Constitutional Law Commons^™

Has Nihilism Politicized The Supreme Court Nomination Process?, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals

The Role Of Religiously Affiliated Law Schools In The Renewal Of American Democracy, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.

Is Religion A Non-Negotiable Aspect Of Liberal Constitutionalism?, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.

The Contract Clause: A Constitutional History By James W. Ely (Review), Jay D. Wexler

Shorter Faculty Works

If the Constitution were a zoo, what resident animal would the Contract Clause be? The clause, which is found in Article I, section 10 of our founding document, reads: “No state shall . . . pass any . . . Law impairing the Obligation of Contracts.” It certainly would not be one of the zoo’s star attractions; the Contract Clause is no First Amendment lion or Fourth Amendment tiger. But it is no bat-eared fox (the Letters of Marque Clause?) or Eurasian water shrew (the Third Amendment?) either. Based on reading Ely’s comprehensive history of the Contract Clause, perhaps it …

The Meanings Of The "Privileges And Immunities Of Citizens" On The Eve Of The Civil War, David R. Upham

Notre Dame Law Review

The Fourteenth Amendment to our Constitution provides, in part, that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” This “Privileges or Immunities Clause” has been called “the darling of the professoriate.” Indeed, in the last decade alone, law professors have published dozens of articles treating the provision. The focus of this particular study is the interpretation of the “privileges and immunities of citizens” offered by American political actors, including not only judges, but also elected officials and private citizens, before the Fourteenth Amendment, and primarily, on the …

Reconceptualizing The Eighth Amendment: Slaves, Prisoners, And Cruel And Unusual Punishment, Alexander A. Reinert

Articles

The meaning of the Eighth Amendment’s Cruel and Unusual Punishment Clause has long been hotly contested. For scholars and jurists who look to original meaning or intent, there is little direct contemporaneous evidence on which to rest any conclusion. For those who adopt a dynamic interpretive framework, the Supreme Court’s “evolving standards of decency” paradigm has surface appeal, but deep conflicts have arisen in application. This Article offers a contextual account of the Eighth Amendment’s meaning that addresses both of these interpretive frames by situating the Amendment in eighteenth and nineteenth-century legal standards governing relationships of subordination.

In particular, I …

The Threat Of Independent Political Spending To Democratic Life—And A Plan To Stop It, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.

The Five Days In June When Values Died In American Law, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.

Tone Deaf To The Past: More Qualms About Public Meaning Originalism, Jack Rakove

Fordham Law Review

    With some apologies for a vast degree of oversimplification, let us stipulate that there are two main forms of originalism. One is known as “semantic” or “public meaning” originalism. Its leading advocates include Lawrence Solum, Keith Whittington, and Randy Barnett (professional friends, all). The leading premise of semantic originalism is that the meaning of the constitutional text—or, more specifically, of its individual clauses—was fixed at the moment of its adoption. Under this view, the goal of constitutional interpretation is to recover that original meaning, and the best way to do that pivots on reconstructing how an informed reader, whether a …

Historians And The New Originalism: Contextualism, Historicism, And Constitutional Meaning, Martin S. Flaherty

Fordham Law Review

    Toward that end, this Foreword addresses three matters. First, it considers why the use of history in constitutional interpretation is inescapable. Next, it suggests that the Essays in this forum do not go far enough in debunking the idea of “public meaning” originalism as a serious alternative to previous approaches. Finally, the balance of this Foreword reviews the also perhaps inescapable misuses of history that constitutional interpretation invites and considers the type of misuse that public meaning originalism represents.

“To Assemble Together For Their Common Good”: History, Ethnography, And The Original Meanings Of The Rights Of Assembly And Speech, Saul Cornell

Fordham Law Review

    The Whiskey Rebellion is not generally a major focus in constitutional histories or casebooks. Given this fact, it is hardly surprising that the 1795 case Respublica v. Montgomery seldom figures as more than a minor footnote in scholarly writing about early American constitutional development, if it receives any attention at all. The case has little precedential value for modern First Amendment doctrine and only obliquely implicates larger jurisprudential questions about the rights of assembly and freedom of expression. In strictly doctrinal terms, Montgomery is primarily about the obligation of a justice of the peace to put down a riot, not …

Historicism And Holism: Failures Of Originalist Translation, Jonathan Gienapp

Fordham Law Review

    For as long as the U.S. Constitution has existed, Americans have appealed to the history of its creation to interpret its meaning. But only since the advent of originalism—the well-known constitutional theory that requires interpreting the Constitution today in accordance with its original meaning—has historical study been so immediately implicated by constitutional interpretation. Despite potential, though, for meaningful exchange between originalists and historians, little has taken place. That originalism plays an ever-growing role in contemporary political culture only makes the lack of dialogue all the more unfortunate.

