To the woes of the victims of American over-criminalization, we can add deprivation of the suitable tools for self-defense during national emergency and civil unrest. Federal law disarms “unlawful users” of controlled substances (including medical marijuana), and imposes a permanent firearms ban on substantially all those with prior felony convictions. A notable exception is made for white-collar criminals with felony violations of antitrust and certain business practice statutes. The constitutionality of these restrictions typically is founded on the view that one is tainted as “non-virtuous” for any serious criminal conviction, which includes any felony conviction. Using extensive sampling, this article shows that reliance on this theory is discredited outside the context of the Second Amendment. Modern reliance on the theory, outside the context of firearms rights, has been very infrequent and has been used to validate odious statutes, in cases no longer good law. The unsound judicial effort to derive the validation of these firearms bans from Founding-Era firearms restrictions builds on erroneous premises. The Founding-Era restrictions, detailed in this article, were tailored to the circumstances and do not provide a foundation for the broad, essentially permanent bans that federal law provides and that courts typically validate.
{"title":"The Odious Intellectual Company of Authority Restricting Second Amendment Rights to the 'Virtuous'","authors":"R. R. Barondes","doi":"10.2139/ssrn.3689221","DOIUrl":"https://doi.org/10.2139/ssrn.3689221","url":null,"abstract":"To the woes of the victims of American over-criminalization, we can add deprivation of the suitable tools for self-defense during national emergency and civil unrest. Federal law disarms “unlawful users” of controlled substances (including medical marijuana), and imposes a permanent firearms ban on substantially all those with prior felony convictions. A notable exception is made for white-collar criminals with felony violations of antitrust and certain business practice statutes. \u0000 \u0000The constitutionality of these restrictions typically is founded on the view that one is tainted as “non-virtuous” for any serious criminal conviction, which includes any felony conviction. Using extensive sampling, this article shows that reliance on this theory is discredited outside the context of the Second Amendment. Modern reliance on the theory, outside the context of firearms rights, has been very infrequent and has been used to validate odious statutes, in cases no longer good law. \u0000 \u0000The unsound judicial effort to derive the validation of these firearms bans from Founding-Era firearms restrictions builds on erroneous premises. The Founding-Era restrictions, detailed in this article, were tailored to the circumstances and do not provide a foundation for the broad, essentially permanent bans that federal law provides and that courts typically validate.","PeriodicalId":387942,"journal":{"name":"Texas Review of Law and Politics","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2020-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125217574","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}
Article II imposes a duty on the President unlike any other in the Constitution: he “shall take Care that the Laws be faithfully executed.” More precisely, it imposes four distinct but interconnected duties. First, the imperative “shall” commands the president to execute the laws. Second, in doing so the President must act with “care.” Third, the object of that duty is “the Laws” enacted by Congress. Fourth, in executing the laws with care, the President must act in good “faith.” A careful examination of the four elements of the “Take Care” clause provides a comprehensive framework to determine whether the Executive has complied with his constitutional duty. This article assesses the constitutionality of President Obama's “Deferred Action for Parental Accountability” (DAPA) on immigration through this lens of the “Take Care” clause.First, DAPA is an extremely “broad policy” that was “consciously and expressly adopted” not as a means to enforce the laws of Congress, but to exempt nearly 40% of undocumented aliens in the United States-even those who were not previously subject to any previous enforcement action-from the threat of removal, and to provide them with work authorization. Second, DAPA was implemented without “care” for the immigration laws as it displaced officer discretion, both procedurally and substantively, with the Secretary's blanket policy to turn meaningful review into a “rubber stamp.” Third, DAPA finds refuge in none of the three tiers identified in Justice Jackson's opinion Youngstown. Congress has and continues to oppose the scope of this executive action. Further, DAPA is not consonant with long-standing congressional policy towards deferred action. Previous uses were typically ancillary to statutory grants of lawful status or responsive to extraordinary equities on a very limited scale. In this bottom rung of authority, presidential power is at its “lowest ebb,” unentitled to a presumption of constitutionality. Fourth DAPA was not a good faith mistake of law, but a bad faith deliberate deviation. Implementing executive action to achieve several of the key statutory goals of laws Congress voted against reflects a deliberate attempt to circumnavigate around an uncooperative legislature. Exacerbating this conclusion is the fact that prior to the defeats of DACA and DAPA, the “sole organ” of the Executive Branch consistently stated that he lacked the power to defer the deportations of millions by himself.This pattern of behavior amounts to a deliberate effort to act not in good faith, but in an effort to undermine the Laws of Congress. The duty under Article II has been violated.Part I of this series addresses whether Congress has acquiesced to deferred action. Josh Blackman, The Constitutionality of DAPA Part I: Congressional Acquiescence to Deferred Action, 103 Georgetown Law Journal Online (Forthcoming 2015), available at http://ssrn.com/abstract= 2545544.
