The Constitution's requirement that federal taxation be "uniform throughout the United States" precludes explicit conditioning of federal taxation upon state political identity. That limitation upon taxation informs the Constitution's obverse requirement that federal spending be for the "common Defence and general Welfare" of the United States. A state's lawful policy choices are elements of its political identity. Conditions on federal spending which explicitly target elements of a state's political identity violate the Constitution's obverse requirements that taxation be uniform and that spending be common and general.
{"title":"Uniform Throughout the United States: Limits on Taxing as Limits on Spending","authors":"L. Claus","doi":"10.2139/SSRN.285596","DOIUrl":"https://doi.org/10.2139/SSRN.285596","url":null,"abstract":"The Constitution's requirement that federal taxation be \"uniform throughout the United States\" precludes explicit conditioning of federal taxation upon state political identity. That limitation upon taxation informs the Constitution's obverse requirement that federal spending be for the \"common Defence and general Welfare\" of the United States. A state's lawful policy choices are elements of its political identity. Conditions on federal spending which explicitly target elements of a state's political identity violate the Constitution's obverse requirements that taxation be uniform and that spending be common and general.","PeriodicalId":81001,"journal":{"name":"Constitutional commentary","volume":"18 1","pages":"517-562"},"PeriodicalIF":0.0,"publicationDate":"2001-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68392985","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 most momentous but ignored case in U.S. Supreme Court history is probably Justice Holmes' opinion upholding the massive disfranchisement of black and poor white voters, through newly formed Southern state constitutions, that took place from 1890-1908. This essay provides historical context for Giles v. Harris (1903) and traces the doctrinal implications for 20th Century constitutional law of Holmes' conclusion that federal courts would not hear claims involving "political rights." Giles is virtually ignored in the principal sources of the constitutional canon, including the leading Constitutional Law casebooks. The essay argues that this reflects the larger absence from the conventional constitutional canon of the subject of democracy itself as a systematic focus of study in its own right. By recovering the political, social, and Supreme Court history of the destruction through law of democracy in the early part of the 20th century, this essay contributes to a larger project of seeking to place democracy itself at the center of constitutional thought.
美国最高法院历史上最重要但却被忽视的案件可能是霍姆斯大法官的意见，他在1890年至1908年期间通过新成立的南方各州宪法，支持大规模剥夺黑人和贫穷白人选民的选举权。本文提供了贾尔斯诉哈里斯案(Giles v. Harris, 1903)的历史背景，并追溯了霍姆斯关于联邦法院不会审理涉及“政治权利”的诉讼的结论对20世纪宪法的理论意义。在宪法经典的主要来源中，包括主要的宪法判例书中，贾尔斯几乎被忽视了。这篇文章认为，这反映了传统宪法经典中民主主题本身作为一个系统的研究焦点的更大缺失。通过回顾20世纪早期民主被法律破坏的政治、社会和最高法院历史，这篇文章有助于一个更大的项目，即寻求将民主本身置于宪法思想的中心。
{"title":"Democracy, Anti-Democracy, and the Canon","authors":"R. Pildes","doi":"10.2139/SSRN.224731","DOIUrl":"https://doi.org/10.2139/SSRN.224731","url":null,"abstract":"The most momentous but ignored case in U.S. Supreme Court history is probably Justice Holmes' opinion upholding the massive disfranchisement of black and poor white voters, through newly formed Southern state constitutions, that took place from 1890-1908. This essay provides historical context for Giles v. Harris (1903) and traces the doctrinal implications for 20th Century constitutional law of Holmes' conclusion that federal courts would not hear claims involving \"political rights.\" Giles is virtually ignored in the principal sources of the constitutional canon, including the leading Constitutional Law casebooks. The essay argues that this reflects the larger absence from the conventional constitutional canon of the subject of democracy itself as a systematic focus of study in its own right. By recovering the political, social, and Supreme Court history of the destruction through law of democracy in the early part of the 20th century, this essay contributes to a larger project of seeking to place democracy itself at the center of constitutional thought.","PeriodicalId":81001,"journal":{"name":"Constitutional commentary","volume":"17 1","pages":"295-319"},"PeriodicalIF":0.0,"publicationDate":"2000-07-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68029432","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 re-considers the relationship between federal and state courts as fora for the resolution of civil rights claims. In his renowned 1977 article, The Myth of Parity, 90 Harv. L. Rev. 1105, Professor Burt Neuborne set forth the argument that the federal courts were institutionally superior to state courts in handling federal constitutional claims. In the succeeding 22 years, gay litigants seeking to establish and vindicate civil rights have generally fared better in state courts than they have in federal courts. This might, of course, be nothing more than a consequence of the political orientation of the federal judges appointed by Presidents Reagan and Bush during these years. However, this Article argues that the gay rights experience reveals certain institutional characteristics of state courts that make them systemically better-situated (or at least no less well-situated) to demonstrate empathy for minority concerns in certain carefully-defined situations. In so concluding, the Article urges that forum-shopping civil rights attorneys abandon an irrebutable presumption in favor of federal courts.
