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2014

Constitutional Law

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Articles 1 - 30 of 41

Full-Text Articles in Political Science

Equitable Sharing: Distributing The Benefits And Detriments Of Democratic Society, Thomas Kleven Jul 2015

Equitable Sharing: Distributing The Benefits And Detriments Of Democratic Society, Thomas Kleven

Thomas Kleven

The book argues that a principle of equitable sharing is fundamental to the concept of democracy and to the democratic society the United States purports to be. It examines the political philosophies of John Locke, John Stuart Mill, and John Rawls, all of which contain a principle of equitable sharing in some form. It then examines the Declaration of Independence and the Constitution, both of which evidence a commitment to equitable sharing as foundational to the democratic society they contemplate. The book argues that the Supreme Court also has a meaningful role to play in the dialogue over the requirements ...


"…Chosen By The People Of The Several States…": Statehood For The District Of Columbia, Larry Mirel, Joe Sternlieb Oct 2014

"…Chosen By The People Of The Several States…": Statehood For The District Of Columbia, Larry Mirel, Joe Sternlieb

William & Mary Bill of Rights Journal

No abstract provided.


The Right To Vote: Is The Amendment Game Worth The Candle?, Heather K. Gerken Oct 2014

The Right To Vote: Is The Amendment Game Worth The Candle?, Heather K. Gerken

William & Mary Bill of Rights Journal

No abstract provided.


Three Questions For The "Right To Vote" Amendment, Richard Briffault Oct 2014

Three Questions For The "Right To Vote" Amendment, Richard Briffault

William & Mary Bill of Rights Journal

No abstract provided.


Democratic Capital: A Voting Rights Surge In Washington Could Strengthen The Constitution For Everyone, Jamin Raskin Oct 2014

Democratic Capital: A Voting Rights Surge In Washington Could Strengthen The Constitution For Everyone, Jamin Raskin

William & Mary Bill of Rights Journal

No abstract provided.


Theories Of Representation: For The District Of Columbia, Only Statehood Will Do, Mary M. Cheh Oct 2014

Theories Of Representation: For The District Of Columbia, Only Statehood Will Do, Mary M. Cheh

William & Mary Bill of Rights Journal

No abstract provided.


Welcome To New Columbia: The Fiscal, Economic And Political Consequences Of Statehood For D.C., David Schleicher Oct 2014

Welcome To New Columbia: The Fiscal, Economic And Political Consequences Of Statehood For D.C., David Schleicher

William & Mary Bill of Rights Journal

No abstract provided.


El Futuro Del Tribunal De Aforados, Javier Revelo-Rebolledo Oct 2014

El Futuro Del Tribunal De Aforados, Javier Revelo-Rebolledo

Javier E Revelo-Rebolledo

No abstract provided.


Congress's Treaty-Implementing Power In Historical Practice, Jean Galbraith Oct 2014

Congress's Treaty-Implementing Power In Historical Practice, Jean Galbraith

William & Mary Law Review

Historical practice strongly influences constitutional interpretation in foreign relations law, including most questions relating to the treaty power. Yet it is strikingly absent from the present debate over whether Congress can pass legislation implementing U.S. treaties under the Necessary and Proper Clause. Drawing on previously unexplored sources, this Article considers the historical roots of Congress’s power to implement U.S. treaties between the Founding Era and the seminal case of Missouri v. Holland in 1920. It shows that time after time, members of Congress understood the Necessary and Proper Clause to provide a constitutional basis for a congressional ...


La Reforma Político-Judicial De Santos, Javier Revelo-Rebolledo Jul 2014

La Reforma Político-Judicial De Santos, Javier Revelo-Rebolledo

Javier E Revelo-Rebolledo

No abstract provided.


Good Enough For Government Work: Two Cheers For Content Neutrality, Seth F. Kreimer Jul 2014

Good Enough For Government Work: Two Cheers For Content Neutrality, Seth F. Kreimer

Faculty Scholarship at Penn Law

When then-Professor Elena Kagan emerged on the public stage in the mid-1990s, she declared “the distinction between content-based and content-neutral regulations of speech serves as the keystone of First Amendment law.” In the last decade and a half, commentators and Supreme Court opinions regularly echoed that declaration. Yet the First Amendment does not mention “content neutrality.” It is an artifact of modern constitutional doctrine–a doctrine subject to a sustained barrage of judicial and academic criticism.

Most scholarly critiques of content neutrality focus on First Amendment theory and Supreme Court opinions. After surveying these critiques, along with the incomplete defenses ...


