Constitutional Law Commons^™

The Secret Lives Of The Four Horsemen, Barry Cushman

Journal Articles

"Outlined against red velvet drapery on the first Monday of October, the Four Horsemen rode again. In dramatic lore they are known as Famine, Pestilence, Destruction, and Death. These are only aliases. Their real names are Van Devanter, McReynolds, Sutherland, and Butler. They formed the crest of the reactionary cyclone before which yet another progressive statute was swept over the precipice yesterday morning as a packed courtroom of spectators peered up at the bewildering panorama spread across the mahogany bench above." Or so Grantland Rice might have written, had he been a legal realist. For more than two generations scholars …

A Twentieth Amendment Parable, John Copeland Nagle

Journal Articles

The twentieth amendment receives virtually no attention in modern American constitutional law. Adopted in 1933, the primary purpose of the amendment was to eliminate lame-duck Congresses. The proponents of the amendment argued that lame-ducks were subject to nefarious influences and that allowing lame-duck legislation contradicted the voice of the people in the most recent election. But the text of the twentieth amendment simply moved the date on which the newly elected President and Congress took office from March to January, and does not expressly prohibit lame-duck legislation. The framers of the amendment could not conceive of Congress meeting during the …

Natural Law And Constitutional Law, Gerard V. Bradley

Journal Articles

A distinguishing feature of the natural law, as Catholics have always understood it, is the set of exceptionless negative moral norms, including that against intentionally killing the innocent. These norms constitute the superstructure of the Christian moral life. They also serve as a ramp to heaven for non-Christians. As the Holy Father made so powerfully clear in the encyclical Veritatis Splendor [VS], when we preach the Gospel we preach the good news of salvation through Jesus. "It is precisely on the path of the moral life that the way of salvation is open to all." [VS …

H. Jefferson Powell On The American Constitutional Tradition: A Conversation, Thomas L. Shaffer, John H. Robinson

Journal Articles

Jefferson Powell's recent book, The Moral Tradition of American Constitutionalism, was the point of departure for a series of short papers and conversations held in March of 1996 at the Notre Dame Law School.

The conversation began with a presentation by Professor Joseph Vining. His remarks were followed by a free-flowing conversation, loosely orchestrated by Professor Robinson, among the participants. After a break, the conversation was restarted with a presentation by Professor Maura Ryan, followed once again by a loosely orchestrated conversation. We turn first to Joseph Vining.

Social Engineers With Jds, Gerard V. Bradley

Journal Articles

Stephen B. Presser: Recapturing the Constitution: Race, Religion, and Abortion Reconsidered. (Washington, DC: Regnery Publishing, 1994. Pp. xiv, 398. $24.95.)

With Recapturing the Constitution Steven Presser has launched a heat-seeking missile. It is, he confesses without contrition, "politically incorrect," "the same sort of exercise Allan Bloom was attempting in Closing of the American Mind" (pp. 12, 11). Presser aims to diagnose what ails our constitutional law as Bloom did our universities and culture. Presser argues that constitutional law is very sick indeed, and that it threatens to kill our body politic.

Direct Democracy And Hastily Enacted Statutes, John Copeland Nagle

Journal Articles

Phil Frickey qualifies as the leading explorer of the borderline between statutory interpretation and constitutional law. Frickey explores ways to mediate the borderline between statutory interpretation and constitutional adjudication in the context of direct democracy. His is an enormously helpful attempt to reconcile the constitutional issues discussed by Julian Eule and the statutory interpretation issues discussed by Jane Schacter. I agree with many of Frickey's suggestions. Indeed, I will suggest some additional devices that can perform the same role. But I wonder whether Frickey has proved more than he set out to accomplish. The problems of direct democracy are special, …

Waiving Sovereign Immunity In An Age Of Clear Statement Rules, John Copeland Nagle

Journal Articles

The Supreme Court has been creating clear statement rules faster than commentators can keep track of them. At their strongest, clear statement rules treat all statutes as maintaining the status quo unless Congress clearly states its contrary intention in the text of the statute. Because clear statement rules "foreclose inquiry into extrinsic guides of interpretation," they eliminate any need—or opportunity—to glean evidence from the structure, purpose, or history of a statute to inform a determination about congressional intent. But the Court has vacillated regarding precisely what Congress must do to satisfy clear statement rules. Sometimes broad general language suffices; sometimes …

