Viewed closely and comprehensively, Masterpiece Cakeshop, far from simply being the narrow, shallow, and modest decision many have taken it to be, is a rich, multi-faceted decision that cleaves and binds the parties to the case, carefully managing conflictual crisis. Through a ruling for a faithful custom-wedding-cake baker against a state whose legal processes are held to have been marred by anti-religious bias, the Court unfolds a cross-cutting array of constitutional wins and losses for cultural conservatives and traditional moralists, on the one hand, and for lesbians and gay men and their supporters committed to civil and equal rights, on the other. The Court’s central anti-religious-discrimination holding doesn’t only potentially benefit opponents of such discrimination in other cases. This holding also has boomerang-like tendencies that should make it useful for those who would level anti-discrimination claims on a variety of other grounds. Liberal and progressive audiences might thus reconsider their aversions to the decision for this reason alone. What’s more, Masterpiece Cakeshop’s “shadow rulings,” described in detail here, dole out notable victories to cultural conservatives, traditional moralists, and lesbians and gay men alike. Officially declining to adjudicate the merits of the baker’s artistic freedom claim under the First Amendment, the Court’s opinion expresses openness and sympathy, but ultimately substantive doubt about it. In these respects, and notwithstanding suggestions to the contrary, Masterpiece Cakeshop is full of substantive lawmaking. Having tracked that lawmaking to its textual limits, analysis turns to the opinion’s final passage, which, on one level, importantly recapitulates the opinion’s constitutional rulemaking, instructing courts and governmental actors one last time on how to handle cases like this one in the future. On another level, the passage is a compass pointing to lessons in moral politics that the opinion offers to the partisans of the Kulturkampf. One version of the Court’s moral-political teaching involves instruction in a moral politics of respect and friendship. This may be practically politically viable, leaving aside whether it will in fact be accepted. A more ambitious version of the opinion’s moral-political teaching involves a moral politics of sibling love that’s certain to be widely and emphatically rejected. Reconfigured in aesthetic terms, however, the moral politics of sibling love may receive a more nuanced hearing: widely dismissed as an undertaking appropriate for politics, but received with perhaps different sensibilities on an aesthetic plane. If it’s presently uncertain and undecidable whether Masterpiece Cakeshop will prove to have been a major legal event, whatever is ultimately made of it, it covers plenty of ground, doing plenty of legal and extra-legal work, in the here and now.
{"title":"Masterpiece Cakeshop's Homiletics","authors":"Marc S. Spindelman","doi":"10.2139/ssrn.3595236","DOIUrl":"https://doi.org/10.2139/ssrn.3595236","url":null,"abstract":"Viewed closely and comprehensively, Masterpiece Cakeshop, far from simply being the narrow, shallow, and modest decision many have taken it to be, is a rich, multi-faceted decision that cleaves and binds the parties to the case, carefully managing conflictual crisis. Through a ruling for a faithful custom-wedding-cake baker against a state whose legal processes are held to have been marred by anti-religious bias, the Court unfolds a cross-cutting array of constitutional wins and losses for cultural conservatives and traditional moralists, on the one hand, and for lesbians and gay men and their supporters committed to civil and equal rights, on the other. The Court’s central anti-religious-discrimination holding doesn’t only potentially benefit opponents of such discrimination in other cases. This holding also has boomerang-like tendencies that should make it useful for those who would level anti-discrimination claims on a variety of other grounds. Liberal and progressive audiences might thus reconsider their aversions to the decision for this reason alone. What’s more, Masterpiece Cakeshop’s “shadow rulings,” described in detail here, dole out notable victories to cultural conservatives, traditional moralists, and lesbians and gay men alike. Officially declining to adjudicate the merits of the baker’s artistic freedom claim under the First Amendment, the Court’s opinion expresses openness and sympathy, but ultimately substantive doubt about it. In these respects, and notwithstanding suggestions to the contrary, Masterpiece Cakeshop is full of substantive lawmaking. Having tracked that lawmaking to its textual limits, analysis turns to the opinion’s final passage, which, on one level, importantly recapitulates the opinion’s constitutional rulemaking, instructing courts and governmental actors one last time on how to handle cases like this one in the future. On another level, the passage is a compass pointing to lessons in moral politics that the opinion offers to the partisans of the Kulturkampf. One version of the Court’s moral-political teaching involves instruction in a moral politics of respect and friendship. This may be practically politically viable, leaving aside whether it will in fact be accepted. A more ambitious version of the opinion’s moral-political teaching involves a moral politics of sibling love that’s certain to be widely and emphatically rejected. Reconfigured in aesthetic terms, however, the moral politics of sibling love may receive a more nuanced hearing: widely dismissed as an undertaking appropriate for politics, but received with perhaps different sensibilities on an aesthetic plane. If it’s presently uncertain and undecidable whether Masterpiece Cakeshop will prove to have been a major legal event, whatever is ultimately made of it, it covers plenty of ground, doing plenty of legal and extra-legal work, in the here and now.","PeriodicalId":258683,"journal":{"name":"The Cleveland State Law Review","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-05-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132728934","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Twenty-Fifth Amendment to the U.S. Constitution provides a mechanism for the vice president’s assumption of the presidency when it is determined that the president “is unable to discharge the powers and duties of office.” Many instances of U.S. presidential or vice presidential incapacity have happened. Unbeknownst to the public and much of the governmental leadership at the time, for seventeen months wife Edith Wilson, with the assistance of the president’s physician and personal secretary, kept the true state of President Woodrow Wilson’s disabling health conditions secret from the American people. Wilson’s day-to-day duties had been abandoned or overseen largely by ill-equipped wife Edith, who served as the sole conduit between the president and the outside world. It is now clear that other past presidents have hidden their impaired physical and mental condition from the American public. What would have happened if John F. Kennedy or any of the other presidents, who have died in office, had continued to live for a prolonged period of time while unable to discharge the duties and responsibilities of the presidency? It was the death of President John F. Kennedy that prompted the 25th Amendment to the Constitution to gain ratification in 1967, “in part to establish a method to fill the vice presidency if it became vacant”. On Saturday morning September 22, 2018, readers of The New York Times awoke to read a page-one story about how the deputy attorney general, Rod J. Rosenstein had previously advocated the secret White House recording of President Trump, “to expose the chaos consuming the administration, and he discussed recruiting cabinet members to invoke the 25th Amendment to remove Mr. Trump from office for being unfit.” Given this recent controversy, it seems timely and opportune to take a fresh look at the twenty-fifth Amendment, its history and purpose, how it works, and potential application.
美国宪法第25条修正案规定，当确定总统“无法履行其权力和职责”时，由副总统接任总统职务。美国总统或副总统无能为力的例子很多。当时公众和大部分政府领导都不知道，在总统的医生和私人秘书的协助下，妻子伊迪丝·威尔逊在十七个月的时间里，对美国人民隐瞒了伍德罗·威尔逊总统致残健康状况的真实情况。威尔逊的日常工作基本上由装备不佳的妻子伊迪丝负责，她是总统与外界之间唯一的沟通渠道。现在很清楚，其他前任总统都向美国公众隐瞒了他们身体和精神上的受损状况。如果约翰·f·肯尼迪或其他在任上去世的总统在无法履行总统职责的情况下继续活了很长一段时间，会发生什么?约翰·f·肯尼迪总统的去世促使宪法第25条修正案于1967年获得批准，“部分是为了建立一种方法，在副总统职位空缺时填补空缺”。2018年9月22日星期六上午，《纽约时报》的读者一觉醒来就看到了一篇头版报道，内容是司法部副部长罗德·j·罗森斯坦(Rod J. Rosenstein)此前曾主张白宫对特朗普总统的秘密录音，“以揭露政府的混乱，他讨论招募内阁成员，援引第25修正案，以特朗普不称职为由将其解职。”鉴于最近的争议，重新审视第二十五条修正案，它的历史和目的，它是如何运作的，以及它的潜在应用，似乎是及时和恰当的。
{"title":"The Twenty-Fifth Amendment: Incapacity and Ability to Discharge the Powers and Duties of Office?","authors":"L. Trautman","doi":"10.2139/SSRN.3262019","DOIUrl":"https://doi.org/10.2139/SSRN.3262019","url":null,"abstract":"The Twenty-Fifth Amendment to the U.S. Constitution provides a mechanism for the vice president’s assumption of the presidency when it is determined that the president “is unable to discharge the powers and duties of office.” \u0000 \u0000Many instances of U.S. presidential or vice presidential incapacity have happened. Unbeknownst to the public and much of the governmental leadership at the time, for seventeen months wife Edith Wilson, with the assistance of the president’s physician and personal secretary, kept the true state of President Woodrow Wilson’s disabling health conditions secret from the American people. Wilson’s day-to-day duties had been abandoned or overseen largely by ill-equipped wife Edith, who served as the sole conduit between the president and the outside world. It is now clear that other past presidents have hidden their impaired physical and mental condition from