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Debate on Birthright Citizenship
Florida International University College of Law eCollections Faculty Publications Faculty Scholarship 2011 Debate on Birthright Citizenship John Eastman Dr. Chapman University Fowler School of Law, [email protected] Ediberto Román Florida International University College of Law, [email protected] Follow this and additional works at: https://ecollections.law.fiu.edu/faculty_publications Part of the Fourteenth Amendment Commons Recommended Citation John Eastman Dr. and Ediberto Román, Debate on Birthright Citizenship , 6 FIU L. Rev. 293 (2011). Available at: https://ecollections.law.fiu.edu/faculty_publications/304 This Article is brought to you for free and open access by the Faculty Scholarship at eCollections. It has been accepted for inclusion in Faculty Publications by an authorized administrator of eCollections. For more information, please contact [email protected]. +(,121/,1( Citation: 6 FIU L. Rev. 293 2010-2011 Provided by: FIU College of Law Content downloaded/printed from HeinOnline Thu Jun 22 14:05:02 2017 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. Debate on Birthright Citizenship Dr. John Eastman*& Professor Ediberto Roman' Dr. John C. Eastman is the Henry Salvatori Professor of Law & Community Service at Chapman University School of Law, specializing in Constitutional Law and Legal History. He also served as Dean from 2007 to 2010, when he stepped down to pursue a campaign for Califor- nia Attorney General. He is also the founding Director of the Center for Constitutional Juris- prudence, a public interest law firm affiliated with the Claremont Institute for the Study of Statesmanship and Political Philosophy. -
Who Is the Attorney General's Client?
\\jciprod01\productn\N\NDL\87-3\NDL305.txt unknown Seq: 1 20-APR-12 11:03 WHO IS THE ATTORNEY GENERAL’S CLIENT? William R. Dailey, CSC* Two consecutive presidential administrations have been beset with controversies surrounding decision making in the Department of Justice, frequently arising from issues relating to the war on terrorism, but generally giving rise to accusations that the work of the Department is being unduly politicized. Much recent academic commentary has been devoted to analyzing and, typically, defending various more or less robust versions of “independence” in the Department generally and in the Attorney General in particular. This Article builds from the Supreme Court’s recent decision in Free Enterprise Fund v. Public Co. Accounting Oversight Board, in which the Court set forth key principles relating to the role of the President in seeing to it that the laws are faithfully executed. This Article draws upon these principles to construct a model for understanding the Attorney General’s role. Focusing on the question, “Who is the Attorney General’s client?”, the Article presumes that in the most important sense the American people are the Attorney General’s client. The Article argues, however, that that client relationship is necessarily a mediated one, with the most important mediat- ing force being the elected head of the executive branch, the President. The argument invokes historical considerations, epistemic concerns, and constitutional structure. Against a trend in recent commentary defending a robustly independent model of execu- tive branch lawyering rooted in the putative ability and obligation of executive branch lawyers to alight upon a “best view” of the law thought to have binding force even over plausible alternatives, the Article defends as legitimate and necessary a greater degree of presidential direction in the setting of legal policy. -
History, Tradition, the Supreme Court, and the First Amendment Erwin Chemerinsky
Hastings Law Journal Volume 44 | Issue 4 Article 7 1-1993 History, Tradition, the Supreme Court, and the First Amendment Erwin Chemerinsky Follow this and additional works at: https://repository.uchastings.edu/hastings_law_journal Part of the Law Commons Recommended Citation Erwin Chemerinsky, History, Tradition, the Supreme Court, and the First Amendment, 44 Hastings L.J. 901 (1993). Available at: https://repository.uchastings.edu/hastings_law_journal/vol44/iss4/7 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Law Journal by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. History, Tradition, the Supreme Court, and the First Amendment by ERWIN CHEMERINSKY* Introduction My advice to an attorney litigating a case before the current Supreme Court is to buy a copy of Blackstone's history of the common law or at least a good book on legal history. In virtually every area of constitutional law, the Supreme Court increasingly is relying on tradition as its guide in decisionmaking. Repeatedly, the Supreme Court has de- nied constitutional protection by holding that the claimed right was not historically protected. The Court is often explicit in stating that rights should be protected only if there has been a tradition of judicial safe- guards, and its analysis frequently is accompanied by a lengthy exegesis on common-law practices. I believe that this is a perverse and undesirable method of interpret- ing the Constitution. What has been done in the past cannot answer normatively what the law should be in the future. -
