Constitutional Law Commons^™

Foreword: A Hard Case And An Intractable Problem, Matthew Steffey

Journal Articles

No abstract provided.

The Pluralist Game: Francis Canavan On Law, Public Morality, And Pluralism In Contemporary America, Gerard V. Bradley

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You may have heard Hadley Arkes's charge — always made in good-natured friendship — that Father Richard John Neuhaus owes him royalties for the title of Neuhaus's wonderful monthly, First Things. After all, Arkes's book of the same name came out first. Father Neuhaus read it and liked it, and, voila, shortly thereafter the magazine appeared. Arkes has a good circumstantial case.

You probably know that one of Father Neuhaus's books is called The Catholic Moment. His thesis is that late twentieth century Americans are living through a "crisis of unbelief." The Roman Catholic Church, Neuhaus argues, can and should …

The Secret Lives Of The Four Horsemen, Barry Cushman

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"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

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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 …

The Slavery Of Emancipation, Guyora Binder

Journal Articles

The Thirteenth Amendment abolishes the institution of slavery rather than freeing individual slaves. Yet it quickly came to stand for little more than granting universal rights to make labor contracts and to leave service. This article develops a distinction between abolishing an institution and reclassifying individuals within it. Drawing on the comparative history of slavery, it shows that the institution of slavery has generally included mechanisms for the manumission of slaves and their passage into a liminal status combining self-ownership with social subordination and relative isolation. A critical account of the Antelope litigation shows that proponents of mass manumission still …

Note, Civil Forfeiture And Innocent Owners, Deborah Challener

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Although forfeiture is an ancient practice, its constitutional validity has only recently been seriously questioned. Historically, the Supreme Court has relied on a legal fiction-that the property itself is guilty-to confiscate property without regard to the Constitution. Cloaking itself in the "guilty property fiction," the Court has virtually ignored the property owner's culpability. In Bennis, the Court decided whether an owner's interest in property is subject to forfeiture when the owner entrusts the property to a party who uses it to commit a crime, even if the owner has no knowledge of the illegal use.

Natural Law And Constitutional Law, Gerard V. Bradley

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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 …

Shut Up And Vote: A Critique Of Deliberative Democracy And The Life Of Talk, James A. Gardner

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The More Things Change…: Superficial State Constitutional Analysis At The New York Court Of Appeals, James A. Gardner

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The "States-As-Laboratories" Metaphor In State Constitutional Law, James A. Gardner

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

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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

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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

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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, …

Justice William Johnson And The History Of Supreme Court Dissent, Meredith Kolsky Lewis

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Institutions And Linguistic Conventions: The Pragmatism Of Lieber's Legal Hermeneutics, Guyora Binder

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This article presents Francis Lieber’s 1839 treatise “Legal and Political Hermeneutics” as a surprisingly modern and pragmatic account of interpretation. It first explicates the two most important influences on Liber’s thought, the romantic philology of Friedrich Schleiermacher, and the institutional positivism of Whig jurists Story and Kent. It shows that both of these sources frankly acknowledged that interpretation is an institutional practice, organized by the evolving aims and customs of the institutions within which it took place. Both tended to view the writing and reading of texts as the deployment of linguistic conventions. Both movements thereby viewed meaning for all …

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

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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

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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, …

What Is A State Constitution?, James A. Gardner

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Foreword: Religious Participation In Public Debate, Matthew Steffey

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Homosexuality And Public Policy, Gerard V. Bradley

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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. …

Did The Slaves Author The Thirteenth Amendment? An Essay In Redemptive History, Guyora Binder

Journal Articles

American constitutional interpretation is deeply traditionalist, and privileges original intent. The difficulty with thus authorizing the past in interpreting the Thirteenth Amendment is that it purports to abolish custom and tradition as unjust. This essay argues that, given the Amendment’s denunciation of the polity that enacted it as illegitimate, its questionable formal pedigree, and the agency of the slaves in precipitating, defining, and resolving the crisis that enabled it, the slaves have a moral claim to status as its authors. It follows that the original intent guiding interpretation should be that of the slaves themselves.

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

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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 Failed Discourse Of State Constitutionalism, James A. Gardner

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Redefining The Modern Constraints Of The Establishment Clause: Separable Principles Of Equality, Subsidy, Endorsement, And Church Autonomy, Matthew Steffey

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Since 1947 the Establishment Clause' has been a substantive check on governmental activity at all levels. More than four decades later, the content of that check remains unsettled. The United States Supreme Court gave the Establishment Clause its predominant modem voice in 1971 in Lemon v. Kurtzman. Under the Lemon approach, all government practices are measured by the same standard. To survive constitutional attack, a practice "must have a secular purpose; it must neither advance nor inhibit religion in its principal or primary effect; and it must not foster an excessive entanglement with religion." In nearly all cases decided since, …

The Bill Of Rights And Originalism, Gerard V. Bradley

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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 …

Constitutional Theory Beyond Left And Right, Gerard V. Bradley

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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.

The Uses And Abuses Of Incumbency: People V. Ohrenstein And The Limits Of Inherent Legislative Power, James A. Gardner

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No abstract provided.

The Positivist Foundations Of Originalism: An Account And Critique, James A. Gardner

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No abstract provided.