dunnettreader + constitutional_law   30

Michael Kang - Gerrymandering and the Constitutional Norm Against Government Partisanship (2017) :: SSRN
Win election law prize - Michigan Law Review, Vol. 116, No. 3, Dec. 2017, Forthcoming- Emory Legal Studies Research Paper
71 Pages
Posted: 17 Aug 2017; Last revised: 28 Oct 2017
Michael S. Kang, Emory University School of Law
The Article challenges the basic premise in the law of partisan gerrymandering that government partisan purpose is constitutional at all. The central problem, Justice Scalia once explained in Vieth v. Jubelirer, is that partisan gerrymandering becomes unconstitutional only when it “has gone too far,” giving rise to the intractable inquiry into “how much is too much.” But the premise that partisanship is an ordinary and lawful purpose, articulated as settled law and widely understood as such, is largely wrong as constitutional doctrine. The Article surveys constitutional law to demonstrate the vitality of an important, if implicit norm against government partisanship across a variety of settings. From political patronage, to government speech, to election administration and even in redistricting itself, Vieth is the exception in failing to bar tribal partisanship as a legitimate state interest in lawmaking. The puzzle therefore is why the Supreme Court in Vieth diverged from this overarching norm for legislative redistricting where the need for government nonpartisanship is most acute and so rarely met. The Article proposes a purpose-focused approach that identifies partisanship as an illegitimate basis for lawmaking and requires the government to justify its redistricting with reference to legitimate state interests beyond partisanship, irrespective of extreme partisan effects. The importance of consolidating and reifying the norm against government partisanship, in its most salient legal context, cannot be overstated at a time when hyperpolarization between the major parties dominates national politics and is at its most severe in our lifetime.
Keywords: gerrymandering, redistricting, Whitford v. Gill, partisanship, parties, Bandemer
constitutional_law  political_participation  Evernote  gerrymandering  public_interest  SSRN  accountability  partisanship  liberalism-public_reason  democracy  article  downloaded  US_constitution  corruption  legitimacy  SCOTUS  elections 
november 2017 by dunnettreader
Jack Balkin - Protestant Constitutionalism: A Series of Footnotes to Sanford Levinson | Balkinization: - September 2010
little essay written in honor of my dear friend Sandy Levinson, on the occasion of the Lifetime Achievement Award he received from the Law and Courts section at the American Political Science Association convention -- One of Sandy's most fruitful ideas is constitutional protestantism, the idea that each citizen has the right to decide for him or herself what the Constitution means. Sandy stated this idea prominently in an article in the Tulane Law Review in 1987, noting the importance of Attorney General Edwin Meese's arguments that the decisions of the Supreme Court bind only the parties before the court. -- The idea is developed more fully in Sandy's great 1988 book, Constitutional Faith, in which he distinguishes between constitutional protestantism and constitutional catholicism. Constitutional catholicism stands for the view that a certain group of professional or learned authorities has the last word on interpretation, while protestantism, as we have seen, invites all believers to offer their views on the meaning of scripture. Sandy gives both positions their due, but he is essentially a constitutional protestant. -- Protestant constitutionalism leads almost inevitably to the study of social organization and culture. Once you acknowledge that many individuals have different views about the Constitution, you must also acknowledge that these individuals, like good protestants, do not simply keep to themselves. They create congregations. They form groups of like-minded believers and go out into the world and try to convert others. Thus, a focus on protestant constitutionalism leads naturally to a focus on social movements and political parties as engines of constitutional change. -- downloaded page as pdf to Note
US_constitution  US_politics  political_culture  legal_culture  legal_history  legal_reasoning  change-social  change-intellectual  constitutional_law  constitutional_regime  social_movements  Protestants  schisms  sola_scriptura  downloaded 
january 2016 by dunnettreader
Josh Chafetz - Democracy’s Privileged Few: Legislative Privilege and Democratic Norms in the British and American Constitutions | Yale University Press - 2011
This book is the first to compare the freedoms and protections of members of the United States Congress with those of Britain’s Parliament. Placing legislative privilege in historical context, Josh Chafetz explores how and why legislators in Britain and America have been granted special privileges in five areas: jurisdictional conflicts between the courts and the legislative houses, freedom of speech, freedom from civil arrest, contested elections, and the disciplinary powers of the houses. Legislative privilege is a crucial component of the relationship between a representative body and the other participants in government, including the people. In recounting and analyzing the remarkable story of how parliamentary government emerged and evolved in Britain and how it crossed the Atlantic, Chafetz illuminates a variety of important constitutional issues, including the separation of powers, the nature of representation, and the difference between written and unwritten constitutionalism. This book will inspire in readers a much greater appreciation for the rise and triumph of democracy. -- see kindle sample
books  kindle-available  political_history  17thC  18thC  19thC  20thC  21stC  constitutions  constitutional_law  constitutional_regime  democracy  checks-and-balances  separation-of-powers  representative_institutions  political_participation  UK_Government  British_history  British_politics  British_Empire-constitutional_structure  American_colonies  US_constitution  Congress  Parliament  Parliamentary_supremacy  House_of_Commons  House_of_Lords  House_of_Representatives  constituencies  judiciary  judicial_review  exec_branch  monarchy  monarchical_republic  MPs  legal_history  legal_theory  legal_culture  legitimacy  Founders  Madison  Blackstone  Mill  prerogative  bill_of_rights  bills_of_attainder  elections-disputed  Bolingbroke 
