Introduction 37 results (showing 5 best matches)
- Constitutional Law Stories
- If the Supreme Court does not seem to care about the stories behind the cases it decides, why should anyone other than the parties themselves? One reason is that the stories are fascinating. Each of the fifteen chapters in this volume is its own riveting drama of conflict and uneasy resolution. But
- Constitutional Law Stories
- Selecting a mere fifteen of the hundreds of cases that comprise the constitutional law canon
- as setting the terms for debates over constitutional interpretation and the nature of the federal union that persist to this day; in Chapter 3, Jim Chen explores the question of judicial deference to Congress in such matters through the story of
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Chapter 3 The Story of Wickard v. Filburn: Agriculture, Aggregation, and Commerce 46 results (showing 5 best matches)
- The story of American constitutional law is in many respects an agrarian fable. Strikingly large chunks of constitutional law originate in America’s rural past. Numerous constitutional controversies have arisen from seemingly humble disputes over crop production, animal husbandry, and the processing of agricultural commodities.
- bridges the illusory gap between agricultural and constitutional law. addresses core issues of federalism, perhaps the “oldest question of constitutional law.”
- This constitutional shift revitalized the New Deal’s agricultural agenda. From 1935 to 1938, Congress passed four major statutes that reinstated earlier laws in all but name: the Frazier–Lemke Farm Bankruptcy Act of 1935, By 1939, the new Farm Bankruptcy Act, the Agricultural Marketing Agreement Act, and the new Agricultural Adjustment Act had all withstood constitutional challenges. The soil conservation law escaped scrutiny because “[n]o one could challenge the value” or the constitutionality “of conservation.”
- , 15 Const. Comment. 1 (1998) (using cases involving milk and liquor to outline American constitutional law).
- The Oldest Question of Constitutional Law
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Chapter 11 The Story of Whitney v. California: The Power of Ideas 29 results (showing 5 best matches)
- in constitutional jurisprudence, and in law generally. The story of is not a story of doctrine; it is a story of theory and principles, and a demonstration of the ability of ideas to shape the course of the law. In of free speech and the First Amendment. That theory, since embraced by generations of justices and scholars, has had a profound effect on modern First Amendment law. For that reason alone, is a case that is well worth closer examination. In addition, the story behind the
- It is today an axiom of constitutional jurisprudence that the separate opinions of Justices Holmes and Brandeis during the 1920s essentially created modern free speech law—an axiom which has been made into a truism by the fact that constitutional law casebooks typically begin their study of the First Amendment with the Holmes and Brandeis opinions. In any event, there is no reason to doubt the enormous influence of Holmes and Brandeis. Moreover, the influence of the Holmes/Brandeis opinions has been felt at two levels: first, at the doctrinal level in the evolution of the clear and present danger test; but additionally, in the articulation (for essentially the first time in the judiciary) of a rationale—actually, rationales—for the constitutional protection of free speech. The statement and acceptance of these rationales has had at least as great, and probably a greater, influence on the development of free speech law as has the clear and present danger test. And in this area,...
- Individual Rights in Constitutional Law
- : Constitutional Law 565–655 (1975).
- , Brandeis reintroduced into constitutional law the concept of popular sovereignty, The commitment to popular sovereignty that pervades Brandeis’s philosophy of free speech is a Romantic commitment, far removed from the dirty details of daily politics, but it is a commitment that resonates deeply with the modern psyche, in a way that the cold rationality of Social Darwinism does not. It is for that reason that Brandeis’s understanding of why free speech matters, and is worthy of special constitutional protection, has become so widely accepted , and why it has had such a profound impact on constitutional law.