The Visible Effects Of An Invisible Constitution: The Contested State Of Transdniestria's Search For Recognition Through International Negotiations, Nadejda Mazur Jul 2014

The Visible Effects Of An Invisible Constitution: The Contested State Of Transdniestria's Search For Recognition Through International Negotiations, Nadejda Mazur

Theses and Dissertations

Most scholars agree that modern states share several defining characteristics: a population, territory, government, and the capacity to enter into international relations. More recently, this list has expanded to include the criteria of democracy, the rule of law, and the protection of human rights. These traditional and contemporary criteria for statehood are likewise essential for settling the status of de facto states, entities that seek international recognition yet are rebuffed by the world community.

By examining the criteria for international recognition from the perspective of constitutional law, this dissertation reveals the existing but overlooked relationship between the recognition process and ...


Letter To Editor Indiana Magazine Of History, Bert Chapman Jun 2014

Letter To Editor Indiana Magazine Of History, Bert Chapman

Libraries Faculty and Staff Scholarship and Research

Letter responding to comparison of Guantanamo bay terrorist detainees with the noted Indiana Civil War case of Lambdin Milligan, ultimately decided by the U.S. Supreme Court, who was detained by Union military authorities during the Civil War for his pro-confederate activities and tried by a military court.


American Constitutional Conventions: The Judicially Unenforceable Rules That Combine With Judicial Doctrine And Public Opinion To Regulate Political Behavior, James G. Wilson May 2014

American Constitutional Conventions: The Judicially Unenforceable Rules That Combine With Judicial Doctrine And Public Opinion To Regulate Political Behavior, James G. Wilson

James G. Wilson

The concept of nonjusticiability, reflected primarily through the “political question” and the “standing” doctrines, fails to give the Supreme Court (and the rest of us) adequate guidance on how to resolve many constitutional disputes, such as impeachment procedures and standards, congressional expulsions, the scope of federal court jurisdiction, and the use of force abroad. These two doctrines put the Supreme Court on the horns of a false dichotomy. The Court tends to withdraw completely from an issue and from enforcing a textual passage, such as the Republican Guarantee Clause, whenever it makes a determination of nonjusticiability. Conversely, once the Court ...


The Extension Of The Sixth Amendment Right To Effective Assistance Of Counsel, David Fountain Apr 2014

The Extension Of The Sixth Amendment Right To Effective Assistance Of Counsel, David Fountain

Symposium on Undergraduate Research and Creative Expression

The Sixth Amendment guarantees the right of a defendant to be represented by counsel, most importantly to have effective assistance of counsel. Evolving for nearly a century, the current state of the Sixth Amendment is a result of a historic and longstanding relationship that the Court has maintained with the Sixth Amendment resembling a tug-of-war of sorts, a back and forth that is arguably still going strong. Throughout this history the Court has refined what rights the Sixth Amendment entails as well as to what extent these rights should be provided. In accordance with Argersinger v. Hamlin, regarding the deprivation ...


America's Forgotten Constitutions: Defiant Visions Of Power And Community, Robert Tsai Mar 2014

America's Forgotten Constitutions: Defiant Visions Of Power And Community, Robert Tsai

Robert L Tsai

The U.S. Constitution opens by proclaiming the sovereignty of all citizens: "We the People." Robert Tsai's gripping history of alternative constitutions invites readers into the circle of those who have rejected this ringing assertion--the defiant groups that refused to accept the Constitution's definition of who "the people" are and how their authority should be exercised. America's Forgotten Constitutions is the story of America as told by dissenters: squatters, Native Americans, abolitionists, socialists, internationalists, and racial nationalists. Beginning in the nineteenth century, Tsai chronicles eight episodes in which discontented citizens took the extraordinary step of drafting a ...


In Search Of Justice: An Examination Of The Appointments Of John G. Roberts And Samuel A. Alito To The U.S. Supreme Court And Their Impact On American Jurisprudence, Alberto R. Gonzales Mar 2014

In Search Of Justice: An Examination Of The Appointments Of John G. Roberts And Samuel A. Alito To The U.S. Supreme Court And Their Impact On American Jurisprudence, Alberto R. Gonzales

William & Mary Bill of Rights Journal

During 2005, President George W. Bush appointed Federal Circuit Court Judges John G. Roberts and Samuel A. Alito to the U.S. Supreme Court. These appointments were the culmination of years of examination of the work, character, and temperament of both men commencing during the 2000 presidential transition. Our evaluation included face-to-face interviews; an analysis of judicial opinions, speeches, and writings; and conversation with friends, colleagues, and court experts. Based on this work, a select group of Bush Administration officials developed a set of predictors that formed the basis of our recommendation to President Bush that he elevate Circuit Court ...