august 2015 by dunnettreader
Giuseppe Guarino - response to James K. Galbraith re the "Maastricht coup" thesis - The Future of Europe | The American Prospect - August 2015
Professor Giuseppe Guarino, dean of constitutional scholars and the author of a striking small book (called The Truth about Europe and the Euro: An Essay, available here) on the European treaties and the Euro. Professor Guarino's thesis is the following: “On 1st January 1999 a coup d'état was carried out against the EU member states, their citizens, and the European Union itself. The 'coup' was not exercised by force but by cunning fraud... by means of Regulation 1466/97... The role assigned to the growth objective by the Treaty (Articles 102A, 103 and 104c), to be obtained by the political activity of the member states... is eliminated and replaced by an outcome, namely budgetary balance in the medium term.” -- downloaded pdf from Guarino's site to Note
EU-constitution  EU_governance  elections  political_participation  sovereignty  austerity  democracy  sovereign_debt  subsidiarity  budget_deficit  Maastricht  constitutional_law  representative_institutions  democracy_deficit  Europe-federalism  legitimacy  Germany-Eurozone  downloaded  European_integration 
august 2015 by dunnettreader
Leo E. Strine , Nicholas Walter Originalist or Original: The Difficulties of Reconciling "Citizens United" with Corporate Law History :: SSRN - Notre Dame Law Review, 2015, Forthcoming (rev'd March 2015)
Leo E. Strine Jr., Supreme Court of Delaware; Harvard Law School; Penn Law School -- Nicholas Walter, Wachtell, Lipton, Rosen & Katz -- Citizens United has been the subject of a great deal of commentary, but one important aspect of the decision that has not been explored in detail is the historical basis for Justice Scalia’s claims in his concurring opinion that the majority holding is consistent with originalism. In this article, we engage in a deep inquiry into the historical understanding of the rights of the business corporation as of 1791 and 1868 — two periods relevant to an originalist analysis of the First Amendment. Based on the historical record, Citizens United is far more original than originalist, and if the decision is to be justified, it has to be on jurisprudential grounds originalists traditionally disclaim as illegitimate. -- PDF File: 94 -- Keywords: Jurisprudence, constitutional interpretation, original intent, original understanding, originalism, election law, campaign finance reform, corporate personhood, general corporation statutes, political speech, First National Bank of Boston v. Bellotti, Santa Clara County v. Southern Pacific Railroad -- downloaded pdf to Note
article  SSRN  corporate_law  corporate_citizenship  US_constitution  constitutional_law  originalism  free_speech  civil_liberties  legal_history  legal_theory  legal_reasoning  elections  campaign_finance  politics-and-money  downloaded 
july 2015 by dunnettreader
Lyman Johnson, David Millon - Corporate Law after Hobby Lobby :: SSRN (rev'd Jan 2015) THE BUSINESS LAWYER, Vol 70 - November 2014
Lyman Johnson, Washington and Lee University - School of Law; University of St. Thomas, St. Paul/Minneapolis, MN - School of Law -- David Millon
Washington and Lee University - School of Law -- We evaluate the U.S. Supreme Court's controversial decision in the Hobby Lobby case from the perspective of state corporate law. We argue that the Court is correct in holding that corporate law does not mandate that business corporations limit themselves to pursuit of profit. Rather, state law allows incorporation 'for any lawful purpose.' We elaborate on this important point and also explain what it means for a corporation to 'exercise religion.' In addition, we address the larger implications of the Court's analysis for an accurate understanding both of state law's essentially agnostic stance on the question of corporate purpose and also of the broad scope of managerial discretion. -- PDF File: 33 -- Keywords: Corporate purpose, Corporate personhood, Shareholder wealth maximization, Shareholder primacy, Corporate social responsibility -- downloaded pdf to Note
article  SSRN  corporate_law  corporate_citizenship  corporate_governance  shareholders  freedom_of_conscience  SCOTUS  civil_liberties  corporate_control  corporate_personhood  limited_liability  corporations-closely-held  corporations  CSR  shareholder_value  shareholder_voting  profit_maximization  law-and-economics  labor_law  employee_benefits  power-asymmetric  capital_as_power  constitutional_law  downloaded 
july 2015 by dunnettreader
Originalism's Promise, and Its Limits by Lee J. Strang :: SSRN - 63 Cleveland State Law Review 81 (2014) (rev' June 2015)
University of Toledo College of Law -- In this Symposium Essay, I summarize originalism’s promise and limits. Part II succinctly explains originalism’s promise. Part III briefly describes originalism’s limits. Part IV then suggests that originalism’s limits contribute to its promise. -- PDF File: 20 -- Keywords: constitutional interpretation, originalism, nonoriginalism, normatively attractive, judicial capacity, Aristotle, St. Thomas Aquinas -- saved to briefcase
article  SSRN  US_constitution  constitutional_law  originalism  Aristotle  Aquinas  hermeneutics  judiciary  judicial_review  natural_law 
july 2015 by dunnettreader
Lawrence B. Solum - Originalism and Constitutional Construction by :: SSRN - 82 Fordham L. Rev. 453 (2013)
Georgetown University Law Center -- Constitutional interpretation is the activity that discovers the communicative content or linguistic meaning of the constitutional text. Constitutional construction is the activity that determines the legal effect given the text, including doctrines of constitutional law and decisions of constitutional cases or issues by judges and other officials. The interpretation-construction distinction, frequently invoked by contemporary constitutional theorists and rooted in American legal theory in the nineteenth and twentieth centuries, marks the difference between these two activities. (..) Part I of this Article situates the idea of constitutional construction in the context of contemporary debates about originalism and among originalists. Part II argues that the interpretation-construction distinction provides conceptual clarity and answers a variety of objections to the distinction itself and the use of the terms “interpretation” and “construction” to express the distinction. Part III advances the claim that construction is ubiquitous; Part IV makes the case for the ineliminability of the construction zone. Part V discusses the relationship between constitutional construction and debates about originalism and living constitutionalism. A conclusion follows. -- PDF File: 85 -- Keywords: constitution, interpretation, construction, interpretation-construction distinction, vagueness, ambiguity, original methods, deference, constraint -- saved to briefcase