Outsourcing The Law: History And The Disciplinary Limits Of Constitutional Reasoning, Helen Irving

Fordham Law Review

    Debates about the use of history in constitutional interpretation find their primary nourishment in the originalism debate. This has generated a vast amount of literature, but also narrowed the terms of the debate. Originalism is a normative commitment wrapped in a questionable methodological confidence. Regardless of the multiple forms originalism takes, originalists are confident that the meaning (in the sense of intention) that animated the framing of the Constitution can be ascertained and, indeed, that they can ascertain it. The debate has largely focused, then, on whether modern-day scholars and jurists can ascertain original historical meaning or, alternatively, whether they …

Originalism As Thin Description: An Interdisciplinary Critique, Saul Cornell

Res Gestae

My essay was intended as a critique of originalism from the perspective of intellectual history. I pointed out that originalism lacked a rigorous empirical method for analyzing what texts meant in the past. I suppose in some sense it is flattering that Solum has devoted much of his recent article to an attack on my earlier essay. Of course, flattery aside, it would have been more useful if Solum had stated my thesis correctly. For purposes of clarity, I have juxtaposed Solum’s description of my argument with what my essay actually said. Readers will be able to judge for themselves …

The Sweeping Domestic War Powers Of Congress, Saikrishna Bangalore Prakash

Michigan Law Review

With the Habeas Clause standing as a curious exception, the Constitution seems mysteriously mute regarding federal authority during invasions and rebellions. In truth, the Constitution speaks volumes about these domestic wars. The inability to perceive the contours of the domestic wartime Constitution stems, in part, from unfamiliarity with the multifarious emergency legislation enacted during the Revolutionary War. During that war, state and national legislatures authorized the seizure of property, military trial of civilians, and temporary dictatorships. Ratified against the backdrop of these fairly recent wartime measures, the Constitution, via the Necessary and Proper Clause and other provisions, rather clearly augmented …

May 6, 2015: Iconic Picture Of Burning Silliman Hall, Bruce Ledewitz

Hallowed Secularism

Blog post, “ Iconic Picture of Burning Silliman Hall“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Defeating The Super Pacs That Distort Our Political Process, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.

Creating A Self-Stabilizing Constitution: The Role Of The Takings Clause, Tonja Jacobi, Sonia Mittal, Barry R. Weingast

Northwestern University Law Review

The U.S. Constitution has survived for over two centuries, despite the Civil War and numerous other crises. In contrast, most national constitutions last less than two decades. Why has the Constitution sustained a largely stable democratic system while so many others have failed? A self-stabilizing constitution creates incentives for all relevant actors to abide by the rules. Drawing on earlier work, we argue that, to be self- stabilizing, a constitution must (1) lower stakes in politics for both ordinary citizens and powerful elite groups; (2) create focal points that facilitate citizen coordination against transgressions by government officials; and (3) enable …

Saving Originalism, Robert J. Delahunty, John Yoo

Michigan Law Review

It is sometimes said that biographers cannot help but come to admire, even love, their subjects. And that adage seems to ring true of Professor Amar, the foremost “biographer” of the Constitution. He loves it not just as a governing structure, or a political system, but as a document. He loves the Constitution in the same way that a fan of English literature might treasure Milton’s Paradise Lost or Shakespeare’s Macbeth. He loves the Constitution not just for the good: the separation of powers, federalism, and the Bill of Rights. He also loves it for its nooks and crannies, idiosyncrasies, …

A Shot In The Dark: Why Virginia Should Adopt The Firing Squad As Its Primary Method Of Execution, P. Thomas Distanislao

University of Richmond Law Review

No abstract provided.

February 4, 2015: The Sanctions Crowd Want War With Iran, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Sanctions Crowd Want War with Iran“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

An Addendum In Light Of Recent Developments, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.

Beyond Edmunds: The State Constitutional Legacy Of Chief Justice Ronald D. Castille, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.

Intelligence Legalism And The National Security Agency’S Civil Liberties Gap, Margo Schlanger

Articles

Since June 2013, we have seen unprecedented security breaches and disclosures relating to American electronic surveillance. The nearly daily drip, and occasional gush, of once-secret policy and operational information makes it possible to analyze and understand National Security Agency activities, including the organizations and processes inside and outside the NSA that are supposed to safeguard American’s civil liberties as the agency goes about its intelligence gathering business. Some have suggested that what we have learned is that the NSA is running wild, lawlessly flouting legal constraints on its behavior. This assessment is unfair. In fact, the picture that emerges from …

The Scope Of Precedent, Randy J. Kozel

Michigan Law Review

The scope of Supreme Court precedent is capacious. Justices of the Court commonly defer to sweeping rationales and elaborate doctrinal frameworks articulated by their predecessors. This practice infuses judicial precedent with the prescriptive power of enacted constitutional and statutory text. The lower federal courts follow suit, regularly abiding by the Supreme Court’s broad pronouncements. These phenomena cannot be explained by—and, indeed, oftentimes subvert—the classic distinction between binding holdings and dispensable dicta. This Article connects the scope of precedent with recurring and foundational debates about the proper ends of judicial interpretation. A precedent’s forward- looking effect should not depend on the …

Deal Leaves Court Issues Unresolved, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals

September 11, 2014: National Motto Fails In Allegheny County, Bruce Ledewitz

Hallowed Secularism

Blog post, “National Motto Fails in Allegheny County“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

July 19, 2014: The Problem With Capitalism, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Problem With Capitalism“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

July 1, 2014: Another Reason To Hate Religion, Bruce Ledewitz

Hallowed Secularism

Blog post, “Another Reason to Hate Religion“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Gideon V. Wainwright--From A 1963 Perspective, Jerold H. Israel

Articles

Gideon v. Wainwright is more than a “landmark” Supreme Court ruling in the field of constitutional criminal procedure. As evidenced by the range of celebrators of Gideon’s Fiftieth Anniversary (extending far beyond the legal academy) and Gideon’s inclusion in the basic coverage of high school government courses, Gideon today is an icon of the American justice system. I have no quarrel with that iconic status, but I certainly did not see any such potential in Gideon when I analyzed the Court’s ruling shortly after it was announced in March of 1963. I had previously agreed to write an article for …