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Articles 121 - 150 of 266
Full-Text Articles in Constitutional Law
The Fate Of The Native Hawaiians: The Special Relationship Doctrine, The Problem Of Strict Scrutiny, And Other Issues Raised By Rice V. Cayetano, William E. Spruill
The Fate Of The Native Hawaiians: The Special Relationship Doctrine, The Problem Of Strict Scrutiny, And Other Issues Raised By Rice V. Cayetano, William E. Spruill
University of Richmond Law Review
Harold "Freddy" Rice is a Native Hawaiian in the sense that he was born in the Hawaiian Islands and can "trace[ ] his ancestry to two members of the legislature of the Kingdom of Hawaii, prior to the Revolution of 1893. " He is a taxpayer and a qualified elector of the United States, the State of Hawaii, and the County of Hawaii. When Rice applied to vote in the 1996 election for the trustees of the Office of Hawaiian Affairs ("OHA"), however, his application was denied. Why? Because, according to a state statute, he was not Hawaiian enough.
University Of Richmond Law Review
University Of Richmond Law Review
University of Richmond Law Review
No abstract provided.
Against Constitutional Law (Populist Or Otherwise), Michael Mandel
Against Constitutional Law (Populist Or Otherwise), Michael Mandel
University of Richmond Law Review
Mark Tushnet has written a great critique of constitutional judicial review. With his sure grasp of the scholarship, his commit- ment to the issues and the real people behind them, and his methodical, flawless reasoning, he has effectively blasted the theoretical foundations of judicial constitutional law to smithereens. As such, he has made a valuable contribution to legal scholarship that will remain so for a long time to come.
A Right To Confrontation Or Insinuation? The Supreme Court's Holding In Portuondo V. Agard, J. Fielding Douthat Jr.
A Right To Confrontation Or Insinuation? The Supreme Court's Holding In Portuondo V. Agard, J. Fielding Douthat Jr.
University of Richmond Law Review
Imagine that you are charged with a crime that you did not commit. Forced to attend your own trial, you choose to testify on your own behalf. The prosecutor conducts his best spin to discredit you, but his attempts are largely unsuccessful. Not only is your story consistent with that of other witnesses, but it is a plausible accounting of the disputed facts. The reason: your story is the truth. Nevertheless, in summation, the prosecutor attacks your credibility. His argument, however, addresses no inconsistencies, no physical evidence, and no concrete reason to cast doubt on your story. Instead, he argues …
Reanimator: Mark Tushnet And The Second Coming Of The Imperial Presidency, Neal Devins
Reanimator: Mark Tushnet And The Second Coming Of The Imperial Presidency, Neal Devins
University of Richmond Law Review
A world without judicial review? Not that long ago-when the Left fought tooth and nail to defend the legacy ofthe Warren and (much of the) Burger Courts-the thought of taking the Constitution away from the courts would have been horrific. Witness, for example, Edward Kennedy's depiction of "Robert Bork's America!' as "a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, [and] rogue police could break down citizens' doors in midnight raids." Bork's sin, of course, was embracing a kind of populist constitutional discourse, that is, the notion that the founders "banked …
Populist Natural Law (Reflections On Tushnet's "Thin Constitution"), Frank I. Michelman
Populist Natural Law (Reflections On Tushnet's "Thin Constitution"), Frank I. Michelman
University of Richmond Law Review
Constitutional review is the activity of measuring action choices of governments against a pre-existing set of publicly known or ascertainable, "higher" norms for the conduct of government. Anyone can do it: chief executives pondering vetoes or preparing state messages; legislators contemplating legal change; police chiefs reviewing department manuals; school board members debating curriculum guides; city planners routing highway expansions; citizens lobbying and pundits castigating any or all of the above; dinner partners talking politics; candidates running for office; voters turning out rascals. "American-style judicial review," let us say, is constitutional review conducted by a nonpopular, unelected, life-tenured body, whose decisions, …
Looking Sideways, Looking Backwards, Looking Forwards: Judicial Review Vs. Democracy In Comparative Perspective, Ran Hirschl
Looking Sideways, Looking Backwards, Looking Forwards: Judicial Review Vs. Democracy In Comparative Perspective, Ran Hirschl
University of Richmond Law Review
For the [past] two centuries, the Constitution [has been] as central to American political culture as the New Testament was to medieval Europe. Just as Milton believed that "all wisdom is enfolded" within the pages of the Bible, all good Americans, from the National Rifle Association to the ACLU, have believed no less of this singular document.
Comparing Alternative Approaches About Congress's Role In Constitutional Law, Charles Tiefer
Comparing Alternative Approaches About Congress's Role In Constitutional Law, Charles Tiefer
University of Richmond Law Review
Mark Tushnet's Taking the ConstitutionAway from the Courts presents many aspects of the theme expressed in its title. I find most interesting the aspect concerning Congress's role in constitutional law. I like this aspect because I spent almost two decades working on constitutional law in Congress, principally as the House of Representatives' Solicitor and Deputy General Counsel representing the House of Representatives in countless constitutional controversies, and I have written a good deal about it. Tushnet provides us with an alternative perspective from which we can view Congress both during that time and since. Tushnet's book is kind enough to …
Herbert Wechsler's Complaint And The Revival Of Grand Constitutional Theory, Keith E. Whittington
Herbert Wechsler's Complaint And The Revival Of Grand Constitutional Theory, Keith E. Whittington
University of Richmond Law Review
In 1988, Mark Tushnet noted the "revival of grand theory in constitutional law." Tushnet was somewhat unusual in specifying the object of contemporary constitutional theory so precisely. As he noted, what had been revived in the late twentieth century was an "interest in comprehensive normative theories of constitutional law." There was relatively little broad concern with constitutionalism in this revival, but quite a lot of concern with justifying and elaborating the preferred constitutional decisions of the Supreme Court in specific cases. Having "just published a book on constitutional theory that I unsurprisingly but undoubtedly erroneously regard as the last word …
Response: Politics, National Identify, And The Thin Constitution, Mark Tushnet
Response: Politics, National Identify, And The Thin Constitution, Mark Tushnet
University of Richmond Law Review
Any author would be pleased at having his or her work taken as seriously as mine has been by the contributors to this Symposium. As I wrote in Taking the ConstitutionAway from the Courts, my aim was not so much to place on the table a serious policy proposal-elimination of judicial review-but rather was to broaden a discussion about constitutionalism and judicial review that has been far too narrow. For a decade or more, constitutional theory and theorists have been overly concerned with questions about constitutional interpretation that are the legacy of controversies over the Warren Court's liberal activism. The …
Commerce Clause, Enforcement Clause, Or Neither? The Constitutionality Of The Violence Against Women Act In Brzonkala V. Morrison, Christine M. Devey
Commerce Clause, Enforcement Clause, Or Neither? The Constitutionality Of The Violence Against Women Act In Brzonkala V. Morrison, Christine M. Devey
University of Richmond Law Review
On September 21, 1994, two men raped Christy Brzonkala in her dormitory room at Virginia Polytechnic Institute and State Univer- sity("VirginiaTech"). Unfortunately,this kind of event is not a rare occurrence in the United States. "According to the U.S. Department of Justice Bureau of Justice Statistics ("BJS"), women are the victims of more than 4.5 million violent crimes each year. This alarming figure includes approximately 500,000 rapes or other sexual assaults." In light of these statistics, and "after four years of hearings, Congress enacted [the Violence Against Women Act of 1994 ("VAWA" or "the Act")], a comprehensive federal statute designed to …
Students Under Siege? Constitutional Considerations For Public Schools Concerned With School Safety, Jennifer L. Barnes
Students Under Siege? Constitutional Considerations For Public Schools Concerned With School Safety, Jennifer L. Barnes
University of Richmond Law Review
Imagine the following scenario: The principal at River City High School receives a telephone call from an anonymous informant, notifying her that he had observed a knife in "Jimmy's" backpack, and indicated that he might also have access to a gun. The principal recalls that Jimmy is the student who has dyed his hair blue and who wanders the halls wearing a black trench coat and a T-shirt that reads "School Sucks," in violation of the school district's dress code. She checks Jimmy's file and discovers that he has been absent on numerous occasions during the school year and has …