article  SSRN  constitutional_law  US_constitution  legal_theory  legal_reasoning  originalism 
july 2015 by dunnettreader
Jack M. Balkin -The Last Days of Disco: Why the American Political System is Dysfunctional :: SSRN - Boston University Law Review, Vol. 94, 2014
...what looks like constitutional dysfunction is actually constitutional transition, (..)Americans last experienced this sense of dysfunction during the late 1970s and early 1980s (..) the transition to a new constitutional regime will be far more difficult than those effected in 1932 and 1980. (1) the growth of the modern state and changes in the role of the presidency mean that even the most politically adept and fortunate presidents face greater obstacles to implementing transformative change than they once did; they are less able than past reconstructive leaders to disrupt existing institutions and clear the ground for a new politics. This, by itself, does not prevent the emergence of a new constitutional regime. But (2) the current transition will be especially difficult because we are near the peak of a long cycle of increasing polarization between the nation’s two major political parties. That polarization greatly raises the stakes of a transition to a new constitutional regime. The defenders of the old order have every incentive to resist the emergence of a new regime until the bitter end. A long and frustrating transition will have important side effects. (1) a dysfunctional Congress tempts the Executive to act unilaterally, (..). Future presidents may use these new sources of power even when the period of dysfunction has passed. (2) sustained political dysfunction also tends to empower the judiciary vis-à-vis Congress. Moreover, judges appointed by the older dominant party, late in the regime, are less likely to engage in judicial restraint and more likely to push the jurisprudential envelope. This helps explain some of the Roberts Court's recent work. -- PDF File: 40 -- downloaded pdf to Note
article  SSRN  US_politics  US_constitution  SCOTUS  exec_branch  US_President  Congress  US_judiciary  separation-of-powers  faction  GOP  Democrats  legal_history  political_change  political_culture  legal_culture  originalism  change-social  power-asymmetric  ideology  conflict  competition-political  constitutional_law  constitutional_regime  government-forms  government-roles  polarization  policymaking  political_gridlock  limited_government  judicial_review  conservatism  right-wing  political_participation  rule_of_law  instrumentalist  means-justify-ends  legitimacy  downloaded 
july 2015 by dunnettreader
Jack Balkin - Fragile Democracies: An Interview with Sam Issacharoff | Balkinization - June 2015
A bunch of great Qs from HB -- I recently spoke with Sam Issacharoff (NYU Law School) about his new book, Fragile Democracies: Contested Power in the Era of Constitutional Courts (CUP). -- JB: You are one of the foremost experts on American election law. How did you get interested in the constitutional problems of emerging democracies? JB: A key claim of the book is that courts can play an important role in keeping emerging democracies from backsliding into authoritarianism and dictatorship. Why are courts able to do this? -- JB: Critics of judicial review have long argued that it is inconsistent with democracy, and actually undermines it in the long run. How does your argument engage with those critics? SI: We have long debated the issue of judicial review and the countermajoritarian difficulty in the U.S. The new democracies of the 20thC and 21stC uniformly created constitutional courts whose central function was to check the exercise of power by the political branches(..) entrusted to these courts not only the power of judicial review, but the power to be the central administrative body over elections. The gamble is that democracy would be stabilized by guaranteeing limitations on government and repeat elections. (..) I would prefer to see the question whether strong court constitutionalism can sustain democracy in fractured societies as an empirical one-- of "does it work?" If it does, we can indulge the theoretical question of the legitimacy of how judicial power is exercised, but down the road a ways.
Instapaper  books  constitutional_law  constitutions  democratization  transition_economies  post-colonial  limited_government  power-concentration  power-asymmetric  accountability  government-forms  government-roles  checks-and-balances  separation-of-powers  judiciary  judicial_review  elections  voting  corruption  parties  legitimacy  legitimacy-international  authoritarian  one-party_state  democracy_deficit  political_participation  opposition  from instapaper
july 2015 by dunnettreader
Charles Barzun and Dan Priel - Jurisprudence and (Its) History - Symposium Introduction | Virginia Law Review 101 Va. L. Rev. 849 (2015)
Whereas legal philosophers offer “analyses” that aim to be general, abstract, and timeless, legal historians offer “thick descriptions” of what is particular, concrete, and time-bound. But surface appearances can deceive. Perhaps unlike other areas of philosophy, the subject matter of jurisprudence is at least partially (if not entirely) a social phenomenon. Courts, legislatures, judicial orders, and statutes are the products of human efforts, both collective and individual, and they only exist as legislatures, courts, and the like insofar as they possess the meaning they do in the eyes of at least some social group. For this reason, legal philosophers since at least H.L.A. Hart have recognized their task to be a “hermeneutic” one—one which aims to discern or make explicit the “self-understanding” of legal actors. At the same time, legal historians aim not simply to record legal rules that existed at some given point in history, but to unearth the meaning that actual people—judges, lawyers, politicians, and ordinary citizens—have attached to law. When they do so, they might be seen as uncovering evidence of those same “self-understandings” that philosophers claim constitute law. Perhaps, then, philosophical and historical inquiries about law do not differ so radically from each other after all. -- downloaded pdf to Note