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Constitutional Law Stories 16 results (showing 5 best matches)
- CONSTITUTIONAL LAW STORIES
- Chapter 1 The Story of Marbury v. Madison: Making Defeat Look Like Victory
- Chapter 2 The Story of McCulloch: Banking on National Power
- Chapter 3 The Story of Wickard v. Filburn: Agriculture, Aggregation, and Commerce
- Chapter 4 The Story of Bush v. Gore: The Paradox of Judicial Activism
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Contributors 19 results (showing 5 best matches)
- Constitutional Law Stories
- is the Reiss Professor of Constitutional Law at New York University School of Law. His publications cover topics in constitutional law, the law of the political process, procedural issues of complex litigation, employment law, and law and economics. His publications have appeared in all the leading American law reviews, as well as in social science and economics journals. Professor Issacharoff is an author of the
- is a Circuit Judge on the U.S. Court of Appeals for the Tenth Circuit. Before his appointment to the bench in 2002, Judge McConnell taught constitutional law and related subjects at the University of Chicago and later the University of Utah. He continues to teach part time as Presidential Professor at the S.J. Quinney College of Law at the University of Utah and as a visiting professor at Harvard and Stanford Law Schools. In his academic work, Judge McConnell has written widely on such subjects as freedom of religion, segregation, unenumerated rights, and constitutional history and theory. He is co-editor of
- is Sho Sato Professor of Law at the University of California, Berkeley. He received a B.A. in philosophy with high honors in 1971 and an M.A. in sociology in 1972, both from the University of Illinois. In 1975 he earned his J.D.
- is the Samuel Ashe Distinguished Professor of Constitutional Law & Director of the UNC Center on Law & Government at the University of North Carolina at Chapel Hill. He has written over fifty law review articles and essays on various topics in constitutional law. He is also the author of several books, including most recently
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Chapter 4 The Story of Bush v. Gore: The Paradox of Judicial Activism 61 results (showing 5 best matches)
- The present story does not purport to be a comprehensive account of . It is the story of the constitutional issues involved in the dispute over the 2000 presidential election. While the dispute encompassed many non-constitutional issues, this chapter will discuss them only insofar as they are pertinent to, or help to illuminate, the constitutional issues in and ramifications of . Most of the detailed accounts of the dispute over the 2000 presidential election include extensive discussions of both the constitutional and non-constitutional issues involved. For two excellent accounts relied upon in discussing the factual disputes, legal briefs, and public statements throughout, see Howard Gillman,
- was a perfect legal storm; it was the culmination of the convergence of a largely unpredictable mix of legal issues involving federalism, federal and state election law, separation of powers at the state and federal levels, equal protection, due process, and the Court’s political question and standing doctrines. But, neither the complex issues nor the unusually tight time constraints on the lawyers fully explain the significance of in constitutional law. Its importance turns in part on the Court’s unprecedented choice to deviate from the path taken on three previous occasions to resolve disputed presidential elections outside the courts. This choice is at the heart of the story of was the logical extension of the scope of judicial review that the Court had recognized in earlier precedents on voting rights and election law.
- that, if one were to examine “the public comments made by professors of constitutional law during the postelection litigation, it becomes apparent that the academic practice of constitutional law is as political as the judicial practice. Liberal professors who spend their time trying to find a satisfactory rationale for decisions that they like, such as
- 2008 Supplement to Modern Constitutional Law: Cases and Notes
- is that it was needed to avert a constitutional crisis. Perhaps the most sophisticated versions of this defense are made by two prominent scholars who do not always agree with each other, Cass Sunstein and Judge Richard Posner. Sunstein praised the Court for not only refraining from deciding or saying more than it had to in , but also for imposing “order without law”—imposing order on an otherwise unruly controversy even though the Court had no basis in law for doing so. While Sunstein criticized the Court for not having a basis in state or federal law for the deadline imposed on the recount, he applauded the Court for performing a “service” to the nation by doing two things: it resolved the protracted ...and electoral dispute between Bush and Gore “in a way that carried more simplicity and authority than anything that might have been expected from the United States Congress,” and it probably “avoided [the] constitutional crisis” that would have ensued had the Court not intervened...
