Constitutional Law Commons^™

Civil Rights And Federalism Fights: Is There A "More Perfect Union" For The Heirs To The Promise Of Brown?, Pace Jefferson Mcconkie

BYU Law Review

No abstract provided.

Federalism, Separation Of Powers, And The Legacy Of Garcia, Rex E. Lee

BYU Law Review

No abstract provided.

The Constitutional Interest In Getting The News: Toward A First Amendment Protection From Tort Liability For Surreptitious Newsgathering, Paul A. Lebel

William & Mary Bill of Rights Journal

No abstract provided.

Progress And Constitutionalism, Robert F. Nagel

Michigan Law Review

A Review of Robin West, Progressive Constitutionalism: Reconstructing the Fourteenth Amendment

The Slavery Of Emancipation, Guyora Binder

Cardozo Law Review

The Thirteenth Amendment of the U.S. Constitution commands that "neither slavery nor involuntary servitude shall exist." What has been the effect of this command?

It will serve my present purpose to offer the following toosimple answer to this complex question: the Thirteenth Amendment secured little more than the manumission of slaves already practically freed by the friction of war. It guaranteed, in Confederate General Robert Richardson's now well-known phrase, "nothing but freedom."

Supposing this answer to be true, a further question presents itself: Did the Thirteenth Amendment's effect fulfill its command? Did universal manumission abolish slavery?

A full answer to …

Comments On James Oakes, “The Compromising Expedient”, Robert A. Burt

Cardozo Law Review

Professor Oakes's excellent paper convincingly characterizes the 1787 Constitution as a reactionary abandonment of the antislavery ethos of the 1776 Revolution that had appeared to set the new country on a course toward the abolition of slavery. "What," he asks, "accounts for the Constitution's failure to promote the cause already pushed so far by the Revolution?" If we could answer this question, we might not only explain the reactionary falling away from the Revolution, but also shed light on the historically parallel phenomena that Oakes identifies at the end of his paper-the abandonment of the emancipatory impulse from the Civil …

Comment On Earl Maltz, Kenneth M. Stampp

Cardozo Law Review

Professor Earl Maltz has written an excellent brief account of Benjamin R. Curtis's judicial record as it relates to slavery, including his dissenting argument in the famous Dred Scott case. He found Curtis to be a perfect example of mid-nineteenth century Northern conservative Whigs-the "Cotton Whigs," as their antislavery critics called them. They disliked slavery, but, in equal measure, they disliked those who agitated against it. Both Southern proslavery extremists and Northern abolitionists appalled them, for both groups endangered the Union. Conservative Whig President Millard Fillmore would not have appointed Curtis to the Supreme Court if he had shared the …

Comment On Guyora Binder, “The Slavery Of Emancipation”, Michael Les Benedict

Cardozo Law Review

When I first received Professor Binder's highly theoretical, speculative, and thought-provoking paper, I wondered whether I was the right person to comment upon it. Professor Binder has a philosophical turn of mind; he is at home in the world of Hegel. I am disoriented in territory more exotic than that of Locke. In the history department of the Ohio State University, I teach the course that introduces our graduate students to the philosophy of history. However, I have always considered that a cosmic practical jokeon my students more than me-cooked up by the shades of Hegel, Collingwood, and Croce.

The Fifteenth Amendment And "Political Rights", Akhil Reed Amar

Cardozo Law Review

Professor Xi Wang has offered us an altogether exemplary paper on black suffrage. Rather than trying to criticize it, I shall attempt to extend it by picking up where he left off. My main text is the Fifteenth Amendment. I would like to suggest that the best interpretation of the Fifteenth Amendment would read it as encompassing a cluster of political rights; the Amendment protects not only the right to vote, but also the right to hold office, the right to be voted for, the right to vote in a legislature, the right to serve on a jury, and even …

Black Suffrage And The Redefinition Of American Freedom, 1860-1870, Xi Wang

Cardozo Law Review

One of the most important outcomes of the Civil War was the establishment of a new constitutional order. Under this new order, African Americans, a people whose essential human rights had been denied under the old constitutional order, were constitutionally emancipated from slavery and recognized as American citizens. They received the privileges and immunities that white Americans had automatically assumed. Male black Americans also received the right to vote. This new order, as embraced by the Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution, was a truly remarkable achievement of Reconstruction. What is additionally significant is that these Amendments became …

Comment On Donald Nieman's Paper, Randall Kennedy

Cardozo Law Review

I have two responses to Professor Neiman's paper. One emphasizes a point he makes. The other disagrees a bit with his reading of the promise of Reconstruction.