article  philosophy_of_law  philosophy_of_language  ordinary_language_philosophy  jurisprudence  political_philosophy  moral_philosophy  intellectual_history  historiography  legal_history  legal_theory  legal_reasoning  constitutional_law  Founders  originalism  contextualism  change-social  change-economic  change-intellectual  norms  hermeneutics  positivism-legal  philosophy_of_history  institutional_change  downloaded 
june 2015 by dunnettreader
John Mikhail - The Constitution and the Philosophy of Language: Entailment, Implicature, and Implied Powers :: SSRN - Virginia Law Review, Vol. 101, No. 4, 2015 (rev'd June 11 2015)
Georgetown University Law Center -- The main purpose of this Article is to begin to recover and elucidate the core textual basis of a progressive approach to constitutional law, which appears to have been embraced in essential respects by many influential figures, including Wilson, Hamilton, Marshall, and the two Roosevelts, and which rests on an implied power to promote the general welfare. To pursue this objective, the Article relies on two strange bedfellows: the law of corporations and the philosopher Paul Grice. An ordinary language philosopher like Grice, (..) might seem like an unlikely ally to enlist in this endeavor. (..) underestimating the significance of Grice’s ideas for constitutional law would be a mistake. Plausibly interpreted, the Constitution vests an implied power in the Government of the United States to promote the general welfare, and Grice’s distinction between semantic and pragmatic implication is a helpful means of understanding why. After a general introduction, the Article first summarizes some key aspects of Grice’s philosophy of language and then briefly illustrates their relevance for constitutional law. The remainder of the Article is then devoted to explaining how, along with a relatively simple principle in the law of corporations, according to which a legal corporation is implicitly vested with the power to fulfill its purposes, Grice’s distinction between semantic and pragmatic implication helps to illuminate a thorny problem of enduring interest: What powers does the Constitution vest in the Government of the United States? -- Pages in PDF File: 41 -- Keywords: James Wilson, Charles Beard, James Madison, Gouverneur Morris, Paul Grice, constitution, implication, implicature, entailment, semantics, pragmatics, implied powers, enumerated powers, preamble, vesting clause, necessary and proper clause, sweeping clause, tenth amendment, originalism -- downloaded pdf to Note
article  SSRN  philosophy_of_law  philosophy_of_language  ordinary_language_philosophy  legal_reasoning  constitutional_law  US_constitution  US_history  federalism  US_government  US_legal_system  originalism  common_good  commonwealth  progressivism  Founders  Madison  Morris_Gouverneur  downloaded 
june 2015 by dunnettreader
Deborah Hellman, Commentary on Mikhail's "The Constitution and the Philosophy of Language: Entailment, Implicature, and Implied Powers" | Virginia Law Review - 101 Va. L. Rev. 1105 (2015)
Mikhail uses these insights about language and communication to say something about constitutional interpretation. But that is where the trouble begins. While Mikhail offers a masterful textual analysis of the Necessary and Proper Clause of the Constitution, I am not convinced that his analysis demonstrates its meaning, and if it does, I fear that Mikhail’s efforts yield the perverse consequence of delegitimizing the very document he is at great pains to enlarge. In what follows, I raise three worries about Mikhail’s analysis. First, a constitution is not a conversation between its drafters and some other people and, as a result, it is unclear whether the Gricean paradigm has anything useful to say about constitutional interpretation. Second, it is far from clear what a constitution is for and consequently there are unlikely to be accepted conventions about how to interpret the meaning of statements within them. Third, Mikhail’s article presents evidence that the Constitution’s drafters were strategic and crafty. But if the drafters are violating the cooperative principle Grice identified, this fact calls into doubt the significance of the ratification of the Constitution from which that document, purportedly, derives its legitimacy. -- downloaded pdf to Note
article  legal_theory  legal_reasoning  constitutional_law  philosophy_of_language  philosophy_of_law  Founders  legitimacy  US_constitution  downloaded 
june 2015 by dunnettreader
David Gans - The Role of Three-Judge Courts in Conservative Attacks on Campaign Finance Reform and Voting Rights | Balkinization - June 2015
Cases decided by a single federal district court judge (..) and are very rarely accepted for Supreme Court review. (..) the Supreme Court has complete control over its certiorari (discretionary) docket, and can refuse to hear a case for any reason without setting any judicial precedent for the future. But 3-judge court cases are radically different, as the Supreme Court is required to act on a direct appeal from the decision of a 3-judge court. When such an appeal is filed, the Justices have 3 options—either to summarily affirm, to dismiss the appeal for want of a substantial federal question, or to accept the case for full review. Unlike a denial of a petition for a writ of certiorari, each of these actions sets a precedent for the future. Because the Justices are often wary of setting a precedent without full briefing, direct appeals from 3-judge courts quite often receive full review on the merits. (..) The Supreme Court agreed to review Shelby County despite the absence of a circuit split, producing a landmark ruling gutting a key part of the Voting Rights Act and striking a blow against the power of Congress to protect the right to vote free from racial discrimination. Shelby County is the exception that proves the rule. Virtually all the big Roberts Court cases that have changed the ground rules for our democracy have been direct appeals from 3-judge courts. What this reflects is a long term conservative strategy for getting blockbuster campaign finance and voting rights cases to the Supreme Court. It is a strategy that has paid off time and again as John Roberts and his conservative colleagues have made it easier for corporations and the wealthy to spend unlimited sums of money on elections, and harder for Americans to vote in them.