the American public. What would have happened if John F. Kennedy or any of the other presidents, who have died in office, had continued to live for a prolonged period of time while unable to discharge the duties and responsibilities of the presidency? It was the death of President John F. Kennedy that prompted the 25th Amendment to the Constitution to gain ratification in 1967, “in part to establish a method to fill the vice presidency if it became vacant”. \u0000 \u0000On Saturday morning September 22, 2018, readers of The New York Times awoke to read a page-one story about how the deputy attorney general, Rod J. Rosenstein had previously advocated the secret White House recording of President Trump, “to expose the chaos consuming the administration, and he discussed recruiting cabinet members to invoke the 25th Amendment to remove Mr. Trump from office for being unfit.” Given this recent controversy, it seems timely and opportune to take a fresh look at the twenty-fifth Amendment, its history and purpose, how it works, and potential application.","PeriodicalId":258683,"journal":{"name":"The Cleveland State Law Review","volume":"88 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-10-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122416039","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article discusses how Wisconsin fell from grace. Once a model good government state that pioneered many democracy-enhancing laws, in a very short time, Wisconsin became a state where special interest money, most of which is undisclosed, dominates politics. This Article identifies several factors as being critical to Wisconsin’s descent. These include the state’s failure to nurture and build on the campaign finance reforms enacted in the 1970s and both the state’s and the United States Supreme Court’s failure to adequately regulate sham issue ads. As evidence of Wisconsin’s diminished status, this Article describes how several of the state’s most progressive laws have been undermined and how each of the three branches of the state’s government has been beset by scandal related to the increased importance of special interest money. Finally, this Article suggests that major change will come about only in the long term; such change will require both new campaign finance reforms and a shift in approach by the United States Supreme Court.
{"title":"How Big Money Ruined Public Life in Wisconsin","authors":"Lynn Adelman","doi":"10.2139/ssrn.3086693","DOIUrl":"https://doi.org/10.2139/ssrn.3086693","url":null,"abstract":"This Article discusses how Wisconsin fell from grace. Once a model good government state that pioneered many democracy-enhancing laws, in a very short time, Wisconsin became a state where special interest money, most of which is undisclosed, dominates politics. This Article identifies several factors as being critical to Wisconsin’s descent. These include the state’s failure to nurture and build on the campaign finance reforms enacted in the 1970s and both the state’s and the United States Supreme Court’s failure to adequately regulate sham issue ads. As evidence of Wisconsin’s diminished status, this Article describes how several of the state’s most progressive laws have been undermined and how each of the three branches of the state’s government has been beset by scandal related to the increased importance of special interest money. Finally, this Article suggests that major change will come about only in the long term; such change will require both new campaign finance reforms and a shift in approach by the United States Supreme Court.","PeriodicalId":258683,"journal":{"name":"The Cleveland State Law Review","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-06-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126629278","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Responding to the problems of mass incarceration, racial disparities in justice, and wrongful convictions, scholars have focused on prosecutorial overcharging. They have, however, neglected to address undercharging the failure to charge in entire classes of cases. Undercharging can similarly undermine the efficacy and legitimacy of the criminal justice system. While few have focused on this question in the domestic criminal law context, international law scholars have long recognized the social and structural cost for nascent democratic states when they fail to charge those responsible for the prior regime’s human rights abuses. This sort of impunity threatens the rule of law and misses the opportunity to reinforce important democratic values. This Article draws on international law scholarship to argue that there is a duty to investigate and a limited duty to charge crimes that implicate core democratic principles of equality and fairness. Police use of excessive force against unarmed African-American suspects is just this sort of crime.
