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Articles 1441 - 1470 of 2338
Full-Text Articles in Constitutional Law
The Liberal Assault On The Fourth Amendment, Christopher Slobogin
The Liberal Assault On The Fourth Amendment, Christopher Slobogin
Vanderbilt Law School Faculty Publications
As construed by the Supreme Court, the Fourth Amendment's reasonableness requirement regulates overt, non-regulatory government searches of homes, cars, and personal effects-and virtually nothing else. This essay is primarily about how we got to this point. It is fashionable to place much of the blame for today's law on the Warren Court's adoption of the malleable expectation of privacy concept as the core value protected by the Fourth Amendment. But this diagnosis fails to explain why even the more liberal justices have often gone along with many of the privacy-diminishing holdings of the Court. This essay argues that three other …
Law's Religion: Rendering Culture, Benjamin L. Berger
Law's Religion: Rendering Culture, Benjamin L. Berger
Osgoode Hall Law Journal
This article argues that constitutional law's inability to deal with religion in a satisfying way flows, in part, from its failure to understand religion as, in a robust sense, culture. Once one begins to understand the Canadian constitutional rule of law itself as a cultural form, it becomes apparent that law renders religion in a very particular fashion, and that this rendering is a product of law's symbolic categories and interpretive horizons. This article draws out the elements of Canadian constitutionalism's unique rendering of religion and argues that, although Canadian constitutionalism claims to understand religion as a culture, this is …
After 150 Years, Worst Supreme Court Decision Ever Continues To Haunt, F. Michael Higginbotham
After 150 Years, Worst Supreme Court Decision Ever Continues To Haunt, F. Michael Higginbotham
All Faculty Scholarship
In 1857, the Supreme Court rendered a decision in Dred Scott v. Sandford, declaring that it had no jurisdiction to hear Dred Scott's claim to freedom because he was black and, therefore, not a citizen of the United States. This article argues that not only was the decision morally reprehensible, it was also based on an erroneous interpretation of the Constitution.
The Constitutional Foundations Of Chenery, Kevin M. Stack
The Constitutional Foundations Of Chenery, Kevin M. Stack
Vanderbilt Law School Faculty Publications
The Supreme Court regularly upholds federal legislation on grounds other than those stated by Congress. Likewise, an appellate court may affirm a lower court judgment even if the lower court's opinion expressed the wrong reasons for it. Not so in the case of judicial review of administrative agencies. The established rule, formulated in SEC v. Chenery Corp., is that a reviewing court may uphold an agency's action only on the grounds upon which the agency relied when it acted. This Article argues that something more than distrust of agency lawyers is at work in Chenery. By making the validity of …
An Expressive Jurisprudence Of The Establishment Clause, Ivan E. Bodensteiner, Alex Geisinger
An Expressive Jurisprudence Of The Establishment Clause, Ivan E. Bodensteiner, Alex Geisinger
Law Faculty Publications
No abstract provided.
Toward A Limited-Government Theory Of Extraterritorial Detention, Robert Knowles, Marc D. Falkoff
Toward A Limited-Government Theory Of Extraterritorial Detention, Robert Knowles, Marc D. Falkoff
Law Faculty Publications
No abstract provided.
Looking Off The Ball: Constitutional Law And American Politics, Mark A. Graber
Looking Off The Ball: Constitutional Law And American Politics, Mark A. Graber
Faculty Scholarship
“Looking Off the Ball” details how and why constitutional law influences both judicial and public decision making. Treating justices as free to express their partisan commitments may seem to explain Bush v. Gore*, but not the judicial failure to intervene in the other numerous presidential elections in which the candidate favored by most members of the Supreme Court lost. Constitutional norms and standards generate legal agreements among persons who dispute the underlying merits of particular policies under constitutional attack. The norms and standards explain constitutional criticism, why only a small proportion of the political questions that occupy Americans are normally …
The People Or The State?: Chisholm V. Georgia And Popular Sovereignty, Randy E. Barnett
The People Or The State?: Chisholm V. Georgia And Popular Sovereignty, Randy E. Barnett
Georgetown Law Faculty Lectures and Appearances
Chisholm v. Georgia was the first great constitutional case decided by the Supreme Court. In Chisholm, the Court addressed the fundamental question: Who is Sovereign? The People or the State? It adopted an individual concept of popular sovereignty rather than the modern view that limits popular sovereignty to collective or democratic self-government. It denied that the State of Georgia was a sovereign entitled, like the King of England, to assert immunity from a lawsuit brought by a private citizen. Despite all this, Chisholm is not among the canon of cases that all law students are taught. Why not? In this …
Presidential Signing Statements And Congressional Oversight, A. Christopher Bryant
Presidential Signing Statements And Congressional Oversight, A. Christopher Bryant
Faculty Articles and Other Publications
In response to highly controversial statements issued by President George W. Bush upon signing various bills into law, an American Bar Association Task Force and Senator Arlen Specter both recently called for the creation of a cause of action to obtain a federal judicial declaration concerning the legal validity of future presidential signing statements. This essay argues that such legislation would be ill-advised and counterproductive. It would exacerbate existing underlying institutional infirmities. More fundamentally, the inclination to facilitate immediate resort to the judiciary for resolution of a dispute between the political branches about the President's constitutional obligations is premised on …
Marbury In Mexico: Judicial Review’S Precocious Southern Migration, M C. Mirow
Marbury In Mexico: Judicial Review’S Precocious Southern Migration, M C. Mirow
Faculty Publications
In attempting to construct United States-style judicial review for the Mexican Supreme Court in the 1880s, Ignacio Vallarta, president of the court, read Marbury in a way that preceded this use of the case in the United States. Using this surprising fact as a central example, this article makes several important contributions to the field of comparative constitutional law. The work demonstrates that through constitutional migration, novel readings of constitutional sources can arise in foreign fora. In an era when the United States Supreme Court may be accused of parochialism in its constitutional analysis, the article addresses the current controversy …
The Balkanization Of Originalism, James E. Fleming
The Balkanization Of Originalism, James E. Fleming
Maryland Law Review
No abstract provided.
