Constitutional Law Commons^™

The Constitutional Right To Die: Ethical Considerations, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

In this commentary, the author first looks at some ethical reasoning supporting physician-assisted dying. Second, he examines some of the lines that have been drawn between withdrawing and withholding life-sustaining treatment on the one hand, and physician-assisted dying on the other. Finally, he relates both of these matters to constitutional reasoning, beginning with Cruzan and ending with the cases before the Supreme Court at the time of the article's publication.

Under Fire: The New Consensus On The Second Amendment, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Until the early 1980s the Second Amendment had received little attention or interest from legal scholars. In 1981 Northwestern University law professor Daniel D. Polsby ridiculed the individual rights view of the Amendment as "a lot of horsedung."

Research conducted through the 1980s has led legal scholars and historians to conclude, sometimes reluctantly, but with virtual unanimity, that there is no tenable textual or historical argument against a broad individual right view of the Second Amendment.

According to the broad individual right view, the right of the people to keep and bear arms is to be treated the same as …

Toward A "Due Foundation" For The Separation Of Powers: The Federalist Papers As Political Narrative, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

During the past quarter century, lawyers have become strangely comfortable with descriptions of our government's structure that would, to an untutored ear, speak contradiction. We are quite satisfied to say that governmental powers are separate and shared, departments distinct and overlapping, functions autonomous and interdependent. We have settled into these contradictions as we would a roomy chair: talking this way is no longer controversial but taken for granted, uttered with a knowing wink, perceived as the starting point of sophisticated analysis. A not "entirely separate," but "entirely free," set of departments is the only way we can think about the …

The Relevance Of The Framers’ Intent, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Ever since the revival of interest in originalism that occurred in the 1980s, critics have 'charged that for a variety of reasons it is impractical, if not impossible, to determine the Framers' intentions. In addition, they argue that we today should not be bound by the intentions of a few men who lived and died over two-hundred years ago. In sum, adherence to original intent is rejected as being impractical, unjust, or both.

In this article, the author argues that we cannot assess either the practicality or the justice of discerning original intent without first asking why it is we …

Getting Normative: The Role Of Natural Rights In Constitutional Adjudication, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

No abstract provided.

Constitutional Fictions And Meritocratic Success Stories, Robin West

Georgetown Law Faculty Publications and Other Works

L.H. LaRue demonstrates in his book, Constitutional Law as Fiction, that, at least in the realm of constitutional law, there is no simple correspondence between fiction and falsehood, or fact and truth. Partial or fictive accounts of our constitutional history, even when they are riddled with inaccuracies, may state deep truths about our world, and accurate recitations of historical events may be either intentionally or unintentionally misleading in the extreme. According to LaRue, the Supreme Court engages in a form of storytelling or myth-making that goes beyond the inevitably partial narratives of fact and precedent. The Supreme Court also tells …

Understanding Constitutional War Powers Today: Why Methodology Matters, Jane E. Stromseth

Georgetown Law Faculty Publications and Other Works

With the Cold War over, Americans have grown more introspective about the role of the United States in global affairs. It could hardly be otherwise. America's rise to military preeminence, its overseas commitments and priorities, and its basic sense of international purpose all were forged by circumstances of the past fifty years that have changed dramatically. The Soviet threat is gone; once shaky allies in Europe and Asia are now comparatively stable and prosperous; the specter of cataclysmic nuclear war has receded while regional conflicts, ethnic strife, and humanitarian emergencies have moved to center stage. Although the world is no …

Takings Law And The Regulatory State: A Response To R.S. Radford, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

In the Winter 1994 issue of the Fordham Urban Law Journal, R.S. Radford provided an illuminating review of Dennis Coyle's book Property Rights and the Constitution. Radford observes that, in addition to studying post-New Deal land use cases, Coyle "provides an ideological framework that illuminates several key strands in the constitutional jurisprudence of property law ... [and] sets forth his own theories of the vital role of private property in creating and maintaining the American constitutional system." Radford's review is a generally enthusiastic one. He sees Coyle's book as providing a much-needed corrective to "the existing pro-regulatory bias …

The Original Understanding Of The Takings Clause And The Political Process, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