{"title":"The Duty to Charge in Police Use of Excessive Force Cases","authors":"Rebecca Roiphe","doi":"10.2139/SSRN.2999755","DOIUrl":"https://doi.org/10.2139/SSRN.2999755","url":null,"abstract":"Responding to the problems of mass incarceration, racial disparities in justice, and wrongful convictions, scholars have focused on prosecutorial overcharging. They have, however, neglected to address undercharging the failure to charge in entire classes of cases. Undercharging can similarly undermine the efficacy and legitimacy of the criminal justice system. While few have focused on this question in the domestic criminal law context, international law scholars have long recognized the social and structural cost for nascent democratic states when they fail to charge those responsible for the prior regime’s human rights abuses. This sort of impunity threatens the rule of law and misses the opportunity to reinforce important democratic values. This Article draws on international law scholarship to argue that there is a duty to investigate and a limited duty to charge crimes that implicate core democratic principles of equality and fairness. Police use of excessive force against unarmed African-American suspects is just this sort of crime.","PeriodicalId":258683,"journal":{"name":"The Cleveland State Law Review","volume":"42 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-01-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114716560","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Book Review: Analyzing the Effectiveness of the Tallinn Manual’s Jus Ad Bellum Doctrine on Cyberconflict,: A NATO-Centric Approach","authors":"Terence Check","doi":"10.2139/SSRN.2347736","DOIUrl":"https://doi.org/10.2139/SSRN.2347736","url":null,"abstract":"","PeriodicalId":258683,"journal":{"name":"The Cleveland State Law Review","volume":"649 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-03-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133250733","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Electronic jurors pose new twists to an old problem. With emerging technology in mobile devices, social media, and internet research, juror misconduct exists in new shapes and forms. Many jurisdictions have made attempts to curb electronic misconduct by modifying standard jury instructions and confiscating juror cell phones. Some judges have implemented jury instructions which remind jurors to refrain from communicating about the case and conducting on-line research. However, their efforts fall short. In previous literature, practitioners, students and a few scholars have offered suggestions on modifying jury instructions to better inform jurors of prohibited misconduct. To address the overall electronic juror problem, this Article explains, from a unique judicial vantage point, that the jury system should be improved by better educating judges on emerging technology and social trends; improving jury instructions to specify changing mobile devices, social media sites and internet research with clear reasons for the prohibited conduct; encouraging attorneys to address social media and juror internet use; and engaging active jurors. This Article’s most critical recommendations include encouraging juror questioning of witnesses and adopting the Author’s specific proposed jury instruction, which identifies a detailed and comprehensive list of social media sites and internet search tools, along with compelling reasons for refraining from misconduct.
{"title":"E-Jurors: A View from the Bench","authors":"Antoinette Plogstedt","doi":"10.2139/SSRN.2278907","DOIUrl":"https://doi.org/10.2139/SSRN.2278907","url":null,"abstract":"Electronic jurors pose new twists to an old problem. With emerging technology in mobile devices, social media, and internet research, juror misconduct exists in new shapes and forms. Many jurisdictions have made attempts to curb electronic misconduct by modifying standard jury instructions and confiscating juror cell phones. Some judges have implemented jury instructions which remind jurors to refrain from communicating about the case and conducting on-line research. However, their efforts fall short. In previous literature, practitioners, students and a few scholars have offered suggestions on modifying jury instructions to better inform jurors of prohibited misconduct. To address the overall electronic juror problem, this Article explains, from a unique judicial vantage point, that the jury system should be improved by better educating judges on emerging technology and social trends; improving jury instructions to specify changing mobile devices, social media sites and internet research with clear reasons for the prohibited conduct; encouraging attorneys to address social media and juror internet use; and engaging active jurors. This Article’s most critical recommendations include encouraging juror questioning of witnesses and adopting the Author’s specific proposed jury instruction, which identifies a detailed and comprehensive list of social media sites and internet search tools, along with compelling reasons for refraining from misconduct.","PeriodicalId":258683,"journal":{"name":"The Cleveland State Law Review","volume":"44 3","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-06-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120816591","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article is a response to Professor Josh Chafetz's Impeachment & Assassination, Minnesota Law Review, Vol. 95, p. 347, 2010.This Article is a textual exploration of the Constitution’s varying usage in regard to office and officer. The Constitution uses a variety of phrases relating to office and officer, including: (A) Officer of the United States; (B) Office under the United States; (C) Office under the Authority of the United States; and (D) Officer (unmodified). The consensus position – as put forward by Professors Akhil R. Amar and Vikram D. Amar in 1995 – is that the Constitution’s varying terminology in regard to office and officer is without any meaningful distinction. This Article takes a contrary position. Officer of the United States is the most restricted of the categories listed above; Officer of the United States embraces only appointed officers in the Executive and Judicial Branches. Category (B) is wider than (A), category (C) is wider than (B), and category (D) Officer (unmodified) is the most expansive of the categories. Indeed, category (D) embraces elected officials, not merely appointed officers. If this text-sensitive framework is correct, then much of the originalist scholarship written since 1995, when the Amars put forward the current consensus position, must be abandoned, or, at least, closely reviewed. One such paper is Professor Chafetz’s Impeachment and Assassination, an influential 2010 publication. This Article critiques Chafetz’s article, conclusions, and his historical approach. And, it further shows how Professor Chafetz’s embracing the consensus position puts in motion a train of errors leading him far afield from the original public meaning of the Constitution’s impeachment-related provisions. Furthermore, if this new view is correct, then our modern understanding of constitutional provisions using office- and officer-laden language is inconsistent with the original public meaning of those clauses. Thus, in addition to the Impeachment Clause, the new view destabilizes our current understanding of the Succession Clause, the Religious Test Clause, the Incompatibility Clause, and the Removal and Disqualification Clause. This paper is largely a response to Professor Chafetz’s Minnesota Law Review publication. But it also responds to several recent publications by Professors Steven G. Calabresi (in PENNumbra) and Saikrishna B. Prakash (in the Duke Journal of Constitutional Law and Public Policy), and to a student note by Mr. David J. Shaw (in the Georgetown Law Journal).
本文是对Josh Chafetz教授的弹劾与暗杀的回应，明尼苏达州法律评论，2010年第95卷，第347页。这条是对宪法中关于职务和官员的不同用法的文本探索。《宪法》使用了各种与职务和官员有关的短语，包括:(a)美国官员;(B)美国办事处;(C)美国当局办事处;(D)高级职员(未经修改)。正如Akhil R. Amar和Vikram D. Amar教授在1995年提出的一致意见是，宪法中关于职务和官员的不同术语没有任何有意义的区别。这篇文章持相反的立场。美国官员是上述类别中最受限制的;“合众国官员”一词仅包括行政部门和司法部门的任命官员。(B)类职位比(A)类职位更宽，(C)类职位比(B)类职位更宽，(D)类职位(未经修改)是所有类别中范围最广的。事实上，(D)类包括民选官员，而不仅仅是任命的官员。如果这个文本敏感的框架是正确的，那么自1995年阿玛斯提出当前的共识立场以来，许多原创主义学术著作必须被抛弃，或者至少要仔细审查。其中一篇论文是查菲茨教授的《弹劾与暗杀》，这是一篇有影响力的2010年出版物。本文对Chafetz的文章、结论和他的历史方法进行了批评。而且，它进一步表明，查菲茨教授对共识立场的拥护如何引发了一系列错误，使他远离了宪法弹劾相关条款的原始公共含义。此外，如果这种新观点是正确的，那么我们对使用办公室和官员语言的宪法条款的现代理解与这些条款的原始公共含义不一致。因此，除了弹劾条款之外，新观点还动摇了我们目前对继承条款、宗教测试条款、不相容条款、免职及取消资格条款的理解。这篇论文主要是对Chafetz教授在《明尼苏达法律评论》上发表的文章的回应。但它也回应了史蒂文·g·卡拉布雷西(Steven G. Calabresi)教授(在PENNumbra上)和赛克里希纳·b·普拉卡什(Saikrishna B. Prakash)教授(在《杜克宪法与公共政策杂志》上)最近发表的几篇文章，以及大卫·j·肖(David J. Shaw)先生(在《乔治城法律杂志》上)的一篇学生笔记。
{"title":"Interpreting Precise Constitutional Text: The Argument for a 'New' Interpretation of the Incompatibility Clause, the Removal & Disqualification Clause, and the Religious Test Clause – A Response to Professor Josh Chafetz’s Impeachment & Assassination","authors":"S. Tillman","doi":"10.2139/SSRN.1622441","DOIUrl":"https://doi.org/10.2139/SSRN.1622441","url":null,"abstract":"This article is a response to Professor Josh Chafetz's Impeachment & Assassination, Minnesota Law Review, Vol. 95, p. 347, 2010.This Article is a textual exploration of the Constitution’s varying usage in regard to office and officer. The Constitution uses a variety of phrases relating to office and officer, including: (A) Officer of the United States; (B) Office under the United States; (C) Office under the Authority of the United States; and (D) Officer (unmodified). The consensus position – as put forward by Professors Akhil R. Amar and Vikram D. Amar in 1995 – is that the Constitution’s varying terminology in regard to office and officer is without any meaningful distinction. This Article takes a contrary position. Officer of the United States is the most restricted of the categories listed above; Officer of the United States embraces only appointed officers in the Executive and Judicial Branches. Category (B) is wider than (A), category (C) is wider than (B), and category (D) Officer (unmodified) is the most expansive of the categories. Indeed, category (D) embraces elected officials, not merely appointed officers. If this text-sensitive framework is correct, then much of the originalist scholarship written since 1995, when the Amars put forward the current consensus position, must be abandoned, or, at least, closely reviewed. One such paper is Professor Chafetz’s Impeachment and Assassination, an influential 2010 publication. This Article critiques Chafetz’s article, conclusions, and his historical approach. And, it further shows how Professor Chafetz’s embracing the consensus position puts in motion a train of errors leading him far afield from the original public meaning of the Constitution’s impeachment-related provisions. Furthermore, if this new view is correct, then our modern understanding of constitutional provisions using office- and officer-laden language is inconsistent with the original public meaning of those clauses. Thus, in addition to the Impeachment Clause, the new view destabilizes our current understanding of the Succession Clause, the Religious Test Clause, the Incompatibility Clause, and the Removal and Disqualification Clause. This paper is largely a response to Professor Chafetz’s Minnesota Law Review publication. But it also responds to several recent publications by Professors Steven G. Calabresi (in PENNumbra) and Saikrishna B. Prakash (in the Duke Journal of Constitutional Law and Public Policy), and to a student note by Mr. David J. Shaw (in the Georgetown Law Journal).","PeriodicalId":258683,"journal":{"name":"The Cleveland State Law Review","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-03-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123676698","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Ohio is among the twenty-two states that have no enabling legislation for development impact fees. But in a 2000 ruling, Homebuilders Association of Dayton and the Miami Valley, et. al. v. City of Beavercreek, a divided Ohio Supreme Court ruled that municipalities could lawfully enact impact fees under their police and “home rule” powers, provided that the fees could pass constitutional muster under a “dual rational nexus test.” On May 31, 2012, however, the Court ruled in Drees Company, et. al. v. Hamilton Township, that a development impact fee enacted by an Ohio township with “limited home rule” powers was an unconstitutional tax. The Court’s unanimous opinion in Hamilton Township was authored by Justice Paul Pfeiffer, who, twelve years before, had authored the main dissenting opinion in the Beavercreek case. This article faults the Court’s opinion invalidating the impact fees in Hamilton Township, arguing that the Court, rather than engaging in a fair-handed analysis, chose instead to rely on very limited authority to support a conclusion that appears to have been pre-determined. In particular, the article demonstrates that the Court failed even to acknowledge, let alone distinguish: (1) its earlier ruling upholding impact fees in Beavercreek and (2) the state supreme court decisions that had rejected the reasoning of the Iowa and Mississippi courts upon which the Court relied in part. The article notes that the Court’s ruling leaves Ohio with a bifurcated approach to impact fees that is perverse because it makes impact fees most defensible in municipalities, in many of which there is little new development, and thus the need for impact fees is less, and effectively prohibits their use in rapidly-developing townships where they are needed most. The article concludes that the time is long-past for the legislature to examine the policy debate on impact fees and make a decision about adopting enabling legislation for impact fees, and that the decision should be to join the majority of states that have enacted such legislation.
{"title":"The Ohio Supreme Court's Perverse Stance on Development Impact Fees and What To Do About It","authors":"A. Weinstein","doi":"10.2139/SSRN.2141428","DOIUrl":"https://doi.org/10.2139/SSRN.2141428","url":null,"abstract":"Ohio is among the twenty-two states that have no enabling legislation for development impact fees. But in a 2000 ruling, Homebuilders Association of Dayton and the Miami Valley, et. al. v. City of Beavercreek, a divided Ohio Supreme Court ruled that municipalities could lawfully enact impact fees under their police and “home rule” powers, provided that the fees could pass constitutional muster under a “dual rational nexus test.” On May 31, 2012, however, the Court ruled in Drees Company, et. al. v. Hamilton Township, that a development impact fee enacted by an Ohio township with “limited home rule” powers was an unconstitutional tax. The Court’s unanimous opinion in Hamilton Township was authored by Justice Paul Pfeiffer, who, twelve years before, had authored the main dissenting opinion in the Beavercreek case. This article faults the Court’s opinion invalidating the impact fees in Hamilton Township, arguing that the Court, rather than engaging in a fair-handed analysis, chose instead to rely on very limited authority to support a conclusion that appears to have been pre-determined. In particular, the article demonstrates that the Court failed even to acknowledge, let alone distinguish: (1) its earlier ruling upholding impact fees in Beavercreek and (2) the state supreme court decisions that had rejected the reasoning of the Iowa and Mississippi courts upon which the Court relied in part. The article notes that the Court’s ruling leaves Ohio with a bifurcated approach to impact fees that is perverse because it makes impact fees most defensible in municipalities, in many of which there is little new development, and thus the need for impact fees is less, and effectively prohibits their use in rapidly-developing townships where they are needed most. The article concludes that the time is long-past for the legislature to examine the policy debate on impact fees and make a decision about adopting enabling legislation for impact fees, and that the decision should be to join the majority of states that have enacted such legislation.","PeriodicalId":258683,"journal":{"name":"The Cleveland State Law Review","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-09-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133994888","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The article discusses how the Supreme Court erred by summarily reversing the Montana Supreme Court’s decision in Western Tradition Partnership v. AG and not revisiting their holding in Citizens United v. FEC. The article begins by discussing the holding in the Western Tradition Partnership case and analyzing both the majority and dissenting opinions. The article then analyzes how the Montana Supreme Court distinguished Citizens United, with the Court specifically looking at the “unique” political history in Montana and finding that Montana’s ban on corporate independent political spending served a compelling state interest and was narrowly tailored to that interest. The article then transitions into an empirical study of the current campaign finance landscape by specifically looking at: states’ unique histories of corruption, the lack of transparency with regard to corporate political expenditures, the public perception of corruption in corporate political spending practices, the independence of super PACs, the influence of political dark money and 501(c)(4) organizations being used to circumvent campaign finance laws, and the use of shell corporations to circumvent campaign finance disclosure rules and Federal tax laws. The article concludes by listing additional arguments in favor of the Supreme Court revisiting Citizens United including: the breadth of the First Amendment, the idea of corporations being “creatures of the state,” the ability of PACs to allow corporate political participation, the issue of a state’s power to exclude foreign corporations from participation in their democratic political institutions, shareholder protection, the treatment of public unions, and the Supreme Court’s history of altering constitutional doctrine when its understanding of the doctrine’s factual underpinnings no longer appear to be accurate.
{"title":"Buying the Electorate: An Empirical Study of the Current Campaign Finance Landscape and How the Supreme Court Erred by Not Revisiting Citizens United","authors":"I. Nelson","doi":"10.2139/ssrn.2101309","DOIUrl":"https://doi.org/10.2139/ssrn.2101309","url":null,"abstract":"The article discusses how the Supreme Court erred by summarily reversing the Montana Supreme Court’s decision in Western Tradition Partnership v. AG and not revisiting their holding in Citizens United v. FEC. The article begins by discussing the holding in the Western Tradition Partnership case and analyzing both the majority and dissenting opinions. The article then analyzes how the Montana Supreme Court distinguished Citizens United, with the Court specifically looking at the “unique” political history in Montana and finding that Montana’s ban on corporate independent political spending served a compelling state interest and was narrowly tailored to that interest. The article then transitions into an empirical study of the current campaign finance landscape by specifically looking at: states’ unique histories of corruption, the lack of transparency with regard to corporate political expenditures, the public perception of corruption in corporate political spending practices, the independence of super PACs, the influence of political dark money and 501(c)(4) organizations being used to circumvent campaign finance laws, and the use of shell corporations to circumvent campaign finance disclosure rules and Federal tax laws. The article concludes by listing additional arguments in favor of the Supreme Court revisiting Citizens United including: the breadth of the First Amendment, the idea of corporations being “creatures of the state,” the ability of PACs to allow corporate political participation, the issue of a state’s power to exclude foreign corporations from participation in their democratic political institutions, shareholder protection, the treatment of public unions, and the Supreme Court’s history of altering constitutional doctrine when its understanding of the doctrine’s factual underpinnings no longer appear to be accurate.","PeriodicalId":258683,"journal":{"name":"The Cleveland State Law Review","volume":"47 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-07-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114692142","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Judges typically decide constitutional cases by referring to one or more legal precedents, rules, tests, principles, doctrines, or policies. This Article recommends supplementing this standard approach with fully legitimate and appropriate attention to what many cultures have long recognized as the four basic cardinal virtues of practical wisdom or reasonable prudence, courage or fortitude, temperance or reasonable self-restraint, and justice as the disposition to give everyone their due. The Article illustrates the legitimacy and usefulness of this supplementary approach, with judicial attention being paid either to government actors or to some broader public, in a range of important constitutional cases. Part of the justification for this Article’s recommended approach is drawn directly from reflection on the case law, but the Article also draws upon philosophical discussions of the basic virtues from many cultures in order to address a number of possible critical concerns.
{"title":"Constitutional Cases and the Four Cardinal Virtues","authors":"R. Wright, R. McKinney","doi":"10.2139/SSRN.2019958","DOIUrl":"https://doi.org/10.2139/SSRN.2019958","url":null,"abstract":"Judges typically decide constitutional cases by referring to one or more legal precedents, rules, tests, principles, doctrines, or policies. This Article recommends supplementing this standard approach with fully legitimate and appropriate attention to what many cultures have long recognized as the four basic cardinal virtues of practical wisdom or reasonable prudence, courage or fortitude, temperance or reasonable self-restraint, and justice as the disposition to give everyone their due. The Article illustrates the legitimacy and usefulness of this supplementary approach, with judicial attention being paid either to government actors or to some broader public, in a range of important constitutional cases. Part of the justification for this Article’s recommended approach is drawn directly from reflection on the case law, but the Article also draws upon philosophical discussions of the basic virtues from many cultures in order to address a number of possible critical concerns.","PeriodicalId":258683,"journal":{"name":"The Cleveland State Law Review","volume":"12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-03-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132864577","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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