{"title":"The Constitutionality of DAPA Part II: Faithfully Executing the Law","authors":"J. Blackman","doi":"10.2139/SSRN.2545558","DOIUrl":"https://doi.org/10.2139/SSRN.2545558","url":null,"abstract":"Article II imposes a duty on the President unlike any other in the Constitution: he “shall take Care that the Laws be faithfully executed.” More precisely, it imposes four distinct but interconnected duties. First, the imperative “shall” commands the president to execute the laws. Second, in doing so the President must act with “care.” Third, the object of that duty is “the Laws” enacted by Congress. Fourth, in executing the laws with care, the President must act in good “faith.” A careful examination of the four elements of the “Take Care” clause provides a comprehensive framework to determine whether the Executive has complied with his constitutional duty. This article assesses the constitutionality of President Obama's “Deferred Action for Parental Accountability” (DAPA) on immigration through this lens of the “Take Care” clause.First, DAPA is an extremely “broad policy” that was “consciously and expressly adopted” not as a means to enforce the laws of Congress, but to exempt nearly 40% of undocumented aliens in the United States-even those who were not previously subject to any previous enforcement action-from the threat of removal, and to provide them with work authorization. Second, DAPA was implemented without “care” for the immigration laws as it displaced officer discretion, both procedurally and substantively, with the Secretary's blanket policy to turn meaningful review into a “rubber stamp.” Third, DAPA finds refuge in none of the three tiers identified in Justice Jackson's opinion Youngstown. Congress has and continues to oppose the scope of this executive action. Further, DAPA is not consonant with long-standing congressional policy towards deferred action. Previous uses were typically ancillary to statutory grants of lawful status or responsive to extraordinary equities on a very limited scale. In this bottom rung of authority, presidential power is at its “lowest ebb,” unentitled to a presumption of constitutionality. Fourth DAPA was not a good faith mistake of law, but a bad faith deliberate deviation. Implementing executive action to achieve several of the key statutory goals of laws Congress voted against reflects a deliberate attempt to circumnavigate around an uncooperative legislature. Exacerbating this conclusion is the fact that prior to the defeats of DACA and DAPA, the “sole organ” of the Executive Branch consistently stated that he lacked the power to defer the deportations of millions by himself.This pattern of behavior amounts to a deliberate effort to act not in good faith, but in an effort to undermine the Laws of Congress. The duty under Article II has been violated.Part I of this series addresses whether Congress has acquiesced to deferred action. Josh Blackman, The Constitutionality of DAPA Part I: Congressional Acquiescence to Deferred Action, 103 Georgetown Law Journal Online (Forthcoming 2015), available at http://ssrn.com/abstract= 2545544.","PeriodicalId":387942,"journal":{"name":"Texas Review of Law and Politics","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2015-01-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130381694","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}
Pub Date : 2013-04-01DOI: 10.1007/978-3-030-39605-3_5
Allen P Mendenhall
{"title":"Justice Holmes and Conservatism","authors":"Allen P Mendenhall","doi":"10.1007/978-3-030-39605-3_5","DOIUrl":"https://doi.org/10.1007/978-3-030-39605-3_5","url":null,"abstract":"","PeriodicalId":387942,"journal":{"name":"Texas Review of Law and Politics","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2013-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115146912","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 INVISIBLE CONSTITUTION. Laurence H. Tribe. Oxford University Press, 2008. Pp. 278. $19.95. Perhaps no academic is more closely associated with the idea of an "invisible" constitution than Harvard Law School's Laurence H. Tribe. Through his public advocacy, scholarship, legal advocacy, and teaching, Tribe