Legal Ethics
642 THE GEORGETOWN JOURNAL OF LEGAL ETHICS IDEOLOGY, JUDICIAL SELECTION AND JUDICIAL ETHICS ERWIN CHEMERINSKY Reprinted from THE GEORGETOWN JOURNAL OF LEGAL ETHICS Volume 2, Number 3, Winter 1989 Copyright © 1989 Georgetown Journal of Legal Ethics 643 Ideology, Judicial Selection and Judicial Ethics ERWIN CHEMERINSKY* In the fail of 1986, there was a bitter fight against the retention of three members of the California Supreme Court, Rose Bird, Joseph Grodin, and Cruz Reynoso. Exactly a year later, the nation's attention focused on the battle over Robert Bork's confirmation to the United States Supreme Court. There were ironic parallels between these two events. In both instances, pub- lic opinion and media reporting played an unprecedented role in the judicial selection process. In each situation, there were arguments over whether the candidates' ideology should be a major factor in the evaluations. Liberals in California argued that assuring judicial inde- pendence required that the evaluation be limited to the justices' competence; that the individuals' ideology and prior votes should play no role in the re- tention election. But the sides were reversed in tflMMMMBtfMHMMWM the liberals who ^rgUcd that B<^^^~^v^ml^giig^t^bmtKHmmK tiv&jfem••91& prior votes asri^Bi^gJHBB^rtii^ Conservatives argued that evaluation should be limited to the nominee's competence—that his ide- ology and prior votes should play no role in the Senate's confirmation decision. A cynic might observe that these experiences reflect a pattern of public rhetoric. If jjnp |n nil kill liriHTfihi liiffti jiniiWHi iilmii ni'^nTiTfrrMTITri'P as an issue in your arguments; bat if your candidate's positions ate against the weight of public opinion, you maintain that ideology is irrelevant and that judicial candidates should be evaluated solely on the basis of profes- sional qualifications. -
AMAR: Third Thoughts on Kavanaugh Akhil Amar
AMAR: Third thoughts on Kavanaugh Akhil Amar In a Yale Daily News op-ed published on Sept. 24, I offered “Second Thoughts” on the Supreme Court nomination of Justice Brett Kavanaugh ’87 LAW ’90 and mapped a procedural path forward through the dense thicket of accusations and denials. I proposed: (1) a speedy public hearing followed by (2) additional investigation, with (3) a firm end date to the investigation — I floated Oct. 5 — and (4) scope restrictions on the investigation to prevent “still more extensions [and] ever wider investigations.” On Sept. 24, no one else — so far as I know — was publicly proposing this precise procedural framework, but, as events actually unfolded in the following weeks, something remarkably similar to my proposed framework was in fact cobbled together and implemented, though critics have argued that the scope of the FBI’s post-hearing investigation was unduly narrow. Kavanaugh’s confirmation on Oct. 6 raises countless questions — the episode will spawn shelves of future books and articles. Today, I will address just one narrow issue of special local significance: Yale’s, and my own, complicated relationship to power. Yale prides itself on its tradition of preparing future leaders. In his Yale College opening address on Aug. 25 — well before the Kavanaugh nomination boiled over and roiled the campus — President Peter Salovey proclaimed that “Our alumni are perhaps the greatest illustration of Yale’s tradition of service. Five Yale graduates have served as U.S. presidents, four as secretaries of state and eighteen as justices on the U.S. Supreme Court, representing viewpoints across the political spectrum. -
OPINION and DENNIS HOLLINGSWORTH; GAIL J
FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT KRISTIN M. PERRY; SANDRA B. STIER; PAUL T. KATAMI; JEFFREY J. ZARRILLO, Plaintiffs-Appellees, CITY AND COUNTY OF SAN FRANCISCO, Intervenor-Plaintiff-Appellee, v. EDMUND G. BROWN, JR., in his official capacity as Governor of California; KAMALA D. HARRIS, in her official capacity as Attorney General of California; MARK B. HORTON, in his official capacity as Director of the California Department of Public Health & State Registrar of Vital Statistics; LINETTE SCOTT, in her official capacity as Deputy Director of Health Information & Strategic Planning for the California Department of Public Health; PATRICK O’CONNELL, in his official capacity as Clerk-Recorder for the County of Alameda; DEAN C. LOGAN, in his official capacity as Registrar-Recorder/County Clerk for the County of Los