The original understanding of the Takings Clause of the Fifth Amendment was clear on two points. The clause required compensation when the federal government physically took private property, but not when government regulations limited the ways in which property could be used. In 1922, however, the Supreme Court's decision in Pennsylvania Coal v. Mahon established a new takings regime. In an opinion by Justice Holmes, the Court held that compensation must be provided when government regulation "goes too far" in diminishing the value of private property. Since that decision, the Supreme Court has been unable to define clearly what kind …

The Four Doctrines Of Self-Executing Treaties, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

A distinction has become entrenched in United States law between treaties that are "self-executing" and those that are not. The precise nature of this distinction--indeed, its very existence--is a matter of some controversy and much confusion. More than one lower federal court has pronounced the distinction to be the "most confounding" in the United States law of treaties. A tremendous amount of scholarship has sought to clarify this distinction, but the honest observer cannot but agree with John Jackson's observation that " [t]he substantial volume of scholarly writing on this issue has not yet resolved the confusion" surrounding it. The …

Guns, Militias And Oklahoma City, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

While this Symposium on "The Second Amendment and the Right to Keep and Bear Arms" was in final stages of production a massive explosion ripped through a federal office building in Oklahoma City, Oklahoma, killing scores of men, women, and children. As this Foreword is being written the final count of casualties is still unknown. Also unknown at this time are the identities of all who were involved in planning and executing this crime. One man is in custody, but to this point he has chosen to remain silent. Another unknown suspect is still at large.'

Has The U.S. Supreme Court Finally Drained The Swamp Of Takings Jurisprudence? The Impact Of Lucas V. South Carolina Coastal Council On Wetlands And Coastal Barrier Beaches, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

This article argues that the Court's reliance on the law of property neither creates an internal inconsistency in takings law nor necessarily leads to further destruction of natural resources. Background principles of property law, such as custom and public trust, have long provided a basis for government protection of the public's interest in certain types of land, like the barrier beach David Lucas sought to develop.

Thus, the Lucas case need not be perceived as casting a constitutional cloud over laws protecting important ecosystems like wetlands and barrier beaches. The decision may not place these resources in greater danger from …

Presidential Power: Should Bill Clinton Be Immune From Lawsuits On Allegations Of Past Acts?, Susan Low Bloch

Georgetown Law Faculty Publications and Other Works

When former Arkansas state employee Paula Jones filed her complaint against Bill Clinton she joined a small group of women who have publicly accused men in high-profile positions of sexual harassment.

A classic "he said, she said" story? We may never know, if the president is able to argue successfully that his office shields him from liability for actions occurring prior to assuming it. On June 27, his lawyer, Robert Bennett, asked a federal court to delay action, and said he would be filing a separate motion in August on the issue.

The defense is based on the 1982 case …

The Power Of Presumptions, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Once you start to notice it, you see it everywhere. Burden-shifting is pervasive.The author began to notice the power of presumptions when examining how to protect the rights "retained by the people" referred to in the Ninth Amendment without having to enumerate each one. He proposed the creation of a "presumption of liberty" that would extend the same protective presumption now accorded freedom of speech to all other rightful exercises of liberty. This presumption would shift the burden to the government to justify as necessary and proper any restriction on the rightful exercise of any liberty.

The Case Of The Prisoners And The Origins Of Judicial Review, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

For over one hundred years, scholars have closely studied the handful of cases in which state courts, in the years before the Federal Constitutional Convention, confronted the question whether they had the power to declare laws invalid. Interest in these early cases began in the late nineteenth century as one aspect of the larger debate about the legitimacy of judicial review, a debate triggered by the increasing frequency with which the Supreme Court and state courts were invalidating economic and social legislation. The lawyers, political scientists, and historians who initially unearthed the case law from the 1770s and 1780s used …

The Constitution Of Reasons, Robin West

Georgetown Law Faculty Publications and Other Works

Cass Sunstein's book, The Partial Constitution, brings together a number of his constitutional law essays from the last ten years. During that time, Sunstein has argued, powerfully, for the unconstitutionality of regulatory constraints on access to abortion; for the constitutionality of and the need for regulation of violent pornography; for the constitutionality of limits on both campaign spending and congressional control over public broadcasting; for the deep consistency, conventional wisdom to the contrary notwithstanding, of the Court's repudiation of Lochner in 1937 with its 1974 decision in Roe v. Wade; for the view that we should accord far less deference …