The Constitutional Law Of Abortion In Germany: Should Americans Pay Attention?, Donald P. Kommers

Journal Articles

What I plan to do here is to tell you the story of Germany's legal approach to abortion and offer some tentative conclusions about what we Americans might learn from the German experience. My story centers mainly on the constitutionality of efforts in Germany to remove legal restrictions on abortion. In the United States, the story has a different twist, for there it centers on the constitutionality of efforts to impose legal restrictions on abortion. Both stories are fascinating accounts of constitutional decisionmaking, revealing as much about the values of the two societies as about the role of judicial review …

The Federal Constitutional Court In The German Political System, Donald P. Kommers

Journal Articles

The Federal Constitutional Court is a major policy-making institution in Germany's system of government. Within the space of four decades (1951- 1991), this tribunal has evolved into the most active and powerful constitutional court in Europe. Its pivotal character in the German political system sterns from its role as a judicial lawmaking body created for the specific purpose of deciding constitutional disputes under the Basic Law.1 In deciding such disputes-that is, in interpreting the language and spirit of the Basic Law-the Constitutional Court has influenced the shape of Germany's political landscape, reaching deep into the heart of the existing state, …

Homosexuality And Public Policy, Gerard V. Bradley

Journal Articles

No need to lament the fate of Mr. Dysart, who does seem to have been a well-intentioned fellow.

The point of relating Dysart's travails is to bring to life, through one illustration, the American legal and constitutional tradition governing sexual immorality, from the founding until the 1960's.

Dysart's lawyers made no constitutional claim. The Supreme Court raised none of its own. The Justices did not even question their prior test for "obscenity." They simply declared that Dysart remained on its safe side, that as a matter of law the notices were not obscene.

I agree with the Supreme Court's conclusion. …

Severability, John Copeland Nagle

Journal Articles

When a court holds a provision of a statute unconstitutional, a question remains regarding the validity of the remainder of the statute. The court may find that the unconstitutional provision may be severed from the statute and leave the remainder of the statute in effect. Alternatively, the court may hold that the unconstitutional provision cannot be severed and invalidate the entire statute.

This article argues that the jurisprudence surrounding the issue of severability is confusing and inconsistent. After explaining the concept of severability and its ramifications for statutes, I trace the development of the current judicial test for determining when …

Book Review, G. Marcus Cole

Journal Articles

G. Marcus Cole provides a thorough review of Towards a Post-Apartheid Future: Political & Economic Relations in Southern Africa by Gavin Maasdorp & Alan Whiteside (New York: St. Martin's Press, 1992).

The Bill Of Rights And Originalism, Gerard V. Bradley

Journal Articles

Professor Bradley begins the final installment of the University of Illinois Law Review's year-long tribute to the Bill of Rights by proposing that the first ten Amendments, like the Constitution itself, be interpreted according to the original understanding of their ratifiers. Professor Bradley, though, narrows the scope of the exegetical inquiry to what he proposes is the only sound originalism - plain meaning, historically recovered. Professor Bradley argues that interpreting the Bill of Rights according to the text's plain meaning among persons politically active at the time of drafting avoids both the inflexibility and philosophical deficiencies of "snapshot" conservative originalism …

Beyond Murray's Articles Of Peace And Faith, Gerry V. Bradley

Book Chapters

From the Introduction

I propose to examine our constitutional law of church and state in light of Murray's compact typology. Two preliminary expositions are demanded by the task: What is the law? and What is Murray's typology? The provisional conclusion: the law of the clauses constitutes an Article of Faith.

Constitutional Theory Beyond Left And Right, Gerard V. Bradley

Journal Articles

Hadley Arkes: Beyond the Constitution. (Princeton: Princeton University Press, 1990. Pp. 288. $24.95.)

Hadley Arkes's latest book is Beyond the Constitution and it is virtually a tour de force. Author of The Philosopher in The City and First Things, in the new work Arkes persuasively criticizes both liberal and conservative constitutionalism as well as their common legal theoretical base, displaying all the while the philosophical astuteness and elegant prose his prior work has accustomed readers to expect. Anyone remotely interested in constitutional law should read this book.