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Chapter 5 The Story of Dred Scott: Originalism’s Forgotten Past 67 results (showing 5 best matches)
- Joseph Story,
- The concept of “municipal law” itself reflected a number of legal axioms. Blackstone defined “municipal law” as a “rule of civil conduct prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong.” William Blackstone, 1
- lacks precedential authority, it has had a lingering constitutional impact of another kind, for it played a role in the developments that made Lincoln president. Lincoln was arguably responsible for the North’s victory in the Civil War, and that victory led to the enactment of the Fourteenth Amendment, which is the fountainhead for much of the Supreme Court’s civil liberties jurisprudence. Through this chain of events, modern civil rights law may, oddly enough, be part of Again” theory, but the story of
- Story, of course, spoke the now out-moded language of natural law. One need not resort to natural rights rhetoric, however, to express the basic point: property depends for its definition upon legislatures in a way that liberty does not.
- , “The Very Stereotype the Law Condemns”: Constitutional Sex Discrimination Law as a Quest for Perfect Proxies
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Chapter 7 The Story of Korematsu: The Japanese–American Cases 45 results (showing 5 best matches)
- , Constitutional Law: Principles and Policies
- begins by addressing the charge of racism. In language that has become part of the constitutional law canon as the strict scrutiny standard of review, Black states, in very strong terms, the proper constitutional response to real racial prejudice, including a test for when such legal restrictions upon a single group are permissible:
- This exclusion of “all persons of Japanese ancestry, both alien and non-alien,” from the Pacific Coast area on a plea of military necessity in the absence of martial law ought not to be approved. Such exclusion goes over “the very brink of constitutional power” and falls into the ugly abyss of racism.
- The separation of military authority from constitutional law is the proposal that drew Justice Frankfurter’s response.
- When an area is so beset that it must be put under military control at all, the paramount consideration is that its measures be successful, rather than legal. The armed services must protect a society, not merely its Constitution…. [A] commander in temporarily focusing the life of a community on defense is carrying out a military program; he is not making law in the sense the courts know the term. He issues orders, and they may have a certain authority as military commands, although they may be very bad as constitutional law.
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Chapter 8 The Story of Baker v. Carr 26 results (showing 5 best matches)
- Constitutional law’s traditional focus on the courts as the only relevant actors misses the dynamics of constitutional litigation. Particularly in the domain of the apportionment of political power, constitutional litigation is inevitably infused with a large dose of political struggle. The path to
- Occasionally in all walks of life, law included, there are breakthroughs that have the quality of truth revealed. Not only do such ideas have overwhelming force, but they alter the world in which they operate. In the wake of such breakthroughs, it is difficult to imagine what existed before. Such is the American conception of constitutional democracy before and after the “reapportionment revolution” of the 1960s.
- and divided the argument time with the state lawyers. Cox’s role was to address the constitutional issues directly, while Charles Rhyne and Tom Osborn were to take on matters concerning state law and the actions of the state legislature. Two issues dominated the argument before the Court.
- Three political obstacles proved nearly insurmountable during the 1950s. First, most states required constitutional revision to eliminate malapportionment. In 1962, thirty-five state constitutions contained provisions that inevitably produced unequal district populations. The most common such requirement was a guarantee that every county or, in the New England states, town receive at least one seat in the legislature. The Connecticut Constitution, written in 1818, guaranteed all towns at least one state representative and no town more than two. Nothing short of a constitutional convention could have changed this arrangement. Holding a constitutional convention, however, may not have produced population-based districting. In 1902, Connecticut called a constitutional convention to address, among other matters, the basis of representation, but the compromise produced by that body was not acceptable to the electorate.
- The Politics of Constitutional Litigation
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Chapter 14 The Story of City of Boerne v. Flores: Federalism, Rights, and Judicial Supremacy 61 results (showing 5 best matches)
- important role in interpreting the Constitution? The tradition of giving the Supreme Court the last word on constitutional interpretation is deeply entrenched in U.S. constitutional law. No changes in that tradition are at all likely. Still, thinking about institutional alternatives helps us think about the most fundamental questions in constitutional law.