The Intersection Of Natural Rights And Positive Constitutional Law, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In this brief essay, the author describes what he sees to be the unavoidable connection between natural law--or, more accurately, natural rights--and the positive law that is the subject of constitutional adjudication. This connection would exist whether or not there is a conceptual distinction between natural and positive law of the sort that Professor Fred Schauer maintains in his article, Constitutional Positivism. Because of this connection, judges in a world in which legal positivism is "true" should act, on occasion, as though the natural rights approach is' correct. And if this is true then, the author maintains, the natural …

The “Self-Executing” Character Of The Refugee Protocol’S Nonrefoulement Obligation, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

When the United States ratified the 1967 U.N. Protocol Relating to the Status of Refugees (Protocol), it undertook not to "expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened" on specified grounds. On May 24, 1992, President Bush issued an executive order, known as the Kennebunkport Order, authorizing the United States Coast Guard to interdict vessels on the high seas suspected of containing Haitians destined for U.S. shores and to return such persons to Haiti without regard to whether their lives or freedom would …

Natural Law Ambiguities, Robin West

Georgetown Law Faculty Publications and Other Works

I share with Fred Schauer the relatively unpopular belief that the positivist insistence that we keep separate the legal "is" from the legal "ought" is a logical prerequisite to meaningful legal criticism, and therefore, in the constitutional context, is a logical prerequisite to meaningful criticism of the Constitution. As Schauer argues, despite the modern inclination to associate positivism with conservatism, the positivist "separation thesis," properly understood, facilitates legal criticism and legal reform, not reactionary acquiescence. If we want to improve law, we must resist the urge to see it through the proverbial rose-colored glasses; we must be clear that a …

Drawing A Line Between Killing And Letting Die: The Law, And Law Reform, On Medically Assisted Dying, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Traditional medical ethics and law draw a sharp distinction between allowing a patient to die and helping her die. Withholding or withdrawing life sustaining treatment, such as by abating technological nutrition, hydration or respiration, will cause death as surely as a lethal injection. The former, however, is a constitutional right for a competent or once-competent patient, while the latter poses a risk of serious criminal or civil liability for the physician, even if the patient requests it.

Prospective Overruling And The Revival Of ‘Unconstitutional' Statutes, William Michael Treanor, Gene B. Sperling

Georgetown Law Faculty Publications and Other Works

The Supreme Court's decision in Planned Parenthood v. Casey reshaped the law of abortion in this country. The Court overturned two of its previous decisions invalidating state restrictions on abortions, Thornburgh v. American College of Obstetricians and Gynecologists and Akron v. Akron Center for Reproductive Health, and it abandoned the trimester analytic framework established in Roe v. Wade. At the time Casey was handed down, twenty states had restrictive abortion statutes on the books that were in conflict with Akron or Thornburgh and which were unenforced. In six of these states, courts had held the statutes unconstitutional. Almost …

The Aspirational Constitution, Robin West

Georgetown Law Faculty Publications and Other Works

Firmly embedded in every theory of judicial decisionmaking lies an important set of assumptions about the way government is supposed to work. Sometimes these theories about government are made explicit. More often they are not. Moreover, deeply embedded in every theory of government is a theory of human nature. Although these assumptions about human nature generally remain latent within the larger theory, because they provide the underpinnings for our ideas about the way government is supposed to work, they drive our notions about judicial decisionmaking. For example, the theory of government reflected in the United States Constitution reveals what one …

The Americans With Disabilities Act And The Corpus Of Anti-Discrimination Law: A Force For Change In The Future Of Public Health Regulation, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

In this paper the author reviews the constitutional history of the courts' attempts to check the powers of the public health department. He demonstrates how ineffective and inconsistent constitutional review has been, and suggests that adequate review criteria have not emerged. The author shows that, whether the courts are applying First, Fourth, or Fourteenth Amendment standards, ultimately they are highly deferential to public health officials. Then he carefully examines the key concepts in the Americans with Disabilities Act (ADA) as they apply to communicable disease. He reveals Congress' clear intention to include communicable disease, even asymptomatic infection, as a disability. …