Beguiled: Free Exercise Exemptions And The Siren Song Of Liberalism, Gerard V. Bradley

Journal Articles

From all the talk about our religious pluralism—how extensive, indelible, inarbitrable it is—one would expect that establishing one definition of religious liberty would be the mother of all civic disturbances. Wrong. We have a common definition of religious liberty. I can demonstrate our agreement with one exhibit: the immensely broad based denunciation of the 1990 Supreme Court decision, Employment Division v. Smith. Two counsellors at a drug rehabilitation center (Alfred Smith and Galen Black) appealed Oregon’s denial of unemployment benefits. Oregon cited the “misconduct” that led to their discharges. Their “misconduct” consisted of using the hallucinogenic drug peyote. Peyote …

Process Of Constitutional Decision Making, Kenneth F. Ripple

Journal Articles

Over the past decade, our profession has engaged in an intense debate over the proper role of judges in the interpretation of our Constitution. This is not, of course, a new controversy. It has been with us ever since Chief Justice Marshall's decision in Marbury v. Madison.' However, during this last decade, the debate has taken on new dimensions. There is a new range and depth to the inquiry. What began as a discussion largely among members of the academic bar and some members of the judiciary has become a national political issue. Yet the basic question remains: In a …

German Constitutionalism: A Prolegomenon, Donald P. Kommers

Journal Articles

This essay sets out to describe the main features of German constitutionalism, and it concludes by drawing some comparisons with the United States. The term "constitutionalism," however, suffers from the vice of vagueness. As Gerhard Casper has written, "it is neither clearly prescriptive nor clearly descriptive; its contours are difficult to discern; its historical roots are diverse and uncertain." Any attempt to explore the contours and roots of German constitutionalism in the global sense suggested by Casper's comment would be a major undertaking extending far beyond the limits of this study. As used here the term shall be limited to …

The Tempting Of America, Gerard V. Bradley

Journal Articles

THE TEMPTING OF AMERICA by Robert Bork. New York: The Free Press/Macmillan, 1990. Hdbd: pp. xiv-432.

In the concluding third of The Tempting of America Robert Bork recounts his unsuccessful fight to gain Senate confirmation to the Supreme Court.

Bork relates his war story to the rest of the book. In the first two-thirds of Tempting, he takes us on a grand tour of the Constitution's career, starting in the courts with Chief Justice John Marshall, on through the Civil War, Reconstruction, and New Deal eras. He finishes with a detailed examination of the Warren, Burger and Rehnquist Courts. …

Tribe's "Jurisprudence Of The Religion Clauses", Gerard V. Bradley

Journal Articles

Laurence Tribe has usefully been described as a constitutional apologist for liberal political causes. His conspicuous opposition to the nomination of Judge Robert Bork to the Supreme Court and his imaginative defenses of Roe v. Wade have fueled that image. Tribe's "jurisprudence of the religion clauses" both confounds and complicates the picture. He sees no constitutional difficulty with public education vouchers, and defends the Catholic Church against "pro-choicers" who would strip its tax-exempt status because of the Bishops' "pro-life" activities. Tribe thinks that a public school moment-of-silence can be consistent with the Constitution and carves out a considerable zone of …

Curran Versus Catholic University Of America, Gerard V. Bradley

Journal Articles

From the Introduction

America's most celebrated recent episode of ecclesiastical « dissent » reached its legal conclusion in Curran v. Catholic University of America. Fr. Curran says he will not pursue appellate review. Consequently, Judge Weisberg's ruling in favor of CUA, plus Fr. Curran's refusal to teach anything but Catholic theology, mean that the « dissenter » will pursue his academic career elsewhere. But, while conclusive, the ruling is hardly the « landmark decision » one Catholic editor termed it.