has made great strides in instantiating the idea of the legitimacy of the Constitution that the courts enforce in place of the one the people ratified. His latest book is intended to explain the contours of this Constitution, lay out some fanciful metaphors useful in applying "law" in this way, and advocate further extension of Tribe's analysis. Geoffrey R. Stone's "Editor's Note" summarizes the book by saying, "As Tribe notes, the visible constitution 'floats in a vast and deep - and, crucially, invisible - ocean of ideas, propositions, recovered memories, and imagined experiences.'" Stone adds, "Indeed, as Tribe demonstrates, many of our most fundamental constitutional principles are not only not stated in the text of the Constitution, but cannot even be inferred from the visible Constitution in any of the usual ways we interpret texts."2 One might conclude from all of this that "many of our fundamental constitutional principles" are not really constitutional at all. He might ask how the "we" of Stone's unselfconscious statements came to enunciate, let alone ratify, them.3 But that is not Tribe's rhetorical style. Rather, Tribe's point is, in my understanding, that if the Constitution does not itself say that the Constitution is in English, that the symbols composing the document are symbols used in written English, and that the meaning of the words used in the Constitution may be determined in the ways commonly accepted by speakers of English, then external authority must be employed in reading the Constitution. Having elicited the unavoidable concession that the Constitution is an artifact of a particular culture, outside of which it would be nothing more than incomprehensible marks on a page, Tribe feels free to conduct a philosophical seminar in which his preferred policy outcomes become "our" Constitution. (Of course, Tribe presents these ideas far less directly than I do, but this is what his argument comes to.) Careful observers will recognize that this precis of The Invisible Constitution describes much of the constitutional history of the past thirty years. Tribe kicks off his tome with a description of his recent experience as a fifth-grade acquaintance's show-and-tell exhibit.4 The young man took Tribe to class to speak as one who teaches about the Constitution, advises people in foreign countries on establishing constitutions, and argues cases in the Supreme Court.5 As Tribe describes it, this session ended with his authence's fascination with the idea that there should be a dispute about the legitimacy of the Twenty-Seventh Amendment.6 If the subject could mesmerize pre-pubescents, Tribe reasoned, why not develop it at length f
看不见的体质。劳伦斯·h·特赖布。牛津大学出版社，2008。278页。19.95美元。也许没有哪个学者比哈佛大学法学院的劳伦斯·h·特赖布(Laurence H. Tribe)与“隐形宪法”的概念联系得更紧密了。通过他的公共倡导、学术研究、法律倡导和教学，特里布在证明宪法的合法性方面取得了巨大的进步，宪法的合法性是由法院执行的，而不是由人民批准的。他的最新著作旨在解释这一宪法的轮廓，列出一些在以这种方式应用“法律”时有用的奇特隐喻，并主张进一步扩展Tribe的分析。杰弗里·r·斯通(Geoffrey R. Stone)在《编者注》(Editor’s Note)中这样总结这本书:“正如特里布(Tribe)所指出的，看得见的宪法‘漂浮在一个巨大而深刻的——关键是看不见的——由思想、主张、恢复的记忆和想象的经历组成的海洋中。’”斯通补充道，“事实上，正如《部落》所证明的那样，我们许多最基本的宪法原则不仅没有在宪法文本中规定，而且甚至不能以我们解释文本的任何通常方式从可见的宪法中推断出来。从所有这些可以得出结论，“我们的许多基本宪法原则”根本就不符合宪法。他可能会问，斯通那些无意识的言论中的“我们”是如何表达出来的，更不用说认可它们了但这不是部落的修辞风格。相反，依我的理解，Tribe的观点是，如果宪法本身没有规定宪法是英文的，构成文件的符号是书面英语中使用的符号，并且宪法中使用的单词的含义可以以说英语的人普遍接受的方式确定，那么必须使用外部权威来阅读宪法。在引出了不可避免的让步，即宪法是一种特定文化的产物，在这种文化之外，它只不过是一页上难以理解的标记，部落觉得可以自由地进行哲学研讨会，在这个研讨会上，他喜欢的政策结果成为“我们的”宪法。(当然，Tribe的这些观点远不如我直接，但这就是他的论点。)细心的观察者会发现，《看不见的宪法》的这句话描述了过去三十年的大部分宪法历史。部落在书的开头描述了他最近的经历，作为一个五年级的熟人的展示和讲述展览年轻人把部落类作为一个教授谈论宪法,建议人们在国外建立宪法,并认为最高Court.5部落中的情况下描述,这次会议结束,他authence的迷恋,应该有一个争论的合法性二十七Amendment.6如果主题可以让大片着迷,部落的理由,为什么不制定一个更成熟的观众在长度?因此，有了这本书Tribe将他的作品分为五个部分，每个部分由许多细分部分组成。第一本书的题目很简单，叫做“超越可见”。在第一部分的开头，部落问道:“宪法中(官员们)宣誓要维护的是什么?我们(或他们)怎么知道?仔细阅读就能找到答案吗?阅读它就足以得到很多线索吗?这本书应该有助于解决这类问题。“嗯，是的，应该是这样。但真的是这样吗?Tribe继续说道:“首先，每个人都知道美利坚合众国有一部成文宪法。”讨论国会于1789年向各州提出，但直到1992年才被批准的第二十七修正案的问题时，Tribe认为，即使是书面文件中的内容也是有争议的部落引用大法官安东宁·斯卡利亚(根据部落的说法，显然反复无常)的说法，即第二十七修正案在第38个州批准后并没有成为宪法的一部分，以说明部落自己的观点，即即使是成文宪法是什么，也没有普遍的共识。…
{"title":"The Invisible Constitution","authors":"K. Gutzman","doi":"10.5860/choice.46-7089","DOIUrl":"https://doi.org/10.5860/choice.46-7089","url":null,"abstract":"THE INVISIBLE CONSTITUTION. Laurence H. Tribe. Oxford University Press, 2008. Pp. 278. $19.95. Perhaps no academic is more closely associated with the idea of an \"invisible\" constitution than Harvard Law School's Laurence H. Tribe. Through his public advocacy, scholarship, legal advocacy, and teaching, Tribe has made great strides in instantiating the idea of the legitimacy of the Constitution that the courts enforce in place of the one the people ratified. His latest book is intended to explain the contours of this Constitution, lay out some fanciful metaphors useful in applying \"law\" in this way, and advocate further extension of Tribe's analysis. Geoffrey R. Stone's \"Editor's Note\" summarizes the book by saying, \"As Tribe notes, the visible constitution 'floats in a vast and deep - and, crucially, invisible - ocean of ideas, propositions, recovered memories, and imagined experiences.'\" Stone adds, \"Indeed, as Tribe demonstrates, many of our most fundamental constitutional principles are not only not stated in the text of the Constitution, but cannot even be inferred from the visible Constitution in any of the usual ways we interpret texts.\"2 One might conclude from all of this that \"many of our fundamental constitutional principles\" are not really constitutional at all. He might ask how the \"we\" of Stone's unselfconscious statements came to enunciate, let alone ratify, them.3 But that is not Tribe's rhetorical style. Rather, Tribe's point is, in my understanding, that if the Constitution does not itself say that the Constitution is in English, that the symbols composing the document are symbols used in written English, and that the meaning of the words used in the Constitution may be determined in the ways commonly accepted by speakers of English, then external authority must be employed in reading the Constitution. Having elicited the unavoidable concession that the Constitution is an artifact of a particular culture, outside of which it would be nothing more than incomprehensible marks on a page, Tribe feels free to conduct a philosophical seminar in which his preferred policy outcomes become \"our\" Constitution. (Of course, Tribe presents these ideas far less directly than I do, but this is what his argument comes to.) Careful observers will recognize that this precis of The Invisible Constitution describes much of the constitutional history of the past thirty years. Tribe kicks off his tome with a description of his recent experience as a fifth-grade acquaintance's show-and-tell exhibit.4 The young man took Tribe to class to speak as one who teaches about the Constitution, advises people in foreign countries on establishing constitutions, and argues cases in the Supreme Court.5 As Tribe describes it, this session ended with his authence's fascination with the idea that there should be a dispute about the legitimacy of the Twenty-Seventh Amendment.6 If the subject could mesmerize pre-pubescents, Tribe reasoned, why not develop it at length f","PeriodicalId":387942,"journal":{"name":"Texas Review of Law and Politics","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2009-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130627076","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}
There are 59 nations for which data about per capita gun ownership are available. This Article examines the relationship between gun density and several measures of freedom and prosperity: the Freedom House ratings of political rights and civil liberty, the Transparency International Perceived Corruption Index, the World Bank Purchasing Power Parity ratings, and the Heritage Foundation Index of Economic Freedom. The data suggest that the relationships between gun ownership rates and these other measures are complex. The data show that (although exceptions can be found) the nations with the highest rates of gun ownership tend to have greater political and civil freedom, greater economic freedom and prosperity, and much less corruption than other nations. The relationship only exists for high-ownership countries. Countries with medium rates of gun density generally scored no better or worse than countries with the lowest levels of per capita gun ownership.
{"title":"Is There a Relationship between Guns and Freedom? Comparative Results from 59 Nations","authors":"D. Kopel, C. Moody, H. Nemerov","doi":"10.2139/SSRN.1090441","DOIUrl":"https://doi.org/10.2139/SSRN.1090441","url":null,"abstract":"There are 59 nations for which data about per capita gun ownership are available. This Article examines the relationship between gun density and several measures of freedom and prosperity: the Freedom House ratings of political rights and civil liberty, the Transparency International Perceived Corruption Index, the World Bank Purchasing Power Parity ratings, and the Heritage Foundation Index of Economic Freedom. The data suggest that the relationships between gun ownership rates and these other measures are complex. The data show that (although exceptions can be found) the nations with the highest rates of gun ownership tend to have greater political and civil freedom, greater economic freedom and prosperity, and much less corruption than other nations. The relationship only exists for high-ownership countries. Countries with medium rates of gun density generally scored no better or worse than countries with the lowest levels of per capita gun ownership.","PeriodicalId":387942,"journal":{"name":"Texas Review of Law and Politics","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2008-12-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115017721","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}
During the modern era of self-determination as the guiding principle of Indian law, the federal government is meant to be guiding tribes to self-government, understood as including well-developed constitutional and accountable forms of government, the rule of law, and a separation of powers; to effectiveness in government, the ability to provide appropriate services to their people competently, efficiently, and without corruption; and to economic prosperity. This article identifies three interlocking perversities in Indian law that interfere with these goals. 1. Because reservation governments lack criminal jurisdiction over non-Indians, their ability to protect the safety of residents (Indian or non-Indian) is eroded by any influx of non-Indians. Since economic growth is likely to both require and encourage inflows of non-Indian employees, firms, and consumers, there is an inverse relationship between tribes' ability to facilitate economic prosperity and their ability to fulfill the most basic governing functions of protection of life, limb, and property. Autarky becomes the only way to retain control over essential criminal matters. 2. The boundaries and civil and regulatory jurisdiction of reservation governments are neither stable nor entrenched; and they are vulnerable to diminution in response to the presence of (especially resident) non-Indians. Again, inflows of non-Indians imperil the jurisdictional autonomy of reservation governments. This encourages a reverse Tiebout dynamic. Ordinarily local jurisdictions have incentives to provide good policies, uncorrupt government, stable laws, and prosperity-encouraging fiscal arrangements, because those will lead to an inflow of residents and firms, increasing the jurisdiction's tax revenue. The incentives faced by a reservation government run in nearly the opposite direction. If new residents or firms are non-Indian, and especially if they buy land, they diminish the reservation's jurisdiction and potentially its tax base as well. 3. A tribe seeking to preserve its civil jurisdiction is well-served to concentrate economic activity in tribally-owned enterprises. Moreover, for reasons of tax preference and immunity from state taxation and regulation, tribally-owned enterprises have a large de facto subsidy compared with private, even if Indian-owned, firms on reservations. Indian polities are not immune to the familiar effects of state ownership and control of major economic firms. Some of these impair the political maturation of tribal governments, such as the difficulty of maintaining a free and independent press when the polity typically owns the newspapers as well as the firms that advertise in them. More of them impair the economic development that is supposed to be a central goal of Indian policy; political connections and short-term success at serving as de facto jobs programs become more important than productivity or efficiency to firms' survival. Moreover, the development of gambling-cen
{"title":"Three Perversities of Indian Law","authors":"Jacob T. Levy","doi":"10.2139/SSRN.921470","DOIUrl":"https://doi.org/10.2139/SSRN.921470","url":null,"abstract":"During the modern era of self-determination as the guiding principle of Indian law, the federal government is meant to be guiding tribes to self-government, understood as including well-developed constitutional and accountable forms of government, the rule of law, and a separation of powers; to effectiveness in government, the ability to provide appropriate services to their people competently, efficiently, and without corruption; and to economic prosperity. This article identifies three interlocking perversities in Indian law that interfere with these goals. 1. Because reservation governments lack criminal jurisdiction over non-Indians, their ability to protect the safety of residents (Indian or non-Indian) is eroded by any influx of non-Indians. Since economic growth is likely to both require and encourage inflows of non-Indian employees, firms, and consumers, there is an inverse relationship between tribes' ability to facilitate economic prosperity and their ability to fulfill the most basic governing functions of protection of life, limb, and property. Autarky becomes the only way to retain control over essential criminal matters. 2. The boundaries and civil and regulatory jurisdiction of reservation governments are neither stable nor entrenched; and they are vulnerable to diminution in response to the presence of (especially resident) non-Indians. Again, inflows of non-Indians imperil the jurisdictional autonomy of reservation governments. This encourages a reverse Tiebout dynamic. Ordinarily local jurisdictions have incentives to provide good policies, uncorrupt government, stable laws, and prosperity-encouraging fiscal arrangements, because those will lead to an inflow of residents and firms, increasing the jurisdiction's tax revenue. The incentives faced by a reservation government run in nearly the opposite direction. If new residents or firms are non-Indian, and especially if they buy land, they diminish the reservation's jurisdiction and potentially its tax base as well. 3. A tribe seeking to preserve its civil jurisdiction is well-served to concentrate economic activity in tribally-owned enterprises. Moreover, for reasons of tax preference and immunity from state taxation and regulation, tribally-owned enterprises have a large de facto subsidy compared with private, even if Indian-owned, firms on reservations. Indian polities are not immune to the familiar effects of state ownership and control of major economic firms. Some of these impair the political maturation of tribal governments, such as the difficulty of maintaining a free and independent press when the polity typically owns the newspapers as well as the firms that advertise in them. More of them impair the economic development that is supposed to be a central goal of Indian policy; political connections and short-term success at serving as de facto jobs programs become more important than productivity or efficiency to firms' survival. Moreover, the development of gambling-cen","PeriodicalId":387942,"journal":{"name":"Texas Review of Law and Politics","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2006-07-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124172429","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}
Fetal Pain laws have been passed in various states and proposed in Congress. These informed consent-type statutes require abortion physicians to provide a pregnant woman seeking an abortion with information explaining the existence of fetal pain and allowing the woman to obtain direct anesthesia for her unborn child. This article argues that such legislation should survive the heightened judicial scrutiny that has been applied to legislative fact-finding. The article focuses on the proposed federal "Unborn Child Pain Awareness Act of 2005," which is similar to most state legislation. It describes the “new” judicial scrutiny of legislative fact-finding and isolates four “deference factors” that courts often use when evaluating these “facts.” The article examines the medical evidence regarding fetal pain and concludes that such legislation should survive judicial scrutiny.
{"title":"Easing Abortion's Pain: Can Fetal Pain Legislation Survive the New Judicial Scrutiny of Legislative Fact-Finding?","authors":"A. Kolenc","doi":"10.2139/SSRN.2206261","DOIUrl":"https://doi.org/10.2139/SSRN.2206261","url":null,"abstract":"Fetal Pain laws have been passed in various states and proposed in Congress. These informed consent-type statutes require abortion physicians to provide a pregnant woman seeking an abortion with information explaining the existence of fetal pain and allowing the woman to obtain direct anesthesia for her unborn child. This article argues that such legislation should survive the heightened judicial scrutiny that has been applied to legislative fact-finding. The article focuses on the proposed federal \"Unborn Child Pain Awareness Act of 2005,\" which is similar to most state legislation. It describes the “new” judicial scrutiny of legislative fact-finding and isolates four “deference factors” that courts often use when evaluating these “facts.” The article examines the medical evidence regarding fetal pain and concludes that such legislation should survive judicial scrutiny.","PeriodicalId":387942,"journal":{"name":"Texas Review of Law and Politics","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2006-01-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134116376","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 interpretation of state constitutions, like the interpretation of the federal Constitution, should be rooted in the text and original understanding of the document. This similarity in approach does not mean that interpretations of a state constitution should mirror those of the federal Constitution. Fidelity to a text requires an understanding of the nature of the text being interpreted. One approaches a poem differently than a statute, and state constitutions are not simply miniature versions of the United States Constitution. Rather, they differ from their federal counterpart in crucial respects that affect how a jurist, public official, or citizen should interpret them. This article details some of the important differences between state constitutions and their federal counterpart. It also highlights some of the implications of these differences, especially as applied to state constitutional interpretation with regard to text and original understanding. The article ends with a few illustrative examples. State constitutions are distinctive in their origins. The United States Constitution is a product of the late eighteenth century and is infused with the political thought of that era. The majority of current state constitutions, in contrast, were adopted in the late nineteenth century, and nine were adopted after I960.1 State constitutions thus have very different sets of founders, and those founders confronted different sets of problems when drafting their respective constitutions. Moreover, the prevailing understanding of political life and the problems of republican government were different in the late nineteenth century than in the late eighteenth century and different again in the mid -twentieth century. In interpreting state constitutions, it is a mistake to assume that state constitutions reflect the same political theory found in the federal Constitution. State constitutions are likewise distinctive in their legal premises. The federal Constitution is understood as a grant of power, and the government it creates is limited to those powers granted to it.2 In contrast, state governments have historically been understood as possessing plenary legislative power.3 In view of this, state constitutions operate primarily as documents of limitation, placing limits on state governments rather than granting powers to them. Because state legislative power exists in the absence of constitutional limitations and because state courts have characteristically interpreted such limitations narrowly, many state constitution -makers have found it necessary to elaborate in considerable detail the restrictions that they sought to impose on state legislatures.4 This in turn helps to explain why many state constitutions are very lengthy documents with at least nine state constitutions containing more than 45,000 words.5 Thus, state constitutions offer textualists a lot of text to interpret. Another distinctive aspect of state constitutional design deserves
{"title":"State Constitutional Interpretation","authors":"G. Tarr","doi":"10.2307/j.ctv39x7v2.9","DOIUrl":"https://doi.org/10.2307/j.ctv39x7v2.9","url":null,"abstract":"The interpretation of state constitutions, like the interpretation of the federal Constitution, should be rooted in the text and original understanding of the document. This similarity in approach does not mean that interpretations of a state constitution should mirror those of the federal Constitution. Fidelity to a text requires an understanding of the nature of the text being interpreted. One approaches a poem differently than a statute, and state constitutions are not simply miniature versions of the United States Constitution. Rather, they differ from their federal counterpart in crucial respects that affect how a jurist, public official, or citizen should interpret them. This article details some of the important differences between state constitutions and their federal counterpart. It also highlights some of the implications of these differences, especially as applied to state constitutional interpretation with regard to text and original understanding. The article ends with a few illustrative examples. State constitutions are distinctive in their origins. The United States Constitution is a product of the late eighteenth century and is infused with the political thought of that era. The majority of current state constitutions, in contrast, were adopted in the late nineteenth century, and nine were adopted after I960.1 State constitutions thus have very different sets of founders, and those founders confronted different sets of problems when drafting their respective constitutions. Moreover, the prevailing understanding of political life and the problems of republican government were different in the late nineteenth century than in the late eighteenth century and different again in the mid -twentieth century. In interpreting state constitutions, it is a mistake to assume that state constitutions reflect the same political theory found in the federal Constitution. State constitutions are likewise distinctive in their legal premises. The federal Constitution is understood as a grant of power, and the government it creates is limited to those powers granted to it.2 In contrast, state governments have historically been understood as possessing plenary legislative power.3 In view of this, state constitutions operate primarily as documents of limitation, placing limits on state governments rather than granting powers to them. Because state legislative power exists in the absence of constitutional limitations and because state courts have characteristically interpreted such limitations narrowly, many state constitution -makers have found it necessary to elaborate in considerable detail the restrictions that they sought to impose on state legislatures.4 This in turn helps to explain why many state constitutions are very lengthy documents with at least nine state constitutions containing more than 45,000 words.5 Thus, state constitutions offer textualists a lot of text to interpret. Another distinctive aspect of state constitutional design deserves","PeriodicalId":387942,"journal":{"name":"Texas Review of Law and Politics","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2004-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127415726","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 considers the constitutional case for the impeachability of federal officers after they have left office. As a practical matter, while it may rarely be worthwhile to pursue a late impeachment (as with regular impeachment), this does not change the fact that it can be done, or that certain facts may make it desirable. The article principally argues that: (1) Late impeachment was practiced in England and, unlike other aspects of English impeachment, was never explicitly ruled out in America. Indeed, some state constitutions made late impeachability explicit, or even required. (2) Structurally, impeachment is designed not just to remove but to deter, and this effect would be severely undermined if it faded away near the end of a term. Convicted impeachees can be disqualified from future federal office, an important punishment that should not be automatically mooted if the officer resigns or the president removes him. (3) The precedents are mixed, but the Senate has approved late impeachment. Senate opponents of late impeachment have not prevented late trials, and they cannot alter the formal declaration of a majority of the Senate in one case that officers can indeed be impeached after they have left office.
{"title":"The Constitutional Case for the Impeachability of Former Federal Officials: An Analysis of the Law, History, and Practice of Late Impeachment","authors":"B. Kalt","doi":"10.2139/SSRN.286277","DOIUrl":"https://doi.org/10.2139/SSRN.286277","url":null,"abstract":"This article considers the constitutional case for the impeachability of federal officers after they have left office. As a practical matter, while it may rarely be worthwhile to pursue a late impeachment (as with regular impeachment), this does not change the fact that it can be done, or that certain facts may make it desirable. The article principally argues that: (1) Late impeachment was practiced in England and, unlike other aspects of English impeachment, was never explicitly ruled out in America. Indeed, some state constitutions made late impeachability explicit, or even required. (2) Structurally, impeachment is designed not just to remove but to deter, and this effect would be severely undermined if it faded away near the end of a term. Convicted impeachees can be disqualified from future federal office, an important punishment that should not be automatically mooted if the officer resigns or the president removes him. (3) The precedents are mixed, but the Senate has approved late impeachment. Senate opponents of late impeachment have not prevented late trials, and they cannot alter the formal declaration of a majority of the Senate in one case that officers can indeed be impeached after they have left office.","PeriodicalId":387942,"journal":{"name":"Texas Review of Law and Politics","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2001-10-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126970123","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}
Bankruptcy law is generally thought of as being purely economic in nature. But personal bankruptcy is also a form of post-contractual opportunism that reflects a moral decision to allow an individual to repudiate a promise of repayment. Thus, the bankruptcy decision is fraught with moral significance regarding promise-keeping and reciprocity. Reciprocity, it is argued, is the cornerstone of a free economy, healthy civil society, and democratic governance. Rampant personal bankruptcy, it is argued, frays these bonds of reciprocity that are necessary for a free, responsible, and self-governing society.
{"title":"Bankruptcy Law as Social Legislation","authors":"Todd J. Zywicki","doi":"10.2139/SSRN.273988","DOIUrl":"https://doi.org/10.2139/SSRN.273988","url":null,"abstract":"Bankruptcy law is generally thought of as being purely economic in nature. But personal bankruptcy is also a form of post-contractual opportunism that reflects a moral decision to allow an individual to repudiate a promise of repayment. Thus, the bankruptcy decision is fraught with moral significance regarding promise-keeping and reciprocity. Reciprocity, it is argued, is the cornerstone of a free economy, healthy civil society, and democratic governance. Rampant personal bankruptcy, it is argued, frays these bonds of reciprocity that are necessary for a free, responsible, and self-governing society.","PeriodicalId":387942,"journal":{"name":"Texas Review of Law and Politics","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2001-07-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126807936","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}
京公网安备 11010802042870号
京ICP备2023020795号-1
扫码关注我们
求助内容：
应助结果提醒方式：