Instapaper  SCOTUS  US_constitution  constitutional_law  judiciary  judicial_review  conservative_legal_challenges  voting  rights-legal  constitutional_regime  Roberts_Court  campaign_finance  partisanship-judiciary  from instapaper
june 2015 by dunnettreader
Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics by Douglas NeJaime, Reva Siegel :: SSRN - Yale Law Journal, Vol. 124, pp. 2516-2591, 2015
Douglas NeJaime, University of California, Irvine School of Law -- Reva Siegel, Yale University - Law School -- (...) Complicity claims focus on the conduct of others outside the faith community. Their accommodation therefore has potential to harm those the claimants view as sinning. (..) Some, tacitly acknowledging the democratic contests in which complicity claims are entangled, urge religious accommodation in the hopes of peaceful settlement. Yet, as we show, complicity-based conscience claims can provide an avenue to extend, rather than settle, conflict about social norms. We highlight the distinctive form and social logic of complicity-based conscience claims so that those debating accommodation do so with the impact on third parties fully in view. The Article considers a range of legal and institutional contexts in which complicity claims are arising, paying particular attention to RFRA. We show how concern about the third-party impact of accommodation structured the Court’s decision in Hobby Lobby. And looking beyond Hobby Lobby, we show how this concern with third-party harm is an integral part of the compelling interest and narrow tailoring inquiries that courts undertake in applying the statute. At issue is not only whether but how complicity claims are accommodated. -- Pages in PDF File: 76 -- Keywords: religion, accommodation, complicity, Hobby Lobby, Holt, contraception, abortion, marriage, exemptions, religious liberty, religious freedom, equality, liberty, healthcare, burwell -- saved to briefcase
paper  SSRN  constitutional_law  politics-and-religion  culture_wars  US_politics  US_constitution  religious_belief  religious_culture  health_care  women-rights  liberty  equality  employee_benefits  work-life_balance  labor_law  freedom_of_conscience  norms  discrimination 
june 2015 by dunnettreader
Jeremy Waldron - The Rule of Law in Public Law (September 2014) :: SSRN - Cambridge Companion to Public Law, Forthcoming
NYU School of Law, Public Law Research Paper No. 14-40 -- This paper explores the possibility of a conception of the rule of law that is oriented specifically to public law. It is not a conception of the rule of law that privileges private law rights (like rights of property) nor is it an abstract or anodyne conception that is supposed to apply to all areas of governance indiscriminately. Instead this is an account of the rule of law that takes the mission of public administration seriously and seeks to establish it on a footing of legality rather than managerialism, while at the same time acknowledging that sometimes private interests have to give way to the interests of the public. -- Number of Pages in PDF File: 19 -- Keywords: Dicey, discretion, public law, public administration, rule of law -- downloaded pdf to Note
chapter  SSRN  philosophy_of_law  jurisprudence  legal_theory  legal_system  public_law  administrative_law  rule_of_law  discretion  managerialism  public_interest  public_goods  rights-legal  constitutional_law  property_rights  property-confiscations  downloaded 
june 2015 by dunnettreader
Thomas Colby and Peter J. Smith - The Return of Lochner :: SSRN - April 2015 - Cornell Law Review, Vol. 100, No. 527, 2015
Both at GW Law School - For a very long time, it has been an article of faith among liberals and conservatives alike that Lochner v. New York was obviously and irredeemably wrong. Lochner is one of only a few cases that constitute our “anticanon,” universally reviled by the legal community as the “worst of the worst.” (..) conservatives are ready, once again, to embrace Lochner — although perhaps not in name — by recommitting to some form of robust judicial protection for economic rights. (...) this impending change has been greatly facilitated by important modifications to the theory of originalism, which has served for nearly a half century as the intellectual framework for conservative legal thought (..) and it has now evolved to the point where it can plausibly accommodate claims that the Constitution protects economic liberty. (..) how legal movements evolve generally. Sometimes the courts change the doctrine, and the theorists scramble to keep up. This is, roughly speaking, what happened with liberal legal thought in the second half of the 20thC. Just when liberal legal theorists, reeling from the Lochner era, had settled on the view that the courts should exercise judicial review very sparingly — and perhaps never to enforce rights not specifically identified in the Constitution — the liberal Court began to exercise judicial review more frequently and aggressively, often to protect rights not clearly identified in the Constitution. Liberal theorists then struggled for years to develop an account of the appropriate judicial role that condemned Lochner but legitimized later cases protecting fundamental rights and vulnerable minorities. Modern conservative legal thought seems to be following the opposite progression: the theorists lead, the opinion leaders gradually sign on, and judges eventually follow. — conservatives have patiently waited for the theory to come together — for the blueprints to be drawn — before moving forward. But the plans are now largely ready, and we expect that it will not be long before the bulldozers break ground. - 77 pages saved to SSRN briefcase
article  SSRN  SCOTUS  libertarianism  US_constitution  US_legal_system  legal_history  legal_theory  legal_reasoning  constitutional_law  civil_liberties  liberty-negative  laisser-faire  freedom_of_contract  freedom_of_conscience  equality  judicial_review 
june 2015 by dunnettreader
Sandy Levinson - The continuing relevance of Stephen A. Douglas: "Popular sovereignty," federalism, and moral relativism" | Balkinization - June 2015
Consider the following passages from the anguished dissents (..by) Scalia and Alito in Obergefell: [re their "indifference" re substance of SSM - notes how much this clashes with their Catholic beliefs that insist on moral absolutes determined by "natural law"] -- Federalism is (..) as a practical matter, as a means of acknowledging the diverse views we have about matters of political or social morality (..) there's much to said for this as a means for maintaining social peace, albeit at the cost of accepting the maintenance of what many might consider significant injustice in some of the states. But note well that what Scalia and Alito are doing is really reviving the theory of "popular sovereignty" best identified with the Little Giant Sen. Stephen A. Douglas with regard to the issue of slavery. (,.) Douglas professed himself indifferent to the moral critique of slavery. (..) What this translated into was the desirability of letting each state, as it joined the Union, make its own decision as to slavery or freedom. Somewhat more complicated was the right of the pre-state territory to make its own decision, in territorial legislatures, to welcome slaveowners. Douglas, to his political detriment, argued that they could place stumbling blocks in the way of the slaveowners, but, if they chose not to, that was all right too. The important thing was to recognize the fundamentally "federal" nature of the Union, a collection of people with decidedly different views about the legitimacy of owning other human beings as chattels, and to allow that decision to be made locally rather than on a one-size-fits-all national basis.
