Constitutional Law Commons^™

Minority Report: John Marshall And The Defense Of The Alien And Sedition Acts, Kurt T. Lash

Law Faculty Publications

In 1799, the Federalist minority of the Virginia House of Delegates produced an extended defense of the Alien and Sedition Acts. This Minority Report responded to Madison's famous Virginia Resolutions and efforts by Virginia Republicans to tar the Adams Administration with having exceeded its powers under the federal Constitution. Originally attributed to John Marshall by biographer Albert Beveridge, recent biographies of Marshall have omitted the episode or rejected Beveridge's claim. The current editors of the Papers of John Marshall omitted the Minority Report from their multi-volume collection of Marshall's work and have successfully lobbied editors of similar collections to remove …

The Process Due Indefinitely Detained Citizens, Carl W. Tobias

Law Faculty Publications

A very controversial feature of the "war on terror" is the scope of the power which Congress has granted President George W. Bush to designate suspected terrorists enemy combatants and indefinitely detain them. The United States Court of Appeals for the Fourth Circuit has most fully, if not clearly, resolved this question.

The United States incarcerated two citizens with little process for more than a year in the Charleston and Norfolk naval brigs. The first litigated three habeas corpus petitions before the Fourth Circuit and a fourth to the Supreme Court before the government released him. The second convinced a …

Originalism, Popular Sovereignty And Reverse Stare Decisis, Kurt T. Lash

Law Faculty Publications

Although all interpretive methods must grapple with the issue of stare decisis, the issue is particularly acute for originalists due to the potentially radical discontinuity between original meaning and modern doctrine. An unmediated enforcement of original understanding of the Constitution would likely reverse countless precedents and impose unacceptably high costs in terms of the rule of law. On the other hand, upholding a precedent despite its variance with the original understanding undermines the very legitimacy of legal review according to most theories of originalism. Focusing on the most common normative basis for originalism, popular sovereignty, the article identifies those cases …

First Principles For Virginia's Fifth Century, Hon. Robert F. Mcdonnell

University of Richmond Law Review

No abstract provided.

Daimlerchrysler V. Cuno: An Escape From The Dormant Commerce Clause Quagmire?, S. Mohsin Reza

University of Richmond Law Review

No abstract provided.

Where Do We Draw The Line? Partisan Gerrymandering And The State Of Texas, Whitney M. Eaton

University of Richmond Law Review

No abstract provided.

Economic Regulation In The United States: The Constitutional Framework, Mark C. Christie

University of Richmond Law Review

The United States of America is well-known (and occasionally well-liked or loathed) as the world's largest free-market capitalist nation. Indeed, many assume that since the United States for more than two centuries has had an economic system based on liberal principles, Adam Smith's "invisible hand" of capitalism must have been embedded in the United States Constitution from the beginning of the American republic. Yet government at all levels in the United States has historically exercised significant regulation of economic and commercial activity-regulation inconsistent with laissez-faire capitalism. The purpose of this article is to consider several questions: (1) what are the …

Barriers In The Land Of The Free, Gary L. Mcdowell

Jepson School of Leadership Studies articles, book chapters and other publications

The best way to get judges to write books is apparently to lure them to the lecterns of prominent lecture series, then turn their remarks into something more permanent. Perhaps the most successful of these schemes was Judge Benjamin Cardozo's 1921 Storrs lectures at the Yale Law School that appeared in the same year as The Nature of the Judicial Process . While a judge on the New York Court of Appeals, before he was elevated to the US Supreme Court in 1932, Cardozo saw two further series of lectures appear in print as The Growth of the Law (1924) …

Fighting Terrorism And Preserving Civil Liberties, James B. Comey

University of Richmond Law Review

No abstract provided.

Playing Games With The First Amendment: Are Video Games Speech And May Minors' Access To Graphically Violent Video Games Be Restricted?, Gregory K. Laughlin

University of Richmond Law Review

No abstract provided.

Tucker’S Rule: St. George Tucker And The Limited Construction Of Federal Power, Kurt T. Lash

Law Faculty Publications

When Joseph Story published his Commentaries on the Constitution in 1833, he dedicated the work "To the Honorable John Marshall," whose "expositions of constitutional law enjoy a rare and extraordinary authority. They constitute a monument of fame far beyond the ordinary memorials of political and military glory." Throughout the Commentaries, Story generously quoted Chief Justice Marshall's great nationalist opinions in McCulloch v. Maryland, Gibbons v. Ogden, and Cohens v. Virginia and used them to construct a thoroughly nationalist reading of the federal Constitution. Along the way, Story seemingly dismantled prior states' rights interpretations of federal power, particularly St. George Tucker's …

Small V. United States: Defining "Any" As A Subset Of "Any", Lee G. Lester

University of Richmond Law Review

"It shall be unlawful for any person.., who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year ... to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition ...." Although this statute, 18 U.S.C. § 922(g)(1), was enacted to keep firearms out of the hands of persons not entitled to possess them because of their criminal backgrounds, the scope of this statute has been controversial. Specifically, the federal circuits have disagreed as to whether the phrase "any court" applies to foreign courts …

Questioning Quirin, Carl W. Tobias

Law Faculty Publications

Louis Fisher's new work, Nazi Saboteurs on Trial: A Military Tribunal and American Law3 (Nazi Saboteurs), and his valuable contribution to illuminating Ex parte Quirin merit scrutiny. In this Review, I first descriptively assess Nazi Saboteurs. The Review then treats the monograph's numerous beneficial features and ascertains that it enhances understanding of the important decision in Quirin. I conclude with several recommendations for future analysis of Quirin's impact.