The Unlikely Hero Of Dred Scott: Benjamin Robbins Curtis And The Constitutional Law Of Slavery, Earl M. Maltz

Cardozo Law Review

The standard account portrays Dred Scott v. Sandford as a story of villains and heroes. The villains are the members of the majority, led by Chief Justice Roger Brooke Taney, who concluded that descendants of slaves could never become citizens of the Union and that Congress could not outlaw slavery in the territories. The heroes, on the other hand, are the two dissenters, John McLean and Benjamin Robbins Curtis, who rejected these conclusions and determined that Scott should be deemed a free man. McLean's opinion, however, was not tightly reasoned and was rather clearly designed to advance his presidential ambitions; …

Bondage, Freedom & The Constitution, Eric Foner

Cardozo Law Review

Linking the papers on this most interesting panel are questions that center on the meaning of freedom. What is freedom? Who has the power to define what freedom is? What are the consequences of slavery and its abolition for Americans' understandings of freedom? In one way or another, these papers, as well as many others in this conference, illuminate these questions.

Two Wrongs Don't Add Up To Rights: The Importance Of Preserving Due Process In Light Of Recent Welfare Reform Measures Administrative Driver's License Suspension: A Remedial Tool That Is Not In Jeopardy , Rebecca E. Zietlow

American University Law Review

No abstract provided.

Do You Need A Lawyer? You May Have To Wait 30 Days: The Supreme Court Went Too Far In Florida Bar V. Went For It, Inc. , Daniel L. Zelenko

American University Law Review

No abstract provided.

The Federalization Of State Crimes: Some Observations And Reflections, Sam J. Ervin Iii

West Virginia Law Review

No abstract provided.

Lopez And The Federalization Of Criminal Law, Russell L. Weaver

West Virginia Law Review

No abstract provided.

Administrative Driver's License Suspension: A Remedial Tool That Is Not In Jeopardy , Jennifer E. Dayok

American University Law Review

No abstract provided.

Choice Of Law And The Forgiving Constitution, Gene R. Shreve

Indiana Law Journal

No abstract provided.

Measured Constitutional Steps, Lisa A. Kloppenberg

Indiana Law Journal

No abstract provided.

Federalism And The Judicial Function: A Cutting Edge Amidst Professions Of Restraint, Donald E. Lively

West Virginia Law Review

No abstract provided.

Federalism, Federalization, And The Politics Of Crime, Gerald G. Ashdown

West Virginia Law Review

No abstract provided.

At Loggerheads: The Supreme Court And Racial Equality In Public School Education After Missouri V. Jenkins, Roberta M. Harding

Law Faculty Scholarly Articles

June 12th of 1995 marked a somber occasion in the annals of school desegregation litigation. On that day, the United States Supreme Court sent disturbing messages in its opinion in Missouri v. Jenkins. The Court's decision hinders achievement of the objective of school desegregation litigation—providing equal educational opportunities for African-American public school children—and detrimentally impacts other substantive areas of civil rights litigation. This article examines what I believe are several important general consequences of Jenkins's the impairment of a trial judge's discretionary equitable remedial powers; the Court's establishment of a new agenda that sacrifices the interests of African-American …

The Suspension Clause In The Ratification Debates, Eric M. Freedman

Buffalo Law Review

No abstract provided.

Mandatory Hiv Screening Of Newborns: A Proposition Whose Time Has Not Yet Come , Suzanne M. Malloy

American University Law Review

No abstract provided.

Official English, Nationalism And Linguistic Terror: A French Lesson, Leila Sada Wexler

Washington Law Review

Despite the preeminence of English in international discourse and census data indicating that ninety-nine percent of Americans speak English either very well or well, the Official English movement has garnered significant political support over the last ten years. Divorced from its political polemic, the objective of the Official English movement is the adoption of an "English Language Amendment" (ELA) to the Constitution that would require the use of English in public discourse as a matter of law. This Article approaches the question of what legal difference an ELA would make by studying the French experience under a recently adopted constitutional …

The Characterization Of Barriers To Interprovincial Trade Under The Canadian Constitution, George Vegh

Osgoode Hall Law Journal

This article identifies barriers to interprovincial trade as a legislative subject matter under the constitutional division of powers. It argues that interprovincial trade barriers should be characterized in terms of the disproportionate impact that provincial measures have on the flow of trade between the provinces. The term "disproportionate impact" means the measures' impediments to the flow of trade which are not necessary to implement the objectives of provincial legislation. This method of identifying trade barriers has been used to address trade barriers and other arrangements, such as the General Agreement on Tariffs and Trade, the Canada-United States Free Trade Agreement, …

Windfall Analysis: A New Look At Uncharged Conduct Evidence, David J. Achtenberg

Faculty Works

In criminal cases, the prosecution frequently offers evidence of uncharged conduct (usually prior criminal activity), claiming that it will tend to prove the mens rea element of the charged offense. When such an offer is made, Rule 404(b) of the Federal Rules of Evidence (FRE) creates a dilemma for the trial court. On the one hand, the rule forbids the introduction of uncharged conduct evidence (UCE) for one purpose: proof of a person's character in order to show that the person acted in conformity with that character trait on a particular occasion. On the other hand, it permits the introduction …

Incidental Burdens On Fundamental Rights, Michael C. Dorf

Cornell Law Faculty Publications

No abstract provided.

Constitutional Law—Supreme Court Invalidates Federal Gun-Free School Zones Act. United States V. Lopez, 115 S. Ct. 1624 (1995)., John M. Scott

University of Arkansas at Little Rock Law Review

No abstract provided.