Constitutional Law Commons^™

Of Power And Responsibility: The Political Morality Of Federal Systems, Daniel Halberstam

Articles

In comparative constitutional discourse, Americans are from Mars and Europeans from Venus; we eagerly tell our European counterparts about the U.S. constitutional experience, but rarely do we listen when they talk to us about their own. Whereas Europeans routinely examine U.S. constitutionalism as an illuminating point of comparison or contrast, as Americans, we seem convinced that we have nothing to learn from looking abroad. This Article challenges that assumption. In particular, it argues that American courts and scholars have overlooked an important alternative to the dominant interpretation of the division of powers in the United States by ignoring the theory …

Constitutional Theory In A Nutshell, Thomas E. Baker

Faculty Publications

This article provides a nutshell description of the leading theories and identifies some of the leading theorists on the Constitution. The unit of currency here is the academic law review article, not the Supreme Court decision. The citations here provide illustrative examples of the vast body of literature. The discussion provides preliminary sketches of an intellectual landscape that is vast and often foreboding to the beginner. This article is organized around three basic interpretative questions: Who has the authority to interpret the Constitution? What are the legitimate sources of meaning for interpreting the Constitution? How is the Constitution interpreted within …

Past And Present Proposed Amendments To The United States Constitution Regarding Marriage, Edward D. Stein

Articles

Proposals to amend the Constitution to prohibit same-sex marriages were recently actively discussed in the U.S. Senate and are likely to receive attention in the House before the year's end. This article situates arguments for these proposals within the history of attempts to amend the Constitution related to marriage by providing the first detailed, synthetic analysis of such previously proposed amendments. This examination reveals 133 previously proposed amendments to the Constitution relating to marriage, consisting primarily of proposals to prohibit interracial marriage, proposals to prohibit polygamy, and proposals to empower Congress to make uniform laws concerning marriage and divorce. By …

Eldred's Aftermath: Tradition, The Copyright Clause, And The Constitutionalization Of Fair Use, Stephen M. Mcjohn

Michigan Telecommunications & Technology Law Review

Eldred v. Ashcroft offered the Supreme Court broad issues about the scope of Congress's constitutional power to legislate in the area of intellectual property. In 1998, Congress added twenty years to the term of all copyrights, both existing and future copyrights. But for this term extension, works created during the 1920s and 1930s would be entering the public domain. Now such works will remain under copyright until 2018 and beyond. Eldred v. Ashcroft rejected two challenges to the constitutionality of the copyright extension. The first challenge contended that Congress had exceeded its power to grant copyrights for "limited Times" in …

Canadian Fundamental Justice And American Due Process: Two Models For A Guarantee Of Basic Adjudicative Fairness, David M. Siegel

ExpressO

This paper traces how the Supreme Courts of Canada and the United States have each used the basic guarantee of adjudicative fairness in their respective constitutions to effect revolutions in their countries’ criminal justice systems, through two different jurisprudential models for this development. It identifies a relationship between two core constitutional structures, the basic guarantee and enumerated rights, and shows how this relationship can affect the degree to which entrenched constitutional rights actually protect individuals. It explains that the different models for the relationship between the basic guarantee and enumerated rights adopted in Canada and the United States, an “expansive …

Marshall V Madison: The Supreme Court And Original Intent, 1803-1835, Gordon Lloyd

School of Public Policy Working Papers

Should the justices of the Supreme Court rely on “original intent” as the foundation for constitutional interpretation? Or should they be free to interpret the Constitution in light of hermeneutical approaches created by current philosophies of law? This essay examines the Marshall Court to determine whether its opinions take their bearings from the American Founding or instead rely on a philosophy of jurisprudence that can be separated from the Founding. The purposes of this essay are fourfold: 1) to provide a comprehensive account of the use of the Framers by the Marshall Court, 2) address the normative question of the …

Constitutional Purpose And Inter-Clause Conflict: The Constraints Imposed On Congress By The Copyright Clause, Andrew M. Hetherington