James Madison’S Celebrated Report Of 1800: The Transformation Of The Tenth Amendment, Kurt T. Lash

Law Faculty Publications

It has become commonplace to describe the Rehnquist Court as having staged a "Federalism Revolution." Although the current status of the Revolution is in dispute, historical treatment of the Supreme Court's jurisprudence under Chief Justice Rehnquist no doubt will emphasize a resurgence of federalism and limited construction of federal power. Cases like Gregory v. Ashcroft, New York v. United States, United States v. Lopez, Printz v. United States, Alden v. Maine, and United States v. Morrison all share a common rule of interpretation: Narrow construction of federal power to interfere with matters believed best left under state control. The textual …

Apprendi's Limits, R. Craig Green

University of Richmond Law Review

No abstract provided.

The Judicial Nominations Wars, William P. Marshall

University of Richmond Law Review

No abstract provided.

Bork Was The Beginning: Constitutional Moralism And The Politics Of Federal Judicial Selection, Gary L. Mcdowell

University of Richmond Law Review

No abstract provided.

Judicial Confirmation Wars: Ideology And The Battle For The Federal Courts, Sheldon Goldman

University of Richmond Law Review

No abstract provided.

Judicial Selection As . . . Talk Radio, Michael J. Gerhardt

University of Richmond Law Review

No abstract provided.

Observations On The Status And Impact Of The Judicial Confirmation Process, Edith H. Jones

University of Richmond Law Review

No abstract provided.

Hiibel V. Sixth Judicial District Court:Can Police Arrest Suspects For Withholding Their Names?, John Famum

Richmond Public Interest Law Review

Suppose that someone calls the police and alerts them to a crime that has been committed. Using the information provided, the police stop you because you fit the description of the person reported. If the police ask your name, must you give it? The United States Supreme Court believes you must if the state you are in has passed a law requiring you to give your name. In a factual situation very similar to this, the United States Supreme Court held in Hiibel v. Sixth Judicial District Court that the Nevada law requiring a person to provide his name in …

The Lost Jurisprudence Of The Ninth Amendment, Kurt T. Lash

Law Faculty Publications

It is widely assumed that the Ninth Amendment languished in constitutional obscurity until it was resurrected in Griswold v. Connecticut by Justice Arthur Goldberg. In fact, the Ninth Amendment played a significant role in some of the most important constitutional disputes in our nation's history, including the scope of exclusive versus concurrent federal power, the authority of the federal government to regulate slavery, the constitutionality of the New Deal, and the legitimacy and scope of incorporation of the Bill of Rights into the Fourteenth Amendment. The second of two articles addressing the Lost History of the Ninth Amendment, The Lost …

Groh V. Ramirez: Strengthening The Fourth Amendment Particularity Requirement, Weakening Qualified Immunity, C. Brandon Rash

University of Richmond Law Review

No abstract provided.

Hiibel V. Sixth Judicial District Court:Can Police Arrest Suspects For Withholding Their Names?, John Famum

Richmond Journal of Law and the Public Interest

Suppose that someone calls the police and alerts them to a crime that has been committed. Using the information provided, the police stop you because you fit the description of the person reported. If the police ask your name, must you give it? The United States Supreme Court believes you must if the state you are in has passed a law requiring you to give your name. In a factual situation very similar to this, the United States Supreme Court held in Hiibel v. Sixth Judicial District Court that the Nevada law requiring a person to provide his name in …

Crawford V. Washington: Encouraging And Ensuring The Confrontation Of Witness, Robert P. Mosteller

University of Richmond Law Review

No abstract provided.

Bork Was The Beginning: Constitutional Moralism And The Politics Of Judicial Selection, Gary L. Mcdowell

Law Faculty Publications

On October 23, 1987, the United States Senate committed what many considered then-and what many still consider today-to be an unforgivable political and constitutional sin. Wielding its power to advise and consent on nominations to the Supreme Court of the United States, the upper house voted 58-42 not to confirm Judge Robert H. Bork. The vote, which was the largest margin of defeat in history for a nominee to the Supreme Court, concluded one of the most tumultuous political battles in the history of the republic, a battle that would transform the process of judicial selection for years to come.

The Perverse Paradox Of Privacy, Gary L. Mcdowell

Jepson School of Leadership Studies articles, book chapters and other publications

The most recent effort of the Supreme Court of the United States to define the judicially created constitutional right to privacy has demonstrated once again why that contrived right poses such a pronounced threat to constitutional self-government. In writing for the majority in Lawrence v. Texas (2003) to overrule a case of only seventeen years' standing that allowed the states to prohibit homosexual sodomy, Justice Anthony Kennedy insisted that the idea of liberty in the Constitution's due process clauses is not limited to protecting individuals form "unwarranted governmental intrusions into a dwelling or other private places" but has "transcendent dimensions" …

Brown And The Desegregation Of Virginia Law Schools, Carl W. Tobias

University of Richmond Law Review

No abstract provided.

Virginia's Next Challenge: Economic And Educational Opportunity, Mark R. Warner

University of Richmond Law Review

No abstract provided.

The Promise Of Equality: Reflections On The Post-Brown Era In Virginia, Robert R. Mehrige Jr.

University of Richmond Law Review

No abstract provided.