The Paradoxes Of National Self-Determination, Brian Slattery Feb 2014

The Paradoxes Of National Self-Determination, Brian Slattery

Brian Slattery

Some have argued that the right of national self-determination gives every national group the power to decide for itself whether to remain part of an existing state or to secede unilaterally and form its own state. Such a theory underpins the claim that Quebec is entitled to decide on its own whether or not to leave Canada. This paper examines the main philosophical arguments for the theory and finds them one-dimensional and inadequate; they fail to take account of the full range of complex issues arising in actual cases of proposed secession. If the right of national self-determination is understood ...


"Authoritarian Constitution Making: The Role Of The Military In Latin America", Gabriel L. Negretto Feb 2014

"Authoritarian Constitution Making: The Role Of The Military In Latin America", Gabriel L. Negretto

Gabriel L. Negretto

During the twentieth century, military dictatorships produced the largest number of authoritarian constitutions in Latin America. Why would military rulers invest time and resources in drafting constitutions? I argue that military leaders engage in constitution making to introduce more effective transformations of the political order during their rule and to have influence over the functioning of democracy after leaving power. However, in order to achieve all these goals, military dictators must be able to mobilize popular and partisan support for the authoritarian regime. Since this condition is rarely met, military rulers often fail in their constitution making strategy. I provide ...


Citizens United, States Divided: An Empirical Analysis Of Independent Political Spending, Douglas Spencer, Abby Wood Jan 2014

Citizens United, States Divided: An Empirical Analysis Of Independent Political Spending, Douglas Spencer, Abby Wood

Douglas M. Spencer

What effect has Citizens United v. FEC had on independent spending in American politics? Previous attempts to answer this question have focused solely on federal elections where there is no baseline for comparing changes in spending behavior. We overcome this limitation by examining the effects of Citizens United as a natural experiment on the states. Before Citizens United about half of the states banned corporate independent expenditures and thus were “treated” by the Supreme Court’s decision, which invalidated these state laws. We rely on recently released state-level data to compare spending in “treated” states to spending in the “control ...


Public Reason As Higher Law, Gordon D. Ballingrud Jan 2014

Public Reason As Higher Law, Gordon D. Ballingrud

Gordon D Ballingrud

This paper presents a model of higher-law formation by employing a modified version of John Rawls’ idea of public reason. The model specifies a theory of public reason that combines the procedural and substantive aspects of public reason, and extends the concept over a third dimension, time. This concept, by virtue of its multi-generational democratic pedigree, forms a repository of political and legal concepts of justice that conform to the duty of civility, and the broad consensus on political and legal norms required of the content of public reason, which forms the overlapping consensus. Thus, public reason as higher law ...


We The Peoples: The Global Origins Of Constitutional Preambles, Tom Ginsburg, Daniel Rockmore, Nick Foti Jan 2014

We The Peoples: The Global Origins Of Constitutional Preambles, Tom Ginsburg, Daniel Rockmore, Nick Foti

Tom Ginsburg

We like to think that constitutions are expressions of distinctly national values, speaking for “We the People.” This is especially true of constitutional preambles, which often recount distinct events from national history and speak to national values. This article challenges this popular view by demonstrating the global influences on constitutional preambles. It does so using a new set of tools in linguistic and textual analysis, applied to a database of most constitutional preambles written since 1789. Arguing that legal language can be analogized to memes or genetic material, we analyze “horizontal” transfer of language across countries and “vertical” transfers within ...


Supermayorías A Nivel Legislativo. Los Problemas Del Debate Y Una Propuesta Metodológica, Sergio Verdugo Sverdugor@Udd.Cl Jan 2014

Supermayorías A Nivel Legislativo. Los Problemas Del Debate Y Una Propuesta Metodológica, Sergio Verdugo Sverdugor@Udd.Cl

Sergio Verdugo R.

Se analiza el debate institucional relativo a si deben o no permanecer los quórums legislativos súper-mayoritarios (esto es, aquellos mayores a la mayoría simple) en la Constitución. El autor critica la manera en que la discusión ha tenido lugar desde la perspectiva académica. Luego, revisa los alcances y límites de los argumentos favorables a las supermayorías, defendiendo la idea de que ellas pueden servir de forma instrumental algunos fines legítimos que son compatibles con la democracia. Las implicancias de este trabajo alcanzan a algunas leyes orgánicas constitucionales y, también, a las leyes de quórum calificado, a las que se les ...