Instapaper  SCOTUS  constitutional_law  19thC  states_rights  federalism  slavery  morality-conventional  morality-divine_command  morality-Christian  rights-legal  natural_law  natural_rights  positivism-legal  Holmes  Douglas_Stephen  Lincoln  antebellum_era  abolition  marriage  Thomism  Thomism-21stC  Catholics  Papacy  from instapaper
june 2015 by dunnettreader
Jack Balkin - Bye, Bye, Glucksberg | Balkinization - June 2015
Justice Kennedy's opinion in Obergefell unceremoniously overrules Washington v. Glucksburg without saying so directly, as the Chief Justice well understands: "It is revealing that the majority’s position requires it to effectively overrule Glucksberg, the leading modern case setting the bounds of substantive due process." A little translation is in order here. Glucksberg is not, in fact, the leading modern case on substantive due process and implied fundamental rights. That would be Griswold or Eisenstadt (as reinterpreted by later courts), or (shudder!) Roe, or Casey or Lawrence, or now, Obergefell. Rather, Glucksberg is the case that people opposed to implied fundamental rights wish were the leading case and regularly cite as if it were the leading case that applied to every such question. Chief Justice Rehnquist--no fan of implied fundamental rights himself--wrote Glucksberg in 1997 precisely to lay down a marker so that federal judges would stop trying to imply fundamental rights. He didn't succeed.
Instapaper  SCOTUS  US_constitution  constitutional_law  due_process  rights-legal  conservative_legal_challenges  equality  precedent  Roberts_Court  legal_reasoning  from instapaper
june 2015 by dunnettreader
Jack Balkin - Obergefell and Tradition | Balkinization - June 2015
It is tempting to identify the dissenters with Burke, and view Kennedy as opposed to Burkeanism. Certainly the dissenters would like to brand Kennedy as a revolutionary or Jacobin, heedlessly destroying a valued institution at the center of society. But this is a caricature of what Kennedy is actually doing in his opinion. Kennedy's use of tradition is also Burkean in its own way. He simply emphasizes different features of Burke's thought. In particular Kennedy emphasizes change through respect for tradition that results from discussion and lived experience--as opposed to change that occurs through violence and revolutionary upheaval. Kennedy emphasizes the natural evolution and growth of previous commitments through debate, contestation and social practice. Our commitments evolve as they we apply them to changed factual circumstances and our wisdom grows through encountering those changed circumstances in practical terms. We can have greater confidence in our judgments achieved in this way because, unlike previous generations, we have the benefit of their experience, while they do not have the benefit of ours.
Instapaper  US_constitution  SCOTUS  constitutional_law  tradition  Burke  epistemology-social  epistemology-moral  rights-legal  legal_reasoning  marriage  family  family_law  from instapaper
june 2015 by dunnettreader
The Legacy of the U.S. Civil War: 150 Years Later - roundtable with historians | Cambridge University Press Blog - April 2015
Participants: Kathleen M. Hilliard  is the author of Masters, Slaves, and Exchange .  She is Assistant Professor in the Department of History at Iowa State… Quite interesting, both for their insights and for how the historiography of the US in the 19thC has changed -- not simply looking at social groups (both as actors and victims) who had been ignored, but that historiographical shifts in specialties (e.g. military history, or the connections between legal and political history) have changed or broadened the focus when it comes to the Civil War. Lots of links to CUP books as well as (unlinked) other books and papers. S
US_history  19thC  US_Civil_War  historiography-postWWII  historiography  military_history  social_history  cultural_history  digital_humanities  global_history  global_system  diplomatic_history  legal_history  constitutional_law  US_constitution  Congress  Lincoln  Confederacy  slavery  abolition  African-Americans  Native_Americans  Manifest_Destiny  frontier  industrialization  books  kindle-available  US_society  US_politics  US_government  US_legal_system  bibliography  Instapaper  from instapaper
may 2015 by dunnettreader
Thomas Grillot & Jean-Claude Monod - Interview with Bruce Ackerman - Reconstructing Citizenship for the 21stC | March 2012 - Books & ideas
Also translated into French -- Tags : liberalism | youth | elections | journalism | Constitution | citizenship | deliberation -- A world-famous legal scholar, Bruce Ackerman wants to reinvigorate citizenship in today’s democracies. Here, he reexamines the intellectual foundations of his work, and some of the pragmatic applications he designed with others. His principle is to always consider how the state intervenes in the autobiography of every man. -- downloaded pdf to Note
political_philosophy  moral_philosophy  liberalism  liberal_democracy  legal_theory  constitutional_law  constitutionalism  government-forms  elections  political_participation  political_culture  governmentality  deliberation-public  state-roles  power  power-asymmetric  downloaded  from instapaper
april 2015 by dunnettreader
Richard Briffault - The Uncertain Future of the Corporate Contribution Ban (Valparaiso University Law Review, Forthcoming) July 25, 2014 :: SSRN