The Government Of The Living-The Legacy Of The Dead, Jon C. Blue
The Government Of The Living-The Legacy Of The Dead, Jon C. Blue
University of Richmond Law Review
Akhil Amar has written a stunning book about what he calls "the high temple of our constitutional order"-the Bill of Rights. The temple metaphor is revealing, for it is evident throughout his book that Professor Amar views the Constitution as a sanctified structure, the use of which is to be determined by a holistic study of the original blueprints and the surviving comments of the long-dead architects. This characterization is complicated but not fundamentally changed by the fact that Amar's story is, as the subtitle of the book proclaims, one of "creation and reconstruction." The creation is that of the …
The Constitution As A Whole: A Partial Political Science Perspective, Mark A. Graber
The Constitution As A Whole: A Partial Political Science Perspective, Mark A. Graber
University of Richmond Law Review
The Bill of Rights: Creationand Reconstruction ("The Bill of Rights")' is a professionally rewarding and disturbing masterpiece. The work is professionally rewarding because Professor Akhil Amar develops a meticulously detailed, historically sophisticated, and largely persuasive account of how the liberties set out in the Bill of Rights were originally understood and the original relationship between the Bill of Rights and the Fourteenth Amendment. This is state of the art legal scholarship that will no doubt influence the way the next generation of constitutional lawyers and historians study fundamental constitutional rights. Professor Amar's book is professionally disturbing in part because, having …
The Concept Of Incorporation, Earl M. Maltz
The Concept Of Incorporation, Earl M. Maltz
University of Richmond Law Review
Akhil Amar's new book is by any standard a major contribution to the literature on the Bill of Rights. Amar skillfully combines historical research and legal analysis to give the reader a variety of fresh, important insights into the role that the first ten amendments have played in the evolution of the American constitutional system. Among the many innovative concepts in the book is Amar's treatment of the question of whether the Fourteenth Amendment was originally understood to incorporate the Bill of Rights. Rejecting the traditional dogmas of both incorporation and anti-incorporation theorists, he proposes a new theory-"refined incorporationism"-which focuses, …
Response: Continuing The Conversation, Akhil Reed Amar
Response: Continuing The Conversation, Akhil Reed Amar
University of Richmond Law Review
In The Bill of Rights: Creation and Reconstruction, I aimed to start a conversation, not end one. I am thus grateful for the generosity of the many fine scholars who in the preceding pages have graciously accepted the invitation to converse. And I am especially grateful for the extraordinary hospitality of the University of Richmond Law Review, which has kindly given a home to this conversation.
University Of Richmond Law Review
University Of Richmond Law Review
University of Richmond Law Review
No abstract provided.
Refined Incorporation And The Fourteenth Amendment, Richard L. Aynes
Refined Incorporation And The Fourteenth Amendment, Richard L. Aynes
University of Richmond Law Review
In Professor Akhil Reed Amar's The Bill of Rights: Creation and Reconstruction, the voices of Founders, Federalists, Anti-Federalists, promoters of the Bill of Rights, contrarians of Barron v. Mayor of Baltimore, abolitionists, antislavery advocates, Fourteenth Amendment Republican Framers, ratifiers, and twentieth-century U.S. Supreme Court justices, all have their role. If they do not sing the same tune, at least their voices, under Amar's skillful direction, whether melody or harmony, alto or soprano, all harmonize to produce a clear song.