- The Court did not rely entirely on what was—or was not—in the legislative record, though, in part because of its concern that doing so would impose as a matter of constitutional law some procedural requirements upon Congress. Such a course, the Court feared, might not be sufficiently respectful of Congress’s prerogatives, and might commit the Court to upholding statutes enacted after the procedures were followed without the Court considering the statutes’ substance, something the Court might not want to do.
- One reason may be the Court’s recognition that the expanded role of government in the modern era creates a far larger number of burdens on religious exercise than occurred in the past. A constitutional rule barring legislatures from adjusting their regulatory statutes to take account of these burdens, while allowing it to draw all sorts of other lines (such as exempting small businesses from laws prohibiting discrimination in employment), would be in practice
- Kennedy then compared RFRA to the Voting Rights Act, where Congress had a substantial record of constitutional violations. In contrast, he wrote, “RFRA’s legislative record lacks examples of modern instances of generally applicable laws passed because of religious bigotry.” There were references to burdensome general laws, without express statements that such laws were targeted at religious exercise, and “anecdotal evidence” about autopsies, zoning regulations, and historic preservation laws. These were not, according to the Court, “examples of legislation enacted or enforced due to animus or hostility” to religion. “Congress’ concern was with the incidental burdens imposed, not the object or purpose of the legislation.”
- Scholars of Canadian constitutional law disagree about whether the notwithstanding clause has actually promoted this sort of inter-branch dialogue. The Canadian Supreme Court has allowed legislatures to invoke Section 33 prospectively, before the courts have said anything about a particular statute, which stops the dialogue before it begins. (Judge Robert Bork’s proposal that Congress be allowed to overrule the Supreme Court’s constitutional decisions by majority vote addresses the problem of stopping a dialogue before it begins, because under his proposal Congress can act only after the Court has spoken. Bork’s proposal does not include an analogue to the Canadian sunsetting requirement.
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Chapter 6 The Story of Plessy v. Ferguson: The Death and Resurrection of Racial Formalism 72 results (showing 5 best matches)
- nor is it merely a poorly justified decision endorsing a bad law. The story of is the story of race segregation in the United States. This story reveals that segregation was both private and public, political and social, the product of both law and custom. In Southern society, segregation came to be understood as normative and necessary, “what should be and what must be.” Even more, segregation’s meaning transcended its regional variations. Through
- As additional states came under Republican control, or congressionally authorized governments took office, equal accommodations laws were adopted. The most significant and relevant exception for the purposes of this story is New Orleans, where public schools were integrated until 1877.
- The Court was dismissive of the argument that Plessy’s assignment to a railway car for Blacks based on the standardless determination of a railway employee was an arbitrary and unauthorized deprivation of the property in whiteness that offended constitutional requirements of due process. At the same time, however, the Court’s decision lent support to the notion of racial reputation as a property interest that required the protection of law through actions for damages. It did not specifically consider or endorse any particular definition of racial categories, but it protected the boundaries of whiteness even as it denied the constitutional relevance of race determinations within a regime of enforced segregation. Notwithstanding the variation among jurisdictions that held that “a preponderance of the blood,” as distinct from a rule of three-fourths, conferred white racial status, the Court deferred to state law as the legitimate source of racial definitions, even as it declined to...
- Saks noted that Reconstruction and the growth of national power “put state court judges of miscegenous bodies—white men charged with upholding state criminal law against federal constitutional challenges—on the defensive on many levels: sexual, economic, professional, and political.” Saks
- was the assumption-indeed the assertion-that racial exclusion meant the same thing for Blacks and whites; because the law extended equal treatment to different racial groups, there was no equal protection violation. The majority’s holding that Plessy had no viable constitutional claim because the law barred Blacks from cars reserved for whites, and barred whites from cars reserved for Blacks, embodied the racial formalism roundly rejected by Harlan’s dissent.