How could a theological and ecclesiological controversy of such magnitude be emptied of its sacred content? How could Judge …

On Checking The Artifacts Of Canaan: A Comment On Levinson's "Confrontation", Thomas L. Shaffer

Journal Articles

My friend Levinson has been prominent of late among constitutional scholars who use religious metaphors to describe the curious American political experiment. In the image he uses, we lawyers are priests in the practice of a constitutional faith; the federal constitution is our scripture, our creed, and our oath. Levinson, though, is not a television evangelist or street preacher. He is, instead, a theologian. He is unique in the honesty and thoroughness he brings to the discussion-as evidenced here by his looking at the possibility that we priests of the American constitutional faith have another faith to take into account …

West German Constitutionalism And Church-State Relations, Donald P. Kommers

Journal Articles

The complex structure of church-state relations in West Germany arises out of numerous provisions of the Basic Law that combine features of both separation and accommodation. The Basic Law's separationist features are expressed in various guarantees of religious liberty and in the ban on the establishment of a state church. Its accommodationist features appear in constitutional provisions on religious education as well as in articles, taken over from the Weimar Constitution, that confer upon the established churches a special juridical status enjoyed by no other nongovernmental entity. The arguably diverse goals of the religion clauses are difficult to reconcile, creating …

Probing Bork's Judicial Philosophy, Gerard V. Bradley

Journal Articles

Robert Bork: The Tempting of America. (New York: The Free Press, 1989. Pp. xiv, 432. $22.50.)

In the last third of The Tempting of America Robert Bork relives the painful ordeal of his lost nomination to the Supreme Court. Any sentient American then alive already knows that story: the campaign against him was full of half-truths, distortions, and just plain lies. Bork adds some confirming anecdotes, and I congratulate him for telling the tale candidly but without rancor. The loss is ours. In my opinion, Bork would have been among the two or three greatest justices of the last …

The Union At Risk: Jacksonian Democracy, States Rights And The Nullification Crisis, Gerard V. Bradley

Journal Articles

Richard E. Ellis, The Union at Risk. Jacksonian Democracy, States Rights and the Nullification Crisis, Oxford: Oxford University Press, 1987. Pp. xi, 279. $32.50 (ISBN: 0-19-503785-5).

From the Review

In a widely reported address at Tulane University in October 1986, Attorney General Edwin Meese chastised the Supreme Court for its habitual conflation of constitutional law and the Constitution.

Meese is no intellectual, and his remarks were not intended as academic musings; thus, the speech may have been appropriately judged from a political perspective, condemned by liberals and applauded by conservatives for roughly the same reasons. Unfortunately obscured by the …

Does Autonomy Require Informed And Specific Refusal Of Life-Sustaining Medical Treatment?, Gerard V. Bradley

Journal Articles

Any social order that prizes individual autonomy is committed to collectively informing its autonomous members. A good working definition of "autonomy" is "self-determining free choice." What distinguishes "choice" from mere appetite or desire is deliberation upon known, available options and their probable consequences, and a practical equilibrium of external pressures for and against those options.

Even the most autonomy-driven society will conclude that some of its members - e.g., infants and persons with mental disabilities - are unable to choose for themselves. Autonomy for persons who are incompetent is inapposite because they are incapable of exercising free choice. Thus constitutional …

Possible Modifications Of Roe Vs. Wade, Charles E. Rice

Journal Articles

No abstract provided.

Church Autonomy In The Constitutional Order - The End Of Church And State?, Gerard V. Bradley

Journal Articles

"Separation of church and state" is right up there with Mom, apple pie, and baseball in American iconography. If everyone agrees on separation of church and state, why does the relationship between religion and public life so vex, excite, and confound us? Part of the reason is that church-state separation, although it is the historical achievement of societies decisively shaped by a Christianity that was itself decisively shaped by Judaism, is a commodious concept.

But "separation of church and state" is not contentless, and our conclusive agreement on it, I submit, provides a valuable common frame of reference in an …

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 …

Exorcizing Everson, Gerard V. Bradley

Journal Articles

Daniel Dreisbach: Real Threat and Mere Shadow: Religious Liberty and the First Amendment. Crossway Books. 351 pp. $15.00 (paper).

No aspect of constitutional law sports a bigger profile these days than that concerning religion, or "Church and state." Academics debate it prodigiously, lawyers litigate it furiously, and judges issue opinions on the subject with clockwork regularity. But this commotion is hardly esoteric. Pat Robertson's candidacy stirred everyone's emotions precisely because each of us has a strong sense of just how religious politics should be. George Bush clumsily attested to this popular sensitivity. What sustained bomber pilot Bush …