Legal History Commons^™

Judge Judith Kaye At Skadden, Arps, Barry H. Garfinkel

Brooklyn Law Review

This collection of remarks from scholars, practitioners, and judges serves as a tribute to the life of the beloved and esteemed Judge Kaye and her commitment to the New York State Constitution. The collection culminates with Judge Kaye’s final essay, written for the Brooklyn Law Review, with her reflections on opportunity in life and law and New York’s State Constitution.

The Making Of A Judge's Judge: Judith S. Kaye's 1987 Cardozo Lecture, Henry M. Greenberg

Brooklyn Law Review

This collection of remarks from scholars, practitioners, and judges serves as a tribute to the life of the beloved and esteemed Judge Kaye and her commitment to the New York State Constitution. The collection culminates with Judge Kaye’s final essay, written for the Brooklyn Law Review, with her reflections on opportunity in life and law and New York’s State Constitution.

For Judith S. Kaye, Susan N. Herman

Brooklyn Law Review

This collection of remarks from scholars, practitioners, and judges serves as a tribute to the life of the beloved and esteemed Judge Kaye and her commitment to the New York State Constitution. The collection culminates with Judge Kaye’s final essay, written for the Brooklyn Law Review, with her reflections on opportunity in life and law and New York’s State Constitution.

Reflections On Opportunity In Life And Law, Judith S. Kaye

Brooklyn Law Review

This essay was written by Judge Kaye in the fall of 2015 for the Brooklyn Law Review. She reflects on her life, her time on the bench, and the significance of New York’s Constitutional Convention. Through the lens of dual constitutionalism and her own life story, Judge Kaye opines on the opportunities in life and law that are not to be missed.

A Tribute To Chief Judge Judith S. Kaye, Hon. Janet Difiore

Brooklyn Law Review

This collection of remarks from scholars, practitioners, and judges serves as a tribute to the life of the beloved and esteemed Judge Kaye and her commitment to the New York State Constitution. The collection culminates with Judge Kaye’s final essay, written for the Brooklyn Law Review, with her reflections on opportunity in life and law and New York’s State Constitution.

The Refracted Constitution: Classical Liberalism And The Lessons Of History, 101 Iowa L. Rev. Online 97 (2016), Samuel R. Olken

UIC Law Open Access Faculty Scholarship

As a prism refracts light, bending its rays in different directions and revealing its many colors, the Constitution also refracts the myriad perceptions of its interpreters. The debate published last fall in the Iowa Law Review between Professors Herbert Hovenkamp and Richard Epstein over whether the Constitution is, in the words of Professor Epstein, “a classical liberal document,” reveals divergent perspectives about the role of history in constitutional interpretation. Professor Epstein, who for much of his career has analyzed constitutional issues through the lens of law and economics, is primarily a legal theorist for whom history provides examples of how …

North Carolina State Board Of Dental Examiners V. Ftc: Aligning Antitrust Law With Commerce Clause Jurisprudence Through A Natural Shift Of State-Federal Balance Of Power, Marie Forney

Indiana Law Journal

The Supreme Court’s holding in North Carolina State Board of Dental Examiners v. FTC (NC Dental)1 in February 2015 demonstrates a natural shift in the balance of power from the states to the national government. As the country’s interstate and international economy has become more integrated, federal authority has likewise expanded.2 And although the federalism dichotomy has undergone periodic back-and-forth “swings” since the nation’s founding, the end result has been a net increase in federal power. NC Dental exemplifies this trend toward increasing national au-thority through the organic development of interstate commerce.

Continuity And The Declaration Of Independence, Darrell A. H. Miller

Faculty Scholarship

No abstract provided.

The Declaration Of Independence And Constitutional Interpretation, Alexander Tsesis

Faculty Publications & Other Works

This Article argues that the Reconstruction Amendments incorporated the human dignity values of the Declaration of Independence. The original Constitution contained clauses, which protected the institution of slavery, that were irreconcilable with the normative commitments the nation had undertaken at independence. The Thirteenth, Fourteenth, and Fifteenth Amendments set the country aright by formally incorporating the Declaration of Independence's principles for representative governance into the Constitution.

The Declaration of Independence provides valuable insights into matters of human dignity, privacy, and self-government. Its statements about human rights, equality, and popular sovereignty establish a foundational rule of interpretation. While the Supreme Court has …

Political Dysfunction And The Election Of Donald Trump: Problems Of The U.S. Constitution's Presidency, David Orentlicher

Scholarly Works

In this article, Professor Orentlicher examines the Constitution's design for the executive branch. He argues that by opting for a single executive rather than a multi-person executive, the Constitution causes two serious problems-it fuels the high levels of partisan polarization that we see today, and it increases the likelihood of misguided presidential decision making. Drawing on the experience in other countries with executive power shared by multiple officials, he proposes a bipartisan executive.