Columbia Law School -- Columbia Public Law Research Paper No. 14-405 -- Concern about the role of corporate money has been a longstanding theme in American politics. The first permanent federal campaign finance law – the Tillman Act of 1907 – prohibited federally-chartered corporations from making contributions in any election and prohibited all corporations from making contributions in federal elections. Subsequently amended, continued, and strengthened over a century the federal corporate contribution ban is still on the books. Twenty-one states also prohibit corporate contributions to candidates in state elections. SCOTUS sustained the federal corporate contribution ban as recently as 2003 in FEC v. Beaumont, but that decision and the corporate contribution ban today rest on shaky ground. The Roberts Court has demonstrated little respect for either legislated campaign finance restrictions or the Court’s own campaign finance precedents. -- In Citizens United and McCutcheon, the Court emphasized that campaign finance restrictions cannot be justified by the goal of reducing the political power of the wealthy. Although much of the impetus for the corporate contribution ban is public anxiety over corporate wealth and power, the shareholder-protection and anti-circumvention justifications are not triggered by concern about corporate wealth but, rather, reflect other key features of the corporate form – its artificial existence as a legal to achieve ends desired by the individuals who have created it, and the potential for those who control the corporation to exploit shareholders. These two interests work in tandem, with shareholder-protection having greater purchase for multi-shareholder publicly-held entities, and anti-circumvention more relevant for single-shareholder, closely-held or nonprofit corporations. Together, they make the case for the corporate contribution ban for reasons other than the equality-promoting goal that Citizens United and McCutcheon so vehemently rejected. -- another paper beginning to deal with inherent conflict between management and shareholder interests in political spending that puts 2 conservative trends on collision
article  SSRN  SCOTUS  constitutional_law  corporate_law  campaign_finance  elections  corporate_governance  shareholders  shareholder_value  investors  management  principal-agent  capital_markets  downloaded  EF-add 
september 2014 by dunnettreader
Leo E. Strine , Nicholas Walter - Conservative Collision Course?: The Tension between Conservative Corporate Law Theory and Citizens United (Cornell Law Review, Forthcoming) - August 1, 2014 :: SSRN
Leo E. Strine Jr. - Supreme Court of Delaware; Harvard Law School; University of Pennsylvania Law School -- Nicholas Walter, Yale University -- Harvard Law School John M. Olin Center Discussion Paper No. 788 -- One important aspect of Citizens United has been overlooked: the tension between the conservative majority’s view of for-profit corporations, and the theory of for-profit corporations embraced by conservative thinkers. This article explores the tension between these conservative schools of thought and shows that Citizens United may unwittingly strengthen the arguments of conservative corporate theory’s principal rival. Citizens United posits that stockholders of for-profit corporations can constrain corporate political spending and that corporations can legitimately engage in political spending. Conservative corporate theory is premised on the contrary assumptions that stockholders are poorly-positioned to monitor corporate managers for even their fidelity to a profit maximization principle, and that corporate managers have no legitimate ability to reconcile stockholders’ diverse political views. Because stockholders invest in for-profit corporations for financial gain, and not to express political or moral values, conservative corporate theory argues that corporate managers should focus solely on stockholder wealth maximization and non-stockholder constituencies and society should rely upon government regulation to protect against corporate overreaching. Conservative corporate theory’s recognition that corporations lack legitimacy in this area has been strengthened by market developments that Citizens United slighted: that most humans invest in the equity markets through mutual funds under section 401(k) plans, cannot exit these investments as a practical matter, and lack any rational ability to influence how corporations spend in the political process. -- Keywords: Corporate governance, political spending, Citizens United, conservative corporate theory, regulatory externalities, lobbying, profit maximization, constitutional law, election law, labor law
article  SSRN  SCOTUS  legal_history  legal_system  legal_theory  corporate_law  corporate_governance  principal-agent  management  shareholders  shareholder_value  campaign_finance  lobbying  elections  labor_law  US_constitution  constitutional_law  public_policy  interest_groups  oligarchy  rent-seeking  investors  savings  capitalism  capital_markets  downloaded  EF-add 
september 2014 by dunnettreader
"LEGITIMATION" by Mark C. Modak-Truran
Mark C. Modak-Truran, Mississippi College School of Law -- This article identifies 3 conceptions of legitimation - pre-modern, modern, and post-secular - -- Pre-modern conceptions of legitimation consider governments and rulers legitimate if they are ordained by God or if the political system is ordered in accordance with the normative cosmic order. Contemporary proponents of the pre-modern conception range from those in the US who maintain that the government has been legitimated by the “Judeo-Christian tradition” to those in predominantly Muslim countries like Iran that have constitutional theocracies. -- the prevailing modern conception of legitimation in constitutional democracies stems from the “consent of the governed,” which includes 2 principles of legitimation - democracy (or popular sovereignty) and constitutionalism (or the rule of law). The critical challenges to these principles include the internal challenges of identity politics and religious fundamentalism and the external challenge of globalization. The dramatic return of religion and the surprising rise of political theology are two prominent developments supporting a shift to a post-secular conception of legitimation and a new post-secular social imaginary. -- Mark C. Modak-Truran. "LEGITIMATION" Encyclopedia of Political Thought. Ed. Michael T. Gibbons, Diana Coole, & Kennan Ferguson. Wiley-Blackwell, 2014. -- downloaded pdf to Note
political_philosophy  legitimacy  authority  divine_right  divine_command  democracy  constitutionalism  consent  social_contract  rule_of_law  post-secular  modernity  secularization  secularism  constitutional_law  government-forms  accountability  downloaded  EF-add 
july 2014 by dunnettreader
Scott J. Shapiro - What is the Rule of Recognition (and Does it Exist)? [chapter] :: SSRN in THE RULE OF RECOGNITION AND THE U.S. CONSTITUTION, Matthew Adler, Kenneth Himma, eds., Oxford University Press, 2009