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Chapter 10 Contested Ground: The Story of Roe v. Wade and its Impact on American Society 96 results (showing 5 best matches)
- The Finkbine story changed media coverage of abortion from something dirty and criminal to a compelling human story that affected real families faced with difficult decisions. It also increased public sympathy for changing the law. A Gallup poll conducted a month after her return from Sweden reported that fifty-two percent of respondents said Finkbine had done the right thing, with thirty-two percent labeling her choice wrong. Even a third of Catholics were willing to say she had done the right thing.
- The ALI endorsement of liberalized laws received front page press attention, led to increased numbers of national magazine articles sympa-thetically describing the horror stories of women who had illegal abortions, and sparked supportive law review and medical journal articles and even articles in practitioner-oriented bar journals from prosecutors supporting legal change.
- With so many abortion cases involving right-to-privacy challenges to state laws soon to inundate the Supreme Court, it appeared inevitable that the Justices could no longer duck the issue they had avoided in their ruling. Although critics have contended that the Supreme Court should have waited for more development of the issue in the lower courts, there were at least twenty cases progressing in lower federal or state courts, with the decisions about equally split as to whether abortion laws were constitutional. Whether there was a constitutional right
- litigation was rendered moot when the New York legislature repealed the state’s criminal abortion law. To ensure himself of a Supreme Court argument, he remained active in other cases. He filed a constitutional challenge to New Jersey’s abortion law, and was involved in or aware of court challenges brought in 1970 or 1971 to the abortion laws in Wisconsin, Ohio, California, Colorado, Connecticut, Georgia, Kentucky, Arizona, Illinois, Indiana, Florida, Michigan, Minnesota, Missouri, Louisiana, South Dakota, Kansas, and Texas.
- abortion to a Mexican doctor who performed unlicensed abortions in southern California. Lawyers who had been active in the California legislative reform battle offered their services for Dr. Belous’ appeal to the California Supreme Court, and they prepared an amicus brief setting forth the constitutional arguments. The brief was signed by many nationally prominent doctors and medical school deans. The California Supreme Court vacated Dr. Belous’ conviction, and declared the precursor statute to California’s reform law unconstitutional, because terms under which abortions were permitted if “necessary” to “preserve life” were too vague. But, in dicta, the court gave great hope to proponents of a broader challenge based on ...for the legislature to try to tighten the definition of permissible life-saving abortions, because “a definition requiring certainty of death would work an invalid abridgment of the woman’s constitutional rights. The rights involved in the instant case are...
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Chapter 9 The Story of Lochner v. New York: Impediment to the Growth of the Regulatory State 86 results (showing 5 best matches)
- is a problem “because we do not have a convincing account of the criteria by which our own aspirations to preserve constitutional rights should be compared to, and therefore distinguished from, what has become a paradigmatic example of judicial failure.” reinterpretation among constitutional law scholars. While conservatives argue that the current Court should reassess its endorsement of , many liberal constitutional law scholars demur.
- Another strand of state constitutional case law suggested that any regulation of contractual relations that lacked a valid police power rationale was arbitrary and unreasonable, and therefore unconstitutional. The right to be free from arbitrary or unreasonable regulation had deep roots in Anglo–American natural rights thinking. The only question was whether judges had the constitutional authority to enforce this right. While constitutional objections to class legislation were mainly addressed under the Fourteenth Amendment’s Equal Protection Clause, postbellum judges located the constitutional source of the more general right to be free from arbitrary or unreasonable regulations in the Due Process clauses of the Fourteenth Amendment and state constitutions. Courts were especially vigilant in their review of labor regulations, which they saw as potentially violating the fundamental right to “free labor,” a right that had been an explicit ideological basis of the Civil War. Several...