In The Debt We Trust: The Unconstitutionality Of Defaulting On American Financial Obligations, And The Political Implications Of Their Perpetual Validity, Zachary K. Ostro Jan 2014

In The Debt We Trust: The Unconstitutionality Of Defaulting On American Financial Obligations, And The Political Implications Of Their Perpetual Validity, Zachary K. Ostro

Student Articles and Papers

Starting in August 2011, America has undergone a series of fiscal and political crises surrounding the threat of defaulting on the national debt and the need to raise the debt ceiling. These crises have caused tremendous stress and irreparable harm to our financial markets and political system, causing a downgrade in United States debt for the first time in history, forcing drastic budget cuts, and contributing to a sixteen-day government shutdown this past October. What is most unfortunate, however, is that all of this was preventable for the simple reason that, as a matter of constitutional law, defaulting on the ...


Public Assistance, Drug Testing, And The Law: The Limits Of Population-Based Legal Analysis, Candice T. Player Jan 2014

Public Assistance, Drug Testing, And The Law: The Limits Of Population-Based Legal Analysis, Candice T. Player

Faculty Scholarship at Penn Law

In Populations, Public Health and the Law, legal scholar Wendy Parmet urges courts to embrace population-based legal analysis, a public health inspired approach to legal reasoning. Parmet contends that population-based legal analysis offers a way to analyze legal issues—not unlike law and economics—as well as a set of values from which to critique contemporary legal discourse. Population-based analysis has been warmly embraced by the health law community as a bold new way of analyzing legal issues. Still, population-based analysis is not without its problems. At times, Parmet claims too much territory for the population perspective. Moreover, Parmet urges ...


The Divergence Of Modern Jurisprudence From The Original Intent For Federalist And Tenth Amendment Limitations On The Treaty Power, Steven T. Voigt Jan 2014

The Divergence Of Modern Jurisprudence From The Original Intent For Federalist And Tenth Amendment Limitations On The Treaty Power, Steven T. Voigt

The University of New Hampshire Law Review

[Excerpt] “That the federal treaty-making authority is constrained by the other parts of the Constitution does not sound like the stuff of law journals. It seems like common sense. After all, we would not expect someone to argue that the ability to “regulate Commerce” entitles Congress to disregard the Third Amendment and quarter soldiers in our houses. We would not expect to see an argument that the power to “establish Post Offices” enables Congress to disregard the freedom of the press in the First Amendment. So, why is the Tenth Amendment so fully disregarded with respect to treaties?”


Introduction To The Workplace Constitution From The New Deal To The New Right, Sophia Z. Lee Jan 2014

Introduction To The Workplace Constitution From The New Deal To The New Right, Sophia Z. Lee

Faculty Scholarship at Penn Law

Today, most American workers do not have constitutional rights on the job. As The Workplace Constitution shows, this outcome was far from inevitable. Instead, American workers have a long history of fighting for such rights. Beginning in the 1930s, civil rights advocates sought constitutional protections against racial discrimination by employers and unions. At the same time, a conservative right-to-work movement argued that the Constitution protected workers from having to join or support unions. Those two movements, with their shared aim of extending constitutional protections to American workers, were a potentially powerful combination. But they sought to use those protections to ...


The “Reasonableness” Of Poverty: Progress And Pitfalls In South Africa’S Socio-Economic Jurisprudence, Benajmin Oliver Powers Jan 2014

The “Reasonableness” Of Poverty: Progress And Pitfalls In South Africa’S Socio-Economic Jurisprudence, Benajmin Oliver Powers

Senior Projects Spring 2014

The Constitutional Court of South Africa is perhaps the strongest institution in the country today. It is one of the few places for people to pursue institutional redress. In light of this, this thesis critically examines the reasonableness standard, the depoliticizing rhetoric around poverty the Court uses, as well as the practical obstacles for individuals or groups pursuing public interest litigation through the judiciary. It has found that for the Court to be more effective institution in light of the failings of other bodies conceived of by the Constitution, a number of the Court’s approaches must be altered slightly ...


Treaty Termination As Foreign Affairs Exceptionalism, Jean Galbraith Jan 2014

Treaty Termination As Foreign Affairs Exceptionalism, Jean Galbraith

Faculty Scholarship at Penn Law

No abstract provided.


Review Of Federal Dynamics: Continuity, Change, And The Varieties Of Federalism, Arthur Benz And Jorg Broscheck, Eds. (2013), James A. Gardner Jan 2014

Review Of Federal Dynamics: Continuity, Change, And The Varieties Of Federalism, Arthur Benz And Jorg Broscheck, Eds. (2013), James A. Gardner

Book Reviews

No abstract provided.