Michigan Telecommunications & Technology Law Review

The argument that the preamble of the Copyright Clause provides a strict constraint on congressional intellectual property legislation has met with broad support among legal academics, but it is viewed with some skepticism by the judiciary. The Supreme Court did acknowledge in Eldred that intellectual property legislation must, in at least some sense, promote the progress of science, but stressed that it is for Congress, not the courts, to decide what does and does not promote progress. The Court specifically rejected a "stringent" form of rational basis review for Copyright Clause enactments proposed in Justice Breyer's dissent, noting that the …

The Enumerated Powers Of States, Robert G. Natelson

Nevada Law Journal

No abstract provided.

Assassination, The War On Terrorism, And The Constitution, Rodney A. Smolla

University of Richmond Law Review

No abstract provided.

It's Not Really "Assassination": Legal And Moral Implications Of Intentionally Targeting Terrorists And Aggressor-State Regime Elites, Robert F. Turner

University of Richmond Law Review

No abstract provided.

Proposal For A New Executive Order On Assassination, Jeffrey F. Addicott

University of Richmond Law Review

No abstract provided.

Drug Regulations And The Constitution After Western States, Margaret Gilhooley

University of Richmond Law Review

No abstract provided.

Stopping Time: The Pro-Slavery And 'Irrevocable' Thirteenth Amendment, A. Christopher Bryant

Faculty Articles and Other Publications

In the post-secession winter of 1861, both Houses of Congress approved a proposed thirteenth amendment to the U.S. Constitution. Three northern States even ratified the proposal before the Civil War intervened. That version of the thirteenth amendment, introduced in the House by Representative Thomas Corwin of Ohio, purported to prohibit any future amendment granting Congress power to interfere with slavery in the States. The Congressional Globe volumes for the winter 1861 legislative session include rich debates about whether the amending power could be used to limit future exercise of that same authority. Those forgotten debates offer significant insights for modern …

Constitutional Existence Conditions And Judicial Review, Matthew D. Adler, Michael C. Dorf

Faculty Scholarship

Although critics of judicial review sometimes call for making the entire Constitution nonjusticiable, many familiar norms of constitutional law state what we call "existence conditions" that are necessarily enforced by judicial actors charged with the responsibility of applying, and thus as a preliminary step, identifying, propositions of sub-constitutional law such as statutes. Article I, Section 7, which sets forth the procedures by which a bill becomes a law, is an example: a putative law that did not go through the Article I, Section 7 process and does not satisfy an alternative test for legal validity (such as the treaty-making provision …

Obeisance To The Separation Of Powers And Protection Of Individuals' Rights And Liberties: The Honorable John C. Eldridge's Approach To Constitutional Analysis In The Court Of Appeals Of Maryland, 1974-2003, Lynne A. Battaglia

Maryland Law Review

No abstract provided.

The Dormant Commerce Clause And The Hormones Problem, Donald H. Regan

Book Chapters

It is obvious that no anti-discrimination regime can stop at forbidding explicit discrimination of the relevant sort. If only explicit discrimination is forbidden, lawmakers who want to discriminate can hide their discriminatory intentions behind facially neutral classifications that are nonetheless chosen because they differentially burden the protected class. So, we must be prepared to invalidate some facially neutral laws that have "discriminatory effect" or, as American lawyers often call it, "disparate impact." On the other hand, we cannot possibly invalidate all laws which have a disparate impact on a protected class; many perfectly reasonable laws adopted for completely innocent purposes …

Supreme Court Section 1983 Decisions: (October 2001 Term), Martin A. Schwartz

Scholarly Works

No abstract provided.