- thus became the leading case in the “anti-canon,” the group of wrongly decided cases that help frame what the proper principles of constitutional interpretation should be. ’s error’ remains the central obsession … of contemporary constitutional law.” Supreme Court Justices are at pains to deny that their opinions declaring laws unconstitutional are
- Regulatory laws that applied only to certain industries, like the hours provision of the Bakeshop Act, were especially vulnerable to the charge of class legislation, although the outcome of challenges to various regulations very much depended on the jurisdiction in which the challenges were brought. The many state decisions invalidating laws on class legislation grounds led treatise writer Ernst Freund to conclude in 1904 that the ban on unequal laws is “one of the most effectual limitations upon the exercise of the police power,” the states’ power to regulate on behalf of the health, safety, and welfare of the public. The impact on protective labor legislation was particularly stark—the prohibition on class legislation was seen as the greatest constitutional barrier to regulation of the labor market.
- conditions that could impact their health than in working conditions. Marshall’s story included tales of cockroaches on the walls and on baking utensils, flour mixed in a tub that had been used to wash a sick child’s clothes, and graphic illustrations of other unsanitary conditions. The specifics of Marshall’s reporting—or at least how representative his findings were of cellar bakeries in general—are a bit suspect, because he was known for his reformist sympathies, his article was researched at the urging and with the cooperation of Weismann, and the piece was timed to coincide with the bakers’ union’s campaign for a ten-hour law.
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Chapter 15 The Story of the Guantánamo Cases: Habeas Corpus, the Reach of the Court, and the War on Terror 55 results (showing 5 best matches)
- This chapter tells the story of only three of those decisions, the ones concerning the detainees held at the Guantánamo Bay Naval Station. We do not include the related story of the Supreme Court’s decision in
- Sunstein and Goldsmith also suggest that the nation’s social attitudes towards government, the military, and the law had evolved between 1942 and 2001. Between the two military orders, the United States experienced Vietnam and Watergate. These events and others eroded the high regard held in the press, in Congress, and in academia for the executive branch and the military. Yet even as this respect dissipated, Sunstein and Goldsmith suggest that the commitment to individual rights strengthened within the public and the legal system. The Court that wrote the Between 1942 and 2001, federal constitutional law and habeas corpus review had changed significantly.
- Justice Breyer then transitioned to the jurisdictional question, asking how the court could, “if we accepted your interpretation, possibly avoid the most terribly difficult and important constitutional question of whether Congress can constitutionally deprive this Court of jurisdiction in habeas cases?” Clement, after some intervening questions, responded that “this case, and most of the cases, don’t raise a serious Suspension Clause problem, for the simple reason that I think deferring review or channeling it to the court of appeals does not amount to a suspension.” All Congress did in the DTA, he contended, was to “restore the law to the understanding of the law that had prevailed for 200 years.”
- Whatever story one chooses to believe, Rasul was at most a marginal figure among America’s foes.
- The Guantánamo Files: The Stories of the 759 Detainees in America’s Illegal Prison
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Chapter 2 The Story of McCulloch: Banking on National Power 39 results (showing 5 best matches)
- If Justice Story is to be believed, Marshall’s high regard for Pinkney was well-deserved. Of his three-day (!) oral argument, Story said:
- Marshall rebuffed the claim that state taxation of the federal government and federal taxation of the state government were equivalent. His argument presages what later became known as the process theory of constitutional law. The critical passage encapsulated much of the opinion’s rationale and is worth quoting at length:
- in American constitutional law, its meaning and current significance are still contested on today’s Supreme Court. As basic issues about the nature of federalism are once again being debated, some dissonance appears to exist between Marshall’s nationalist vision and the inclinations of some of the current Justices.
- in Contexts of the Constitution: A Documentary Collection on Principles of American Constitutional Law
- Text and Principle in John Marshall’s Constitutional Law: The Cases of
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Chapter 13 The Story of Al Smith: The First Amendment Meets Grandfather Peyote 50 results (showing 5 best matches)
- The Oregon Supreme Court, however, did not accept Justice Brennan’s invitation. During the 1980s, the Oregon court had become nationally renowned for its independence and its insistence that the state courts must construe Oregon’s constitution before reaching any issues of federal constitutional interpretation. Under the leadership of Justice Hans Linde, a former law professor, the Oregon court was in the forefront of a revolution in state constitutional law that had spread far beyond the state’s borders. In Linde’s view, state courts had fallen too deeply under the sway of the Warren and Burger Courts, with their often-vague “balancing” tests which posed state “interests” against individual rights. State courts were not simply a junior version of the federal judiciary, Linde contended, and each state’s own history and law mandated an independent consideration of the text and history of its own constitution.