{"title":"The Myth of Superiority","authors":"W. Rubenstein","doi":"10.2139/SSRN.205228","DOIUrl":"https://doi.org/10.2139/SSRN.205228","url":null,"abstract":"This Article re-considers the relationship between federal and state courts as fora for the resolution of civil rights claims. In his renowned 1977 article, The Myth of Parity, 90 Harv. L. Rev. 1105, Professor Burt Neuborne set forth the argument that the federal courts were institutionally superior to state courts in handling federal constitutional claims. In the succeeding 22 years, gay litigants seeking to establish and vindicate civil rights have generally fared better in state courts than they have in federal courts. This might, of course, be nothing more than a consequence of the political orientation of the federal judges appointed by Presidents Reagan and Bush during these years. However, this Article argues that the gay rights experience reveals certain institutional characteristics of state courts that make them systemically better-situated (or at least no less well-situated) to demonstrate empathy for minority concerns in certain carefully-defined situations. In so concluding, the Article urges that forum-shopping civil rights attorneys abandon an irrebutable presumption in favor of federal courts.","PeriodicalId":81001,"journal":{"name":"Constitutional commentary","volume":"16 1","pages":"599-625"},"PeriodicalIF":0.0,"publicationDate":"2000-02-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67890003","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}
In decisions since Miranda, the Supreme Court has characterized the required warnings as less than constitutionally required ?prophylactic rules.? The prophylactic rules cases are generally regarded as inconsistent with the Court?s cases applying Miranda in state cases. The Fourth Circuit?s recent Dickerson decision relied on the prophylactic rules cases to admit a Miranda-tainted statement on the authority of Title II of the 1968 Crime Control Act, which purports to repudiate Miranda in favor of the due process voluntariness test. The Department of Justice asked the court to review Dickerson, and cert was granted in early December. The article argues that consistency does not require major changes in the law. In only five cases has the Court approved the admission of evidence obtained in violation of Miranda. The impeachment cases can be squared with Miranda on either or both of two theories. First, the defendant who testifies at trial waives the privilege at trial and can be compelled to answer pertinent questions on cross. Thus the use of previously compelled testimony for impeachment does not constitute a renewed violation of the Fifth Amendment, and adequate deterrence of the pretrial compulsion satisfies the Fifth Amendment. Second, compelled statements admitted for credibility rather than truth are not testimonial, so long as the jury follows the court?s instructions. The limiting instruction is a fiction, but in many other cases the constitutionality of admitting evidence depends on just this fiction. The need to deter coerced confessions justifies a broader exclusionary rule for due process violations, and the greater difficulty of proving perjury when the pretrial statement was not sworn justifies a broader exclusionary rule for statements compelled by formal process. The derivative evidence cases can be read as merely shifting the burden of proof on the issue of whether evidence was derived from previously compelled testimony. Given that interrogation takes place at an early and dynamic stage of the investigation, exclusion of all evidence arguably derived from a Miranda violation would cost the government much evidence it would have discovered in the absence of the violation. By contrast, immunity grants are deliberate prosecutorial decisions, issued after the government has exhausted other avenues of investigation. It follows that assigning the government the burden of disproving causation in immunity cases, but assigning the defense the burden of proving causation in Miranda cases, rests on a defensible distinction. The public safety case can be squared with Miranda by emphasizing the interplay between custody and interrogation. When the suspect is asked a single question in public during an emergency, it is fair to say that even though the suspect is in custody and even though the suspect has been questioned, the suspect has not been subjected to custodial interrogation. Traffic stops and prison informers have been held not to invo
{"title":"Is the Miranda Caselaw Really Inconsistent? A Proposed Fifth Amendment Synthesis","authors":"Donald A. Dripps","doi":"10.2139/SSRN.202382","DOIUrl":"https://doi.org/10.2139/SSRN.202382","url":null,"abstract":"In decisions since Miranda, the Supreme Court has characterized the required warnings as less than constitutionally required ?prophylactic rules.? The prophylactic rules cases are generally regarded as inconsistent with the Court?s cases applying Miranda in state cases. The Fourth Circuit?s recent Dickerson decision relied on the prophylactic rules cases to admit a Miranda-tainted statement on the authority of Title II of the 1968 Crime Control Act, which purports to repudiate Miranda in favor of the due process voluntariness test. The Department of Justice asked the court to review Dickerson, and cert was granted in early December. The article argues that consistency does not require major changes in the law. In only five cases has the Court approved the admission of evidence obtained in violation of Miranda. The impeachment cases can be squared with Miranda on either or both of two theories. First, the defendant who testifies at trial waives the privilege at trial and can be compelled to answer pertinent questions on cross. Thus the use of previously compelled testimony for impeachment does not constitute a renewed violation of the Fifth Amendment, and adequate deterrence of the pretrial compulsion satisfies the Fifth Amendment. Second, compelled statements admitted for credibility rather than truth are not testimonial, so long as the jury follows the court?s instructions. The limiting instruction is a fiction, but in many other cases the constitutionality of admitting evidence depends on just this fiction. The need to deter coerced confessions justifies a broader exclusionary rule for due process violations, and the greater difficulty of proving perjury when the pretrial statement was not sworn justifies a broader exclusionary rule for statements compelled by formal process. The derivative evidence cases can be read as merely shifting the burden of proof on the issue of whether evidence was derived from previously compelled testimony. Given that interrogation takes place at an early and dynamic stage of the investigation, exclusion of all evidence arguably derived from a Miranda violation would cost the government much evidence it would have discovered in the absence of the violation. By contrast, immunity grants are deliberate prosecutorial decisions, issued after the government has exhausted other avenues of investigation. It follows that assigning the government the burden of disproving causation in immunity cases, but assigning the defense the burden of proving causation in Miranda cases, rests on a defensible distinction. The public safety case can be squared with Miranda by emphasizing the interplay between custody and interrogation. When the suspect is asked a single question in public during an emergency, it is fair to say that even though the suspect is in custody and even though the suspect has been questioned, the suspect has not been subjected to custodial interrogation. Traffic stops and prison informers have been held not to invo","PeriodicalId":81001,"journal":{"name":"Constitutional commentary","volume":"17 1","pages":"19-48"},"PeriodicalIF":0.0,"publicationDate":"2000-02-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67862225","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 Supreme Court's emphasis on "corruption and the appearance of corruption" in its campaign finance jurisprudence has stimulated criticism on several fronts. I hope in this article to give some sense of both the possibilities and the limits of understanding campaign finance as an issue of corruption.
{"title":"The Concept of Corruption in Campaign Finance Law","authors":"T. F. Burke","doi":"10.2139/SSRN.2556455","DOIUrl":"https://doi.org/10.2139/SSRN.2556455","url":null,"abstract":"The Supreme Court's emphasis on \"corruption and the appearance of corruption\" in its campaign finance jurisprudence has stimulated criticism on several fronts. I hope in this article to give some sense of both the possibilities and the limits of understanding campaign finance as an issue of corruption.","PeriodicalId":81001,"journal":{"name":"Constitutional commentary","volume":"14 1","pages":"127-149"},"PeriodicalIF":0.0,"publicationDate":"1997-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2556455","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68201937","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 : 1995-03-22DOI: 10.1093/acprof:oso/9780199243006.003.0008
Randy E. Barnett
We are in the midst of a natural law revival. Not since the Hart-Fuller debate2 in the wake of Nuremberg has legal academia witnessed such interest in the topics of natural law and natural rights.3 While this development may be only the most recent aspect of the now several decades old revival of normative legal philosophy that I chronicled some ten years ago,4 the immediate cause of this interest was, of course, the nomination of Clarence Thomas to the Supreme Court of the United States. The
{"title":"Getting Normative: The Role of Natural Rights in Constitutional Adjudication","authors":"Randy E. Barnett","doi":"10.1093/acprof:oso/9780199243006.003.0008","DOIUrl":"https://doi.org/10.1093/acprof:oso/9780199243006.003.0008","url":null,"abstract":"We are in the midst of a natural law revival. Not since the Hart-Fuller debate2 in the wake of Nuremberg has legal academia witnessed such interest in the topics of natural law and natural rights.3 While this development may be only the most recent aspect of the now several decades old revival of normative legal philosophy that I chronicled some ten years ago,4 the immediate cause of this interest was, of course, the nomination of Clarence Thomas to the Supreme Court of the United States. The","PeriodicalId":81001,"journal":{"name":"Constitutional commentary","volume":"12 1","pages":"93"},"PeriodicalIF":0.0,"publicationDate":"1995-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60648462","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 : 1995-01-01DOI: 10.4324/9781315181981-14
L. Alexander
A few years ago, in an exchange with Cass Sunstein and Frederick Schauer, I criticized efforts to distinguish "high value" and "low value" speech, as the Supreme Court, Sunstein, and others have urged from time to time.t Any particular "unit" of speech, however such a unit is individuated, may convey an indefinite number of ideas to its audience. The ideas conveyed vary depending upon what the unit of speech is taken to be, the context into which it is placed, and the audience to which it is presented. Some ideas may seem more valuable than othersbecause we think some are true and important, while others are either false or banal-but we cannot locate the ideas that audiences derive from speech in the speech itself. We cannot ban "low value" ideas by banning, say, "low value" movies because audiences may derive low value ideas from high value movies and vice versa. A medical textbook may be neglected by physicians but eagerly sought by those who are sexually aroused by its pictures of sexual organs; a book of "pornographic" photographs may be profitably studied by psychologists and sociologists in whom it produces no sexual arousal whatsoever. The ideas that speech evokes are not locatable in the symbols employed.2 In the same exchange, I also argued against locating the "value" of speech in the intentions of its authors.3 My reason was similar to my reason against locating value in the speech it-
{"title":"Free Speech and Speaker's Intent.","authors":"L. Alexander","doi":"10.4324/9781315181981-14","DOIUrl":"https://doi.org/10.4324/9781315181981-14","url":null,"abstract":"A few years ago, in an exchange with Cass Sunstein and Frederick Schauer, I criticized efforts to distinguish \"high value\" and \"low value\" speech, as the Supreme Court, Sunstein, and others have urged from time to time.t Any particular \"unit\" of speech, however such a unit is individuated, may convey an indefinite number of ideas to its audience. The ideas conveyed vary depending upon what the unit of speech is taken to be, the context into which it is placed, and the audience to which it is presented. Some ideas may seem more valuable than othersbecause we think some are true and important, while others are either false or banal-but we cannot locate the ideas that audiences derive from speech in the speech itself. We cannot ban \"low value\" ideas by banning, say, \"low value\" movies because audiences may derive low value ideas from high value movies and vice versa. A medical textbook may be neglected by physicians but eagerly sought by those who are sexually aroused by its pictures of sexual organs; a book of \"pornographic\" photographs may be profitably studied by psychologists and sociologists in whom it produces no sexual arousal whatsoever. The ideas that speech evokes are not locatable in the symbols employed.2 In the same exchange, I also argued against locating the \"value\" of speech in the intentions of its authors.3 My reason was similar to my reason against locating value in the speech it-","PeriodicalId":81001,"journal":{"name":"Constitutional commentary","volume":"12 1","pages":"459-466"},"PeriodicalIF":0.0,"publicationDate":"1995-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70635375","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":"We the Exceptional American People","authors":"J. Fleming","doi":"10.2307/j.ctv1ddd0f6.8","DOIUrl":"https://doi.org/10.2307/j.ctv1ddd0f6.8","url":null,"abstract":"","PeriodicalId":81001,"journal":{"name":"Constitutional commentary","volume":"11 1","pages":"355"},"PeriodicalIF":0.0,"publicationDate":"1994-09-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68790075","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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