The Constitutional Theory Of The Fourth Amendment, Gerard V. Bradley

Journal Articles

This Article will, in large part, present its thesis regarding fourth amendment doctrine by employing, as an illustration, a recent application of the current approach by the Seventh Circuit Court of Appeals. In United States v. Torres, the Seventh Circuit held video surveillance constitutional and further found that the judiciary had the authority to issue warrants for such a technique. Although welcomed by prosecutors and law enforcement officials, this decision highlights the absurdity of the current interpretation of the reasonableness clause. Moreover, Torres provides a vehicle through which this Article's historical interpretation can be brought into focus under the cold …

In The Beginning: The Washington Supreme Court A Century Ago, Charles H. Sheldon, Michael Stohr-Gillmore

Seattle University Law Review

This Article will discuss (1) the politics that influenced the drafting of the judicial article (article IV) in the constitutional convention; (2) the election of the first five members of the bench and the backgrounds of those inaugural judges; (3) the particular approach toward judicial review adopted by these five jurists (activism-restraint); and (4) the personal relations among these members of the supreme court. This Article will provide a personal perspective of the first five judges and their court.

Chief Justice Marshall, Justice Holmes, And The Discourse Of Constitutional Adjudication, G. Edward White

William & Mary Law Review

No abstract provided.

Reconstituting "Original Intent": A Constitutional Law Encyclopedia For The Next Century, David M. Skover

Michigan Law Review

A Review of Encyclopedia of the American Constitution by Leonard Levy, Kenneth Karst and Dennis Mahoney

Constitutional Opinions: Aspects Of The Bill Of Rights, Kenneth F. Sparks

Michigan Law Review

A Review of Constitutional Opinions: Aspects of the Bill of Rights by Leonard W. Levy