The Development Of Chinese Constitutionalism, Chenglin Liu

St. Mary's Law Journal

Since the establishment of the People's Republic of China (PRC) in 1949, the country has enacted four constitutions. This Article provides a historical analysis of how the Communist Party of China (the Party) and its paramount leaders shaped each constitution, influenced the public perception of the law, and determined the method individual constitutional rights should be permitted. Through examining leading incidents that defined the PRC's history, this Article provides a detailed examination of how the Party used a constitutional framework to achieve its specific agenda of the time.

The Political Economy Of "Constitutional Political Economy", Jeremy K. Kessler

Faculty Scholarship

Since the early 1990s, constitutional history has experienced a renaissance. This revival had many causes, but three stand out: the Rehnquist Court's attack on formerly sacrosanct features of the "New Deal agenda"; Reagan-Era reassessments of American political development by political scientists, historians, and historical sociologists; and the frustration of constitutional scholars with the inability of legal process theory or political philosophy to produce "authoritative constitutional principles." Spurred by legal crisis and this mix of disciplinary innovation and stagnation, law professors began to tell new stories about our constitutional heritage. They focused on the sources and significance of the New Deal's …

Debunking Humphrey's Executor, Daniel A. Crane

Articles

The Supreme Court’s 1935 Humphrey’s Executor decision paved the way for the modern administrative state by holding that Congress could constitutionally limit the President’s powers to remove heads of regulatory agencies. The Court articulated a quartet of features of the Federal Trade Commission’s (“FTC”) statutory design that ostensibly justified the Commission’s constitutional independence. It was to be nonpartisan and apolitical, uniquely expert, and performing quasi-legislative and quasi-judicial, rather than executive, functions. In recent years, the staying power of Humphrey’s Executor has been called into question as a matter of constitutional design. This Essay reconsiders Humphrey’s Executor from a different angle. …

Taking Constitutional Identities Away From The Courts, Pietro Faraguna

Brooklyn Journal of International Law

In federal states, constitutional identity is the glue that holds together the Union. On the contrary, in the European Union—not a fully-fledged federation yet—each Member state has its own constitutional identity. On the one hand, the Union may benefit from the particular knowledge, innovation, history, diversity, and culture of its individual states. On the other hand, identity-related claims may have a disintegrating effect. Constitutional diversity needs to come to terms with risks of disintegration. The Treaty on the European Union seeks a balance, providing the obligation to respect the constitutional identities of its Member states. Drawing from the European experience, …

A Tribute To Judge Kaye, Nicholas W. Allard

Brooklyn Law Review

This collection of remarks from scholars, practitioners, and judges serves as a tribute to the life of the beloved and esteemed Judge Kaye and her commitment to the New York State Constitution. The collection culminates with Judge Kaye’s final essay, written for the Brooklyn Law Review, with her reflections on opportunity in life and law and New York’s State Constitution.

Recovering Forgotten Struggles Over The Constitutional Meaning Of Equality, Helen Norton

Publications

No abstract provided.

How Presidents Interpret The Constitution, Harold H. Bruff

Publications

No abstract provided.

The President's Faithful Execution Duty, Harold H. Bruff

Publications

No abstract provided.

Why Foreign Policy Principles Persist: Understanding The Reinterpretations Of Japan’S Article 9 And Switzerland’S Neutrality, Yuki Numata

Pomona Senior Theses

This study examines why Japan and Switzerland have chosen to keep the vocabulary of Article 9 and neutrality, respectively, and to reinterpret their definitions to suit their needs (policy reinterpretation), instead of simply abandoning the original policy and replacing it with a new, more suitably worded policy that clarifies the changing policy position of the government (policy abandonment). By analyzing the legal history of the overseas capabilities of the Japanese Self-Defense Forces and the Swiss Armed Forces, as well as the actions and influences of the government, political parties, and the public, this study finds the following trends. First, the …

Overcoming The Great Forgetting: A Comment On Fishkin And Forbath, Jedediah S. Purdy

Faculty Scholarship

Fishkin and Forbath’s (F&F’s) manuscript is a project of recovery. It portrays the present as a time marked by a “Great Forgetting” of a tradition of constitutional political economy. F&F name what has been forgotten the “democracy of opportunity” tradition. Recovering it would mean again treating the following three principles as linked elements at the core of our Constitution: (1) an anti-oligarchy principle that works to prevent wealth from producing grossly unequal political power; (2) a commitment to a broad middle class with secure, respected work; and (3) a principle of inclusion that opens participation in both citizenship and the …

Vermeule Unbound, Philip A. Hamburger

Faculty Scholarship

My book asks Is Administrative Law Unlawful? Adrian Vermeule answers “No.” In support of his position, he claims that my book does not really make arguments from the U.S. Constitution, that it foolishly denounces administrative power for lacking legislative authorization, that it grossly misunderstands this power and the underlying judicial doctrines, and ultimately that I argue “like a child.”

My book actually presents a new conception of administrative power, its history, and its unconstitutionality; as Vermeule has noted elsewhere, it offers a new paradigm. Readers therefore should take seriously the arguments against the book. They also, however, should recognize that …

The Early Years Of First Amendment Lochnerism, Jeremy K. Kessler

Faculty Scholarship

From Citizens United to Hobby Lobby, civil libertarian challenges to the regulation of economic activity are increasingly prevalent. Critics of this trend invoke the specter of Lochner v. New York. They suggest that the First Amendment, the Religious Freedom Restoration Act, and other legislative "conscience clauses" are being used to resurrect the economically libertarian substantive due process jurisprudence of the early twentieth century. Yet the worry that aggressive judicial enforcement of the First Amendment might erode democratic regulation of the economy and enhance the economic power of private actors has a long history. As this Article demonstrates, anxieties …

Inherent National Sovereignty Constitutionalism: An Original Understanding Of The U.S. Constitution, Robert J. Kaczorowski

Faculty Scholarship

No abstract provided.

Privacy, Police Power, And The Growth Of Public Power In The Early Twentieth Century: A Not So Unlikely Coexistence, Carol Nackenoff

Maryland Law Review

No abstract provided.

Threshold Liberty, Dawinder S. Sidhu

Cardozo Law Review

The Supreme Court's Thirteenth Amendment precedent is no longer sustainable. For starters, that precedent - which holds that the Amendment prohibits the "badges and incidents" of slavery, and that Congress has the power to "rationally" determine what constitutes a "badge or incident" of slavery - raises serious federalism and separation of powers concerns. To make matters worse, the Court itself has recently restricted the enforcement provisions of the Fourteenth Amendment (in City of Boerne v. Flores) and Fifteenth Amendment (in Shelby County v. Holder), rendering the generous bounds of the Thirteenth Amendment enforcement power an outlier among the …

When Congress Is Away The President Shall Not Play: Justice Scalia's Concurrence In Nlrb V. Noel Canning, Krista M. Pikus

Michigan Law Review First Impressions

On June 26, 2014, the Supreme Court unanimously decided NLRB v. Noel Canning, holding that the Recess Appointments Clause authorizes the president “to fill any existing vacancy during any recess . . . of sufficient length.” Justice Scalia filed a concurring opinion, joined by Chief Justice Roberts, Justice Thomas, and Justice Alito. While Justice Scalia “concurred,” his opinion read more like a dissent. Both the majority and the concurring opinions relied heavily on historical evidence in arriving at their respective opinions. This was expected from Justice Scalia given his method of “new originalism,” which focuses on “the original public …

Canadian Constitutional Identities, Eric M. Adams

Dalhousie Law Journal

Constitutions are stories nations tell about themselves. Despite the famous declaration in the Constitution Act, 1867 that the "Provinces ofCanada...Desire...a Constitution similar in Principle to that of the United Kingdom," most of Canada's constitutional history can be understood as the search for a distinctly Canadian constitutional identity Canadians have always looked to their constitutional instruments to both reflect and produce a particular vision of the nation and its citizens. This article focuses on the search for Canada s constitutional identity during its first century as a nation, from Confederation until the 1960s. Drawing on a varied array of sources and …

The Fallacy Of Judicial Supermajority Clauses In State Constitutions, Sandra B. Zellmer, Kathleen Miller

Faculty Law Review Articles

No abstract provided.

Public Danger, James Dawson

Cardozo Law Review

This Article provides the first account of the term "public danger," which appears in the Grand Jury Clause of the Fifth Amendment. Drawing on historical records from the seventeenth and eighteenth centuries, the Article argues that the proper reading of "public danger" is a broad one. On this theory, "public danger" includes not just impending enemy invasions, but also a host of less serious threats (such as plagues, financial panics, jailbreaks, and natural disasters). This broad reading is supported by constitutional history. In 1789, the first Congress rejected a proposal that would have replaced the phrase "public danger" in the …

The Suez Crisis Of 1956 And Its Aftermath: A Comparative Study Of Constitutions, Use Of Force, Diplomacy And International Relations, Pnina Lahav

Faculty Scholarship

This article compares and juxtaposes constitutional war powers (deployed by the belligerents) and diplomacy (deployed by the US) as means of pursuing foreign policy during the 1956 Suez crisis.

In the fall of 1956 the United Kingdom, France and Israel launched a war against Egypt. It soon became clear that this was a coordinated effort. The war started a few days before the US presidential elections but the parties did not share their plans with President Eisenhower. The Hungarian rebellion and the Soviet invasion of Hungary occurred at the same time. Within weeks, the United States, in cooperation with the …