Is Including "Under God" In The Pledge Of Allegiance Lawful?: An Impeccably Correct Ruling, Peter Brandon Bayer

Scholarly Works

On June 26, 2002, in Newdow v. U.S. Congress, a divided panel of the United States Court of Appeals for the Ninth Circuit held that the 1954 Congressional amendment adding the words “under God” to the Pledge of Allegiance violated the First Amendment’s  proscription that, “Congress shall make not law respecting an establishment of religion.” Because the First Amendment’s Establishment Clause applies to the States via the due process clause of the Fourteenth Amendment, the Ninth Circuit likewise found unlawful a California school district’s policy encouraging public school students to utter the words “under God” as part of teacher-led …

Caseload Burdens And Jurisdictional Limitations: Some Observations From The History Of The Federal Courts, Edward A. Purcell Jr.

NYLS Law Review

No abstract provided.

Rethinking Fairness: Principled Legal Realism And Federal Jurisdiction, Aviam Soifer

NYLS Law Review

No abstract provided.

Interpreting U.S. Treaties In Light Of Human Rights Values, Lori Fisler Damrosch

NYLS Law Review

No abstract provided.

Jon O. Newman And The Abortion Decisions: A Remarkable First Year, Andrew D. Hurwitz

NYLS Law Review

No abstract provided.

Jon Newman’S Theory Of Disparagement And The First Amendment In The Administrative State, Edward L. Rubin

NYLS Law Review

No abstract provided.

Judicial Supremacy And Its Discontents, Dale Carpenter

Faculty Journal Articles and Book Chapters

This essay examines judicial supremacy and some of its discontents, old and new. Part I surveys the curiously quiet posture of the public and their representatives today on the issue of judicial supremacy. Part II contrasts this quiet with other eras when neither the people nor their representatives willingly accepted judicial supremacy. Part III considers the views of two important contemporary critics of judicial supremacy who write from very different constitutional and political perspectives.

Michael Paulsen argues that the President, as head of the coordinate and equal executive branch of the national government, has the power to interpret the Constitution …

The New Federalism, The Spending Power, And Federal Criminal Law, Richard W. Garnett

Journal Articles

It is difficult in constitutional-law circles to avoid the observation that we are living through a revival of federalism. Certainly, the Rehnquist Court has brought back to the public-law table the notion that the Constitution is a charter for a government of limited and enumerated powers, one that is constrained both by that charter's text and by the structure of the government it creates. This allegedly revolutionary Court seems little inclined, however, to revise or revisit its Spending Power doctrine, and it remains settled law that Congress may disburse funds in pursuit of ends not authorized explicitly in Article I …

The Law Of Nations And The Offenses Clause Of The Constitution: A Defense Of Federalism, Michael T. Morley

Scholarly Publications

No abstract provided.

Constitutional Issues In Information Privacy, Fred H. Cate, Robert Litan

Michigan Telecommunications & Technology Law Review

The U.S. Constitution has been largely ignored in the recent flurry of privacy laws and regulations designed to protect personal information from incursion by the private sector despite the fact that many of these enactments and efforts to enforce them significantly implicate the First Amendment. Questions about the role of the Constitution have assumed new importance in the aftermath of the September 11, 2001 terrorist attacks on the World Trade Center and the Pentagon. Recent efforts to identify and apprehend terrorists and to protect against future attacks threaten to weaken constitutional protections against government intrusions into personal privacy. However, these …

Hate Speech In The Constitutional Law Of The United States, William B. Fisch

Faculty Publications

Our general reporter, Professor Pizzorusso, has given us “incitement to hatred” - primarily against a group of persons defined in terms of race, ethnicity, national origin, gender, religion, sexual orientation, and the like--as the working definition of “hate speech”, and asks to what extent such speech is constitutionally protected in the reporting countries. The United States of America are known at least in recent times for providing exceptionally broad protection for otherwise objectionable speech and expression, and hate speech is understood to be one of the areas in which they have positioned themselves further out on the speech-protective end of …

Architexture, Akhil Reed Amar

Indiana Law Journal

Addison C. Harris Lecture, March 20, 2002

Race And The Development Of Law In America: Introduction To The Symposium, Robert A. Sedler

Law Faculty Research Publications

No abstract provided.