The Sound Of Silence: Default Rules And Contractual Consent, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In this article, the author challenges the received wisdom of "gap-filling in the absence of consent" by showing how the concept of default rules bolsters the theoretical importance of consent. He accomplishes this by expanding and refining his analysis of a "consent theory of contract." The author proposes that the concept of default rules reveals consent to be operating at two distinct levels of contract theory. First, the presence of consent to be legally bound is essential to justify the legal enforcement of any default rules. Second, nested within this overall consent to be legally bound, consent also operates to …

Conflicting Visions: A Critique Of Ian Macneil’S Relational Theory Of Contract, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Perhaps the leading contemporary critic of placing consent at the center of contract law has been Ian Macneil. In his book The New Social Contract as well as in a series of complex and richly textured articles spanning nearly two decades, Macneil has eloquently presented and defended his now well-known relational theory of contract. It is a tribute to the important core of previously neglected truth in Macneil's theory that, for all its complexity, the theory can be summarized succinctly.

Macneil presents nothing less than a "holistic" "social theory" of human exchange--with particular emphasis on the human activity of "projecting …

Treaty-Based Rights And Remedies Of Individuals, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

Treaties are frequently described as contracts between nations. As instruments of international law, they establish obligations with which international law requires the parties to comply. In the United States, treaties also have the status of law in the domestic legal system. The Supremacy Clause declares treaties to be the "supreme Law of the Land" and instructs the courts to give them effect. The status of treaties as law in two distinct legal orders has given rise to unusual conceptual problems. In recent years, it has produced confusion among the courts regarding the enforceability of treaties in the courts by individuals. …

The "Gag Rule" Revisited: Physicians As Abortion Gatekeepers, Maxwell Gregg Bloche

Georgetown Law Faculty Publications and Other Works

To the surprise of many and the dismay of some, the U.S. Supreme Court took it upon itself last term to proclaim a national compromise on the question of abortion. The Court's announced truce, an elaboration on Justice O'Connor's "undue burden" idea, is pragmatic in design but unlikely to prove stable in practice. The three justices who spoke for the Court disparaged Roe with reluctant praise, then upheld its outer shell on the ground that social expectations and the need to sustain the appearance of the rule of law made it impolitic to do otherwise. This awkward doctrinal invention seems …

Rational Bargaining Theory And Contract: Default Rules, Hypothetical Consent, The Duty To Disclose, And Fraud, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

The author begins by responding to Coleman's rational choice approach to choosing default rules. In part I, he applies the expanded analysis of contractual consent and default rules that he had recently presented elsewhere to explain how rational bargaining, hypothetical consent, and actual consent figure in the determination of contractual default rules. Whereas Coleman advocates the centrality of rational bargaining analysis to this determination, the author explains why rational bargaining theory's role must be subsidiary to that of consent.

The author then turns his attention to Coleman's appraisal of contracting parties' duty to disclose information concerning the resources that are …

Some Problems With Contract As Promise, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

The promise theory views the origin of contract in the making of a promise. This means that it views the creation of contracts as arising, in an important part, from the voluntary acts of promisors rather than from third parties like the State. In this regard, the theory facilitates the classical liberal value of freedom to contract. The promise theory also supports the notion that contracts should be interpreted according to the terms of the promise rather than by imposing terms on the parties. In this regard, the theory facilitates the classical liberal value of freedom from contract. These strengths …

Constitutional Scepticism, Robin West

Georgetown Law Faculty Publications and Other Works

Interpretive constitutional debate over the last few decades has centered on two apparently linked questions: whether the Constitution can be given a determinate meaning, and whether the institution of judicial review can be justified within the basic assumptions of liberalism. Two groups of scholars have generated answers to these questions. The "constitutional faithful" argue that meaning can indeed be determinately affixed to constitutional clauses, by reference to the plain meaning of the document, the original intent of the drafters, evolving political and moral norms of the community, or the best political or moral philosophical theory available and that, because of …