- Constitutional Law
- to enforce the national constitutional values of Equal Protection and Due Process of Law. It directed courts to apply the compelling interest test whenever neutral laws burdened an individual right of Free Exercise, whether that burden resulted from federal or state law or from the action of state or federal administrative agencies. President Clinton, who had enthusiastically supported the law, signed it in November 1993, saying, “Let us respect one another’s faiths, fight to the death to preserve the right of every American to practice whatever convictions he or she has, but bring our values back to the table of American discourse to heal our troubled land.”
- Neither the Oregon Supreme Court nor this Court has confronted the question whether the ingestion of peyote for sincerely held religious reasons is a form of conduct that is protected by the Federal Constitution from the reach of a State’s criminal laws. It may ultimately be necessary to answer that federal question in this case, but it is inappropriate to do so without first receiving further guidance concerning the status of the practice as a matter of Oregon law. A substantial number of jurisdictions have exempted the use of peyote in religious ceremonies from legislative prohibitions against the use and possession of controlled substances. If Oregon is one of those States, respondents’ conduct may well be entitled to constitutional protection. On the other hand, if Oregon does prohibit the religious use of peyote, and if that prohibition is consistent with the Federal Constitution, there is no federal right to engage in that conduct in Oregon. If that is the case, the State is...
- ...as a landmark case at the time the Court reviewed it. The Court’s radical holding came as a surprise to observers and to the parties themselves, none of whom had asked the Court to redraw the system of religious freedom. And the dispute itself arose in the most obscure of circumstances: an administrative challenge to a decision denying unemployment benefits to alcohol and drug abuse counselors. It was largely powered by the sheer stubbornness and grit of two remarkable men, who held diametrically opposite positions on the constitutional status of the Native American Church, a traditional Native American religion that worships peyote as the messenger and embodiment of the Creator. Each man believed his position was right; each man believed the issues in the case were matters of life and death. One of the two antagonists was Oregon’s attorney general, Dave Frohnmayer; the other was a little-known Native American named Alfred Leo Smith Jr. In the end, Smith’s determination wrote...
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Chapter 12 The Story of West Virginia State Board of Education v. Barnette: The Pledge of Allegiance and the Freedom of Thought 48 results (showing 5 best matches)
- holding was that disputes over the meaning of religious liberty or the freedom of speech do not provide exceptions to the obligation of courts in constitutional cases to uphold the laws and practices of politically accountable branches of government “[e]xcept where the transgression of constitutional liberty is too plain for argument.”
- There followed fully twenty-five pages of heartfelt advocacy of his trademark philosophy of judicial deference to the constitutional understanding and responsibility of the electorally accountable institutions of governance in cases, not excluding those involving small, unpopular—and, some would assert, politically defenseless—minorities. “It can never be emphasized too much,” Frankfurter admonished his brethren, “that one’s own opinion about the wisdom or evil of a law should be excluded altogether when one is doing one’s duty on the bench.” His preferred standard for identifying a constitutional violation under the First Amendment was not different from the deferential standard the majority had come to embrace for cases of economic regulation challenged under the Due Process Clause: “whether legislators could in reason have enacted such a law.”
- Apocalypse Delayed: The Story of Jehovah’s Witnesses
- if standard appeals to neutrality, anonymity, and the constitutional interest in unrestricted and undistorted communication fail? As we have argued, efforts to explain that focus on the direct effect the recitation requirement has on the speakeraudience relationship are strained at best. Speakers are not really at risk of being misunderstood or involuntarily exposed. The focus of constitutional concern should be turned inwards towards speakers, not outwards towards their audiences. We suggest that what underpins freedom of conscience. The main constitutional defects with the mandatory pledge lie in the attitude and the message the recitation requirement conveys toward the speaker and the risks that such a requirement will exert an untoward and inappropriate influence on the speaker’s freedom of thought.