The Downlow On Kelo: How An Expansive Interpretation Of The Public Use Clause Has Opened The Floodgates For Eminent Domain Abuse, Eric L. Silkwood
The Downlow On Kelo: How An Expansive Interpretation Of The Public Use Clause Has Opened The Floodgates For Eminent Domain Abuse, Eric L. Silkwood
West Virginia Law Review
No abstract provided.
Symposium - The Maryland Constitutional Law Schmooze Foreword: Making Sense Of An Eighteenth-Century Constitution In A Twenty-First-Century World, Mark A. Graber
Maryland Law Review
No abstract provided.
The Original Meaning Of Original Understanding: A Neo-Blackstonian Critique, Saul Cornell
The Original Meaning Of Original Understanding: A Neo-Blackstonian Critique, Saul Cornell
Maryland Law Review
No abstract provided.
What Is A Twentieth-Century Constitution?, Peter E. Quint
What Is A Twentieth-Century Constitution?, Peter E. Quint
Maryland Law Review
No abstract provided.
From “Just” To “Just Decent”? Constitutional Transformations And The Reordering Of The Twenty-First-Century Public Sphere, Cindy Skach
Maryland Law Review
No abstract provided.
A Place For Interposition? What John Taylor Of Caroline And The Embargo Crisis Have To Offer Regarding Resistance To The Bush Constitution, Bradley D. Hays
A Place For Interposition? What John Taylor Of Caroline And The Embargo Crisis Have To Offer Regarding Resistance To The Bush Constitution, Bradley D. Hays
Maryland Law Review
No abstract provided.
Afterword: Do We Really Believe Any Longer In The Possibility Of “Government From Reflection And Choice”? A Dour Meditation On Our Present Situation, Sanford Levinson
Afterword: Do We Really Believe Any Longer In The Possibility Of “Government From Reflection And Choice”? A Dour Meditation On Our Present Situation, Sanford Levinson
Maryland Law Review
No abstract provided.
The Constitution Outside The Constitution, Ernest A. Young
The Constitution Outside The Constitution, Ernest A. Young
Faculty Scholarship
Countries lacking a single canonical text define the “constitution” to include all laws that perform the constitutive functions of creating governmental institutions and conferring rights on individuals. The British Constitution, for example, includes a variety of constitutive statutes, such as the Magna Carta and the Parliament Acts. This Article proposes a thought experiment: what if we defined the U.S. Constitution by function, rather than by form? Viewed from this perspective, “the Constitution” would include not only the canonical document but also a variety of statutes, executive materials, and practices that structure our government. What these constitutive materials lack is a …
The Federal Judicial Power And The International Legal Order, Curtis A. Bradley
The Federal Judicial Power And The International Legal Order, Curtis A. Bradley
Faculty Scholarship
No abstract provided.
Introductory Remarks: The Relationship Of Law And Morality In Respect To Constitutional Law, William W. Van Alstyne
Introductory Remarks: The Relationship Of Law And Morality In Respect To Constitutional Law, William W. Van Alstyne
Faculty Scholarship
This article explores the consequences of a Constitution not entirely aligned with moral law. These remarks encourage all legal minds to acknowledge such gaps when they are found, although there are a variety of ways in which such acknowledgment may take shape.
Levinson And Constitutional Reform: Some Notes, Stephen M. Griffin
Levinson And Constitutional Reform: Some Notes, Stephen M. Griffin
Maryland Law Review
No abstract provided.
Originalism, The Living Constitution, And Supreme Court Decision Making In The Twenty-First Century: Explaining Lawrence V. Texas, Ronald Kahn
Maryland Law Review
No abstract provided.
The Fog Of War: Checks And Balances And National Security Policy, Kenneth Ward
The Fog Of War: Checks And Balances And National Security Policy, Kenneth Ward
Maryland Law Review
No abstract provided.
Geographic Representation And The U.S. Congress, Frances E. Lee
Geographic Representation And The U.S. Congress, Frances E. Lee
Maryland Law Review
No abstract provided.
Constitutional Reforms To Enhance Democratic Participation And Deliberation: Not All Clearly Trigger The Article V Amendment Process, Carol Nackenoff
Constitutional Reforms To Enhance Democratic Participation And Deliberation: Not All Clearly Trigger The Article V Amendment Process, Carol Nackenoff
Maryland Law Review
No abstract provided.
Demystifying Social Welfare: Foundations For Constitutional Design, Joe Oppenheimer, Norman Frohlich
Demystifying Social Welfare: Foundations For Constitutional Design, Joe Oppenheimer, Norman Frohlich
Maryland Law Review
No abstract provided.
Slavery And The Marshall Court: Preventing “Oppressions Of The Minor Party”?, Leslie Friedman Goldstein
Slavery And The Marshall Court: Preventing “Oppressions Of The Minor Party”?, Leslie Friedman Goldstein
Maryland Law Review
No abstract provided.
Two Cheers For Eighteenth-Century Constitutionalism In The Twenty-First Century, George Thomas
Two Cheers For Eighteenth-Century Constitutionalism In The Twenty-First Century, George Thomas
Maryland Law Review
No abstract provided.
Juvenile Curfews: Political Pandering At The Expense Of A Fundamental Right, Toni L. Conner
Juvenile Curfews: Political Pandering At The Expense Of A Fundamental Right, Toni L. Conner
West Virginia Law Review
No abstract provided.