Akhil Amar And The Establishment Clause, Andrew Koppelman
Akhil Amar And The Establishment Clause, Andrew Koppelman
University of Richmond Law Review
Does Akhil Amar's The Bill of Rights: Creation and Reconstruction ("The Bill of Rights") say anything about what the law should be today? The answer is not clear. The book is a study of the original meaning of the Bill of Rights and the transformation of that meaning by the Fourteenth Amendment. Its project is archaeological rather than prescriptive. It focuses on what the Constitution meant in 1791 and in 1866, not what it means now. Amar acknowledges that he has "merely set the scene" for an investigation into what impact twentieth-century (textual and other) developments have had on Constitutional …
Establishing A Pattern: An Analysis Of The Supreme Court's Establishment Clause Jurisprudence, Lisa Langendorfer
Establishing A Pattern: An Analysis Of The Supreme Court's Establishment Clause Jurisprudence, Lisa Langendorfer
University of Richmond Law Review
The First Amendment to the United States Constitution reads in part, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." These two phrases are known as the Establishment Clause and the Free Exercise Clause, respectively, and each plays a distinct part in determining the role and status of religion in American society. The Free Exercise Clause guarantees freedom of religious expression to the individual, while the Establishment Clause prohibits the government from involving itself in religious affairs and prevents religious officials from exerting improper influence over the government.
Preface, John P. Cunningham
Preface, John P. Cunningham
University of Richmond Law Review
The University of Richmond Law Review is extremely pleased to present this special issue dedicated to Professor Akhil Reed Amar's The Bill of Rights: Creation and Reconstruction. The purpose of the issue is to celebrate the groundbreaking nature of Professor Amar's contemporary text by providing a collection of eleven scholarly commentaries in which some of the finest constitutional jurists in the United States react to the book. The commentators each offer a unique perspective on the dynamic text, utilizing legal, judicial, historical, philosophical, and even esoteric influences to analyze its contents. In an eloquent response to his academic peers, Continuing …
Two Movements Of A Constitutional Symphony: Akhil Reed Amar's The Bill Of Rights, Kurt T. Lash
Two Movements Of A Constitutional Symphony: Akhil Reed Amar's The Bill Of Rights, Kurt T. Lash
University of Richmond Law Review
A remarkable effort is afoot to justify American constitutional law at the end of the twentieth century. Ground zero in this effort is Yale Law School, and the principle architects are professors Akhil Reed Amar and Bruce Ackerman. Together, these scholars are calling for a reevaluation of commonly accepted doctrines with the goal of grounding judicial review and constitutional interpretation on the principles of popular sovereignty. What makes the effort remarkable is its emphasis on political morality, as opposed to the attainment of a particular doctrinal end. Take, for example, Amar's explanation of his purpose in writing The Bill of …
The Original Understanding Of The Seventh Amendment Right To Jury Trial, Stanton D. Krauss
The Original Understanding Of The Seventh Amendment Right To Jury Trial, Stanton D. Krauss
University of Richmond Law Review
I ought to be very angry with my friend Akhil Amar. His new book, The Bill of Rights: Creation and Reconstruction, strengthens, develops, and popularizes his strikingly original claim that the meaning of our Bill of Rights must be sought in the understanding of the people who enacted the Fourteenth Amendment, rather than that of James Madison and his contemporaries. If Akhil carries the day on this question-and I find his arguments quite powerful, my ongoing research into the original meaning of the Bill will be of interest only to antiquarians.
We Some Of The People: Akhil Reed Amor And The Original Intent Of The Bill Of Rights, Wythe Holt
We Some Of The People: Akhil Reed Amor And The Original Intent Of The Bill Of Rights, Wythe Holt
University of Richmond Law Review
The Leninist model of working-class consciousness and that of the Commons/Perlman progressive school of labor economists have much in common. Both regard the intellectual as playing a crucial role in changing the workers' consciousness.