Yale Law School, Public Law Working Paper No. 184 -- One of the principal lessons of The Concept of Law is that legal systems are not only comprised of rules, but also founded on them ....we cannot account for the way we talk and think about the law - as an institution which persists over time, imposes duties and confers powers, enjoys supremacy over other kinds of practices, resolves doubts and disagreements about what is to be done in a community and so on - without supposing that it is regulated by what he called the secondary rules of recognition, change and adjudication. -- In Part 1 I try to state Hart's doctrine of the rule of recognition with some precision. -- I also explore in this part whether the US Constitution can be considered the Hartian rule of recognition for the US legal system. In Part 2 I attempt to detail the many roles that the rule of recognition plays within Hart's theory of law. -- In Part 3 I examine three important challenges to Hart's doctrine: 1) the rule is under- and over-inclusive; 2) Hart cannot explain how social practices are capable of generating rules that confer powers and impose duties and hence cannot account for the normativity of law; 3) Hart cannot explain how disagreements about the criteria of legal validity that occur within actual legal systems are possible. In Parts 4 & 5, I address these objections. ...athough Hart's particular account of the rule of recognition is flawed, a related notion should be substituted - roughly, to treat the rule of recognition as a shared plan which sets out the constitutional order of a legal system. As I try to show, understanding the rule of recognition in this new way allows the legal positivist to overcome the challenges lodged against Hart's version while still retaining the power of the original idea. -- downloaded pdf to Note
article  books  SSRN  philosophy_of_law  legal_system  social_theory  social_order  political_order  change-social  institutions  constitutions  constitutional_law  constitutionalism  normativity  norms  obligation  institutional_change  positivism-legal  Hart  Dworkin  Raz  Finnis  US_constitution  conflict_of_laws  natural_law  legal_validity  legal_realism  sociology_of_law  community  planning  downloaded  EF-add 
july 2014 by dunnettreader
Jeremy Waldron - Political Political Theory: An Oxford Inaugural Lecture (2012) :: SSRN
NYU School of Law, Public Law Research Paper No. 12-26 -- "Inaugural Lecture" for the Chichele Professorship of Social and Political Theory. -- Political theorists study (1) political virtue, (2) political processes and institutions, and (3) political ideals (like justice, liberty, and equality). Since the time of Hume, Madison, and Kant, it has been thought that (2) is more important than (1), because maybe we can set up institutions that work for the general good whatever the state of virtue of the people... But in the revival of political philosophy heralded by Rawls in 1971, there has been great emphasis on (3) and not nearly enough on (2)... particularly in the UK. Chichele chair -holders G.A. Cohen and Isaiah Berlin focused almost exclusively on (3) -- with Berlin announcing that political philosophy was really just the study of "the ends of life." -- I argue for a reorientation of political theory teaching and scholarship back towards institutions -- particularly the normative evaluation of the political process and the exploration of institutional principles like democracy, representation, bicameralism, the rule of law, the separation of powers, federalism and so on. ..these issues should not be left to empirical or comparative politcial science, because they raise important and complex questions of evaluation that may be sold short by the pragmatic and consequentialist emphasis of empirical and comparative work. But political theory should respect the empirical study of institutions more than it does, and it should dovetail the normative and evaluative work that political theory involves with the understanding of institutions, processes, and practices that political science generates. -- downloaded pdf to Note
article  SSRN  intellectual_history  18thC  19thC  20thC  21stC  political_philosophy  political_science  human_nature  social_theory  institutions  government-forms  governmentality  constitutions  constitutionalism  constitutional_law  institution-building  institutional_change  political_change  political_participation  political_culture  Arendt  Berlin_Isaiah  Hume  Hume-politics  Hume-historian  comparative_history  political_order  legitimacy  democracy  separation-of-powers  checks-and-balances  legislature  executive  judicial_review  justice  civic_virtue  dignity  egalitarian  rule_of_law  citizenship  education-civic  federalism  social_process  socialization  civil_liberties  Founders  Madison  downloaded  EF-add 
july 2014 by dunnettreader
Jeremy Waldron - Constitutionalism: A Skeptical View (2012) :: SSRN
NYU School of Law, Public Law Research Paper No. 10-87 - May 1, 2012 -- This paper examines the ideology that goes by the name of "constitutionalism." The first part of the paper considers the significance of "written constitutions" The second part of the paper casts a skeptical eye at conceptions of constitutionalisim that emphasize "limited" government. Once "limited government" is contrasted carefully with "restrained government" (restraints upon specific actions by government) and with "controlled government" (e.g. insistence upon democratic control), we see that the association of constitutionalism with general limitations on the scope of government ought to make it a much more controversial ideal than the general anodyne acceptance of the term "constitutionalism" might lead us to expect. Finally, the anti-democratic implications of constitutionalism are explored. The paper argues that, by insisting on limited government, constitutionalism downplays the important role that constitutions have to perform in the modern world in establishing and securing specifically democratic authority. -- Keywords: authority, constitution, constitutionalism, constitutional law, democracy, judicial review, limited government, rights, written constitution
paper  SSRN  philosophy_of_law  legal_system  political_philosophy  moral_philosophy  constitutionalism  government-forms  democracy  judicial_review  constitutional_law  authority  legitimacy  political_participation  rights-legal  natural_rights  limited_government  accountability  constitutions  downloaded  EF-add 
july 2014 by dunnettreader

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