Angeles, Defendants, 1569 1570 PERRY v. BROWN HAK-SHING WILLIAM TAM, Intervenor-Defendant, and DENNIS HOLLINGSWORTH; GAIL J. No. 10-16696 KNIGHT; MARTIN F. GUTIERREZ; D.C. No. MARK A. JANSSON; 3:09-cv-02292- PROTECTMARRIAGE.COM-YES ON 8, VRW A PROJECT OF CALIFORNIA RENEWAL, as official proponents of Proposition 8, Intervenor-Defendants-Appellants. KRISTIN M. PERRY; SANDRA B. STIER; PAUL T. KATAMI; JEFFREY J. ZARRILLO, Plaintiffs-Appellees, CITY AND COUNTY OF SAN FRANCISCO, Intervenor-Plaintiff-Appellee, v. EDMUND G. BROWN, JR., in his official capacity as Governor of California; KAMALA D. HARRIS, in her official capacity as Attorney General of California; MARK B. HORTON, in his official capacity as Director of the California Department of Public Health & State Registrar of Vital Statistics; PERRY v. BROWN 1571 LINETTE SCOTT, in her official capacity as Deputy Director of Health Information & Strategic Planning for the California Department of Public Health; PATRICK O’CONNELL, in his official capacity as Clerk-Recorder for the County of Alameda; DEAN C. -
Erwin Chemerinsky, Dean, Professor of Law UC Berkeley Law School
The Bay Area Bankruptcy Forum and our Co-sponsors Present Round-up of Current Supreme Court Cases - Focusing on Those Most Important to Bankruptcy Lawyers and Accountants Erwin Chemerinsky, Dean, Professor of Law UC Berkeley Law School Erwin Chemerinsky became the 13th Dean of Berkeley Law on July 1, 2017, when he joined the faculty as the Jesse H. Choper Distinguished Professor of Law. Prior to assuming this position, from 2008-2017, he was the founding Dean and Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law, at University of California, Irvine School of Law, with a joint appointment in Political Science. Before that he was the Alston and Bird Professor of Law and Political Science at Duke University from 2004-2008, and from 1983- 2004 was a professor at the University of Southern California Law School, including as the Sydney M. Irmas Professor of Public Interest Law, Legal Ethics, and Political Science. He also has taught at DePaul College of Law and UCLA Law School. He teaches Constitutional Law, First Amendment Law, Federal Courts, Criminal Procedure, and Appellate Litigation. He is the author of ten books, including The Case Against the Supreme Court, published by Viking in 2014, and two books published by Yale University Press in 2017, Closing the Courthouse Doors: How Your Constitutional Rights Became Unenforceable and Free Speech on Campus (with Howard Gillman). He also is the author of more than 200 law review articles. He writes a weekly column for the Orange County Register, monthly columns for the ABA Journal and the Daily Journal, and frequent op-eds in newspapers across the country. -
The Rehnquist Court and Criminal Procedure Stephen F
Notre Dame Law School NDLScholarship Journal Articles Publications 2002 The Rehnquist Court and Criminal Procedure Stephen F. Smith Notre Dame Law School, [email protected] Follow this and additional works at: https://scholarship.law.nd.edu/law_faculty_scholarship Part of the Constitutional Law Commons, and the Courts Commons Recommended Citation Stephen F. Smith, The Rehnquist Court and Criminal Procedure, 73 U. Colo. L. Rev. 1337 (2002). Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/448 This Article is brought to you for free and open access by the Publications at NDLScholarship. It has been accepted for inclusion in Journal Articles by an authorized administrator of NDLScholarship. For more information, please contact [email protected]. THE REHNQUIST COURT AND CRIMINAL PROCEDURE STEPHEN F. SMITH* INTRODUCTION This Conference, like a growing body of academic literature, discusses the phenomenon of conservative judicial activism. Has the Rehnquist Court been "activist"-whatever that means-in its approach to constitutional adjudication? With recent rumors that Chief Justice Rehnquist will soon announce his retirement, this is a particularly topical subject. Indeed, even now, one sees the first chiselings of the Court's epitaph, with Professor Erwin Chemerinsky, for example, declaring that the Rehnquist Court has been nothing short of a "disaster" due to its rampant conservative activism.1 The question of whether, and to what extent, the Rehnquist Court is "activist" or practices the "restraint" that judicial conservatives traditionally preach will likely figure prominently in the ultimate assessment of the Court's jurisprudence. Much of this Conference addresses this question within the context of the revival of federalism-based limits on Congress over the last decade. -
Letter to Supreme Court (Erwin Chemerinsky Is Mad. Why You Should Care) Barry Friedman
Vanderbilt Law Review Volume 69 | Issue 4 Article 4 5-2016 Letter to Supreme Court (Erwin Chemerinsky is Mad. Why You Should Care) Barry Friedman Follow this and additional works at: https://scