Constitutional Law Commons^™

Originalism Versus Living Constitutionalism: The Conceptual Structure Of The Great Debate, Lawrence B. Solum

Northwestern University Law Review

The great debate between originalism and living constitutionalism ought to focus on the merits, including normative arguments for and against various forms of each theory. Frequently, however, discussion turns to disputes about definitions and concepts. This Essay investigates the conceptual structure of the great debate. It lays out a variety of issues that arise when theorists attempt to define “originalism” and “living constitutionalism” and proposes criteria for settling definitional disputes.

Originalism And A Forgotten Conflict Over Martial Law, Bernadette Meyler

Northwestern University Law Review

This Symposium Essay asks what a largely forgotten conflict over habeas corpus and martial law in mid-eighteenth-century New York can tell us about originalist methods of constitutional interpretation. The episode, which involved Abraham Yates, Jr.—later a prominent Antifederalist—as well as Lord Loudoun, the commander of the British forces in America, and New York Acting Governor James De Lancey, furnishes insights into debates about martial law prior to the Founding and indicates that they may have bearing on originalist interpretations of the Suspension Clause. It also demonstrates how the British imperial context in which the American colonies were situated shaped discussions …

Unifying Original Intent And Original Public Meaning, John O. Mcginnis, Michael B. Rappaport

Northwestern University Law Review

Original intent and original public meaning are generally thought to be opposing camps within originalism. Both theories assert that that the meaning of a constitutional provision was fixed at the time it was enacted. But they disagree fundamentally on the nature of interpretation. Original intent asserts that the meaning sought is that intended by the Constitution’s enactors. Original public meaning asserts that the meaning sought is that revealed by the text as reasonably understood by a well-informed reader at the time of the provision’s enactment.

In this Essay, we unite these two conflicting principles of originalism under the original methods …

Originalism And James Bradley Thayer, Steven G. Calabresi

Northwestern University Law Review

This Essay provides an originalist appraisal of Professor James Bradley Thayer’s famous book on The Origin and Scope of the American Doctrine of Constitutional Law. I critique Professor Thayer’s thesis on multiple levels, pointing out important aspects of the original understanding that the Framers would have had of the meaning and origins of the U.S. Constitution, as well as disputing Professor Thayer’s discussion of the history of American judicial review from 1790 to the publication of his book in 1893. I conclude that no person can be both an originalist and a Thayerian. The two theories contradict one another …

March 31, 2019: When Cynicism Came To The West, Bruce Ledewitz

Hallowed Secularism

Blog post, “When Cynicism Came to the West“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Constitutionality Of Non-Contentious Cases In Japan, Thomas Makoto Naruse

Japanese Society and Culture

In the United States, there was a debate on vesting Article 3 Court extrajudicial authorities, and United States Supreme Court have often denied vesting such authority. In contrast, in Japan, extrajudicial authorities (including those without element of dispute) are vested in courts since the age of Meiji Constitution, and only recently, questions are posed. Today, many scholars are struggling with this issue, and some approaches are shown: one is to conceive the limit of authority which courts can handle according to the distance from properly judicial power, which has dispute as the core element, and the other is to change …

Absolute Freedom Of Mind And Regulating Actions: Tendency Of Case Law In The Supreme Court Of Japan, Hitoshi Miyahara

Japanese Society and Culture

We have absolute protection for our internal beliefs, but this never means the same protection for our external actions. So we have to decide which external actions are permitted, bearing in mind internal protection. Therefore, I introduce some cases of the Supreme Court of Japan (coercing apology, playing the piano accompaniment to Kimigayo, membership fee, Incantation to a mental patient based on religious belief, dissolving the religious corporation, absent from class on fathers’ visiting day and the Kendo lesson) that analyzed the relationship between thoughts and actions.

Lembaga Quasi Non Governmental Organization (Quango) Dalam Sistem Ketatanegaraan Indonesia: Majelis Ulama Indonesia, Ali Abdilah, Rico Novianto

Jurnal Hukum & Pembangunan

Quasi Non-Governmental Organization institution or Quango is not as wellknown as other state institutions in Indonesia. However, it does not mean this institution does not exist in Indonesia. This article discusses the existence of Quango institution in Indonesian state institutions, especially Majelis Ulama Indonesia (MUI). This article explains the definition of Quango and the characteristics of Quango in several countries. Moreover, based on this article, it is believed that MUI can be classified as Quango in Indonesia state Institutions. To attain the expected result, this contribution employs normative legal studies by using some literature regarding Quango and its existence in …

Urgensi Amandemen Uu Tentang Persaingan Usaha Di Indonesia: Problem Dan Tantangan, Kurnia Toha

Jurnal Hukum & Pembangunan

This article discusses about how urgent for the holding of an amendment to the Act No. 5 of 1999 concerning Prohibition of Monopolistic Practices and Unfair Business Competition, known as Competition Law. Since the effective force in 2000, the Business Competition Act has given many benefits to the economic development of Indonesia. However, there are also a lot of criticism both from academics, practitioners and commissioners of the Business Competition Supervisory Commission. This research conducted based on normative or library research using secondary data. In addition, this research was also based on a field research through interviews and focus group …

Tinjauan “Novum” Dalam Peninjauan Kembali Sengketa Tata Usaha Negara, Yoni A. Setyono

Jurnal Hukum & Pembangunan

Novum is one of the reasons for conducting a review. Sometimes in one case, there is an intersection between two courts. In writing, it tries to examine the intersection between Novum in civil cases and cases of state administrative disputes. Which more relevant link point is used regarding the period of time in filing EIA problems in state administrative disputes. Subject to the legal requirements of civil cases (Environmental Law) or in the Administrative Procedure Law. This study begins with a comparison of approaches through proof known in civil cases and in state administrative disputes which are finally sent to …

March 24, 2019: The Two Party Lies That Fuel Political Alienation In America, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Two Party Lies that Fuel Political Alienation in America“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Rules To Impeach By - What It Takes To Remove A President, David Dittfurth

Faculty Articles

Professor David Dittfurth explains the steps that must be taken by Congress to impeach a president or other official.

The Supreme Court Will Preserve The Bladensburg Cross, But It Matters How, Bruce Ledewitz

Ledewitz Papers

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

But, Men And Women Are Equally Compensated, Right? An Examination Of Why An Equal Rights Amendment In New York's Constitution Will End The Wage Gap, Amanda B. Slutsky

Journal of Civil Rights and Economic Development

(Excerpt)

This Note proposes an ERA for New York’s constitution to end the wage gap between men and women, and uses language from H.J. Res 52 and S.B. No. 1919. To demonstrate why New York needs the amendment, this Note will discuss Maryland’s and California’s ERAs and equal pay laws to establish the benefits of an ERA and how both ERAs and equal pay laws, together, help shrink the wage gap in those states. With an ERA, New York’s courts will analyze sex-based discrimination claims with strict scrutiny, which provides heightened protection because women will be considered a suspect class. …

Banning Solitary For Prisoners With Mental Illness: The Blurred Line Between Physical And Psychological Harm, Rosalind Dillon

Northwestern Journal of Law & Social Policy

No abstract provided.

March 17, 2019: The Response To My Anti-Court-Packing Message, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Response to My anti-Court-Packing Message“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Whole Woman’S Health V. Hellerstedt, Kelly Lynn Claxton

Ohio Northern University Law Review

No abstract provided.

Fisher V. University Of Texas At Austin, Christopher M. Calpin

Ohio Northern University Law Review

No abstract provided.

Thornton & The Pursuit Of The American Presidency, Jackson C. Smith J.D., Llm

Ohio Northern University Law Review

No abstract provided.

Merging Offensive-Speech Cases With Viewpoint-Discrimination Principles: The Immediate Impact Of Matal V. Tam On Two Strands Of First Amendment Jurisprudence, Clay Calvert

William & Mary Bill of Rights Journal

This Article examines flaws with the U.S. Supreme Court’s 2017 decision in Matal v. Tam that equated giving offense with viewpoint discrimination. Already, the Court’s language in Tam that “giving offense is a viewpoint” is being cited by multiple lower courts. This Article argues, however, that giving offense is not synonymous with viewpoint discrimination. This Article contends that the Court in Tam conflated two distinct strands of First Amendment jurisprudence—namely, its offensive-speech cases with principles against viewpoint discrimination. The Article proposes two possible paths forward to help courts better clarify when a case such as Tam should be analyzed as …