"No Word Is An Island": Textualism And Aesthetics In Akhil Reed Amar's The Bill Of Rights, Robert Spoo
"No Word Is An Island": Textualism And Aesthetics In Akhil Reed Amar's The Bill Of Rights, Robert Spoo
University of Richmond Law Review
Akhil Reed Amar's The Bill of Rights: Creation and Reconstruction ("The Bill of Rights") probes three defining moments of American constitutional history-two of them in the contested past and one in the restless present. The first two are the performative acts of framing, in 1789 and 1868, respectively, of the initial ten amendments and of the Fourteenth Amendment to the United States Constitution. For Amar, history is too multivalent, and the Framers' text too loftily open-textured, for simple answers to the vexed question of incorporation. The Bill of Rights is, in one of Amar's controlling metaphors, an "alloy" of majoritarian …
The Bill Of Rights As An Exclamation Point, Gary Lawson
The Bill Of Rights As An Exclamation Point, Gary Lawson
University of Richmond Law Review
Akhil Amar's The Bill of Rights: Creation and Reconstruction ("The Bill of Rights") is one of the best law books of the twentieth century. That is not surprising, as it grows out of two of the best law review articles of the twentieth century and was written by one of the century's premier legal scholars. I have been an unabashed Akhil Amar fan ever since our overlapping law school days more than fifteen years ago, and I am thrilled to have my perspicacity and good judgment vindicated by the publication of this remarkable work.
The Constitutionality Of Censure, Michael J. Gerhardt
The Constitutionality Of Censure, Michael J. Gerhardt
University of Richmond Law Review
It has become commonplace for commentators to suggest that, in the aftermath of the Senate's acquittal of President William Jefferson Clinton, there have been only losers and no real winners. Whether this is true generally is a difficult question to which I will not hazard an answer. It is beyond question, however, that one device that lost ground as a result of the storm of impeachment was censure. That censure has taken a severe beating is unfortunate because so much of the beating was based on misguided interpretations of, or arguments about, the Constitution.
"The Federal Courts": Constituting And Changing The Topic, Judith Resnik
"The Federal Courts": Constituting And Changing The Topic, Judith Resnik
University of Richmond Law Review
I am honored to write the foreword to this issue of the University of Richmond Law Review dedicated to "The Federal Courts." The editors have asked me to address the question of the role of the federal judiciary today. No issue is more pressing within federal judicial circles. The Congress has, in the last few years, enacted several jurisdictional statutes, some that expand' and others that limit the authority of the federal courts, thereby raising questions about congressional powers over federal jurisdiction. The shape of the appellate structure of the federal courts is now under review pursuant to the congressionally-chartered …
The Declaration Of Independence In Constitutional Interpretation: A Selective History And Analysis, Charles H. Cosgrove
The Declaration Of Independence In Constitutional Interpretation: A Selective History And Analysis, Charles H. Cosgrove
University of Richmond Law Review
In 1845, antislavery constitutionalist Lysander Spooner argued that the Declaration of Independence was originally a legal constitution with a direct bearing on how one ought to interpret the status of slavery under the Constitution of 1787. In 1889, the congressional act establishing the states of North Dakota, South Dakota, Montana, and Washington required that their state constitutions "not be repugnant to the Constitution of the United States and the Declaration of Independence," as if the two documents were of a piece. In 1995, attorney Christopher Darden argued to the jury in the O.J. Simpson criminal trial that slain victims Nicole …
Annual Survey Of Virginia Law: Constitutional Law, Mark J. Yeager
Annual Survey Of Virginia Law: Constitutional Law, Mark J. Yeager
University of Richmond Law Review
On February 27, 1998, the Supreme Court of Virginia rendered its decision in Town of Madison v. Ford. The court invalidated a town zoning ordinance which had been enacted in 1972. This extreme result was due to an insufficiency in the town council's minutes at the meeting when the ordinance in question was enacted. The minutes did not state the names of all the members present nor how they voted. The court, therefore, found that the ordinance was enacted in derogation of the provisions of article VII, section 7 of the Constitution of Virginia ("section 7").