- A related, perhaps more important, concern is that a recitation requirement places a person who strives to be sincere, but who does not believe the contents of the recitation, in a dilemma: either disobey the law or fail to practice the character virtue, a virtue that supports and is presupposed by the constitutional structure. Citizens who read the pledge to assert that the nation is in fact providing liberty and justice for all but who doubt that this claim is true must fail to satisfy either the
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Chapter 1 The Story of Marbury v. Madison: Making Defeat Look Like Victory 32 results (showing 5 best matches)
- The disagreement over the judiciary went to the heart of American constitutionalism. Was the Constitution, as the Republicans believed, principally an instrument of popular government, in which the will of the people should control even the question of constitutional meaning? Or was the Constitution, as the Federalists believed, principally an instrument of the rule of law, to be enforced by independent judges even in the face of popular opposition?
- During the Repeal Act debates, most Jeffersonians hewed to a moderate middle. Under this view, judicial review was an implication of the principle that each department of government had authority to make independent constitutional judgments in the course of discharging its own duties. Within the confines of a case or controversy, the courts had authority to determine which of two competing laws applicable to the case—the statute or an inconsistent constitutional provision—controlled the outcome. But this did not imply any special or final, let alone exclusive, power of “judicial” review. The other branches faced similar issues of legal and constitutional interpretation in the course of performing their duties. The Constitution was final and authoritative, but its meaning was to be determined by each branch within its own scope of authority, and ultimately by the people. This has become known as “departmentalism” or “co-ordinate review.” A few years after
- According to Jeffersonians, coordinate review gave triple security to individual rights. Any denial of life, liberty, or property required first that the legislative branch consider the limitation constitutional, second that the executive bring charges (which it would not do if the restriction were not constitutional), and third that the court—meaning both judge and jury—deem it constitutional. No one branch had authority to determine constitutionality for all. In 1820, Jefferson declared it “a very dangerous doctrine indeed” that judges would be deemed “the ultimate arbiters of all constitutional questions.”
- Republicans proposed to attack judicial life tenure by removing the new circuit judges from office by statute and by threatening sitting judges with impeachment. They proposed to repeal the Judiciary Act of 1801 and thus to return to the weak and inefficient structure of the pre–1801 judiciary. They denied the authority of federal judges to act on the basis of common law in the absence of statutes, especially in criminal cases. Some of them even denied the power of the judiciary to review the decisions of Congress or the executive on constitutional or (in the case of the executive) other legal grounds.
- Lee then argued his legal points. Deliberately tailoring his argument to the Repeal Act controversy, Lee emphasized the theme of judicial independence. From the Federalists’ perspective, Jefferson’s refusal to allow Marbury to serve his five-year term as justice of the peace presented the same issue, in miniature, as the Repeal Act’s displacement of life-tenured circuit judges. In both cases, the Administration was willing to defy the law in order to wrest control over the institutions of justice. Moreover, although Lee did not argue the point, the constitutional issue on which ultimately was decided was essentially the same as that posed by the return to circuit riding: whether it was constitutional for Congress to give Supreme Court Justices original jurisdiction beyond that authorized by Article III.
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- This publication was created to provide you with accurate and authoritative information concerning the subject matter covered; however, this publication was not necessarily prepared by persons licensed to practice law in a particular jurisdiction. The publisher is not engaged in rendering legal or other professional advice and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
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- Publication Date: July 8th, 2009
- ISBN: 9781599411699
- Subject: Constitutional Law
- Series: Law Stories
- Type: Overviews
- Description: Dorf’s Constitutional Law Stories provides a student with an understanding of 15 leading U.S. constitutional law cases. It focuses on how lawyers, judges, and socioeconomic factors shaped the litigation, and why the cases have attained landmark status. This book is suitable for adoption as a supplement in an introductory constitutional law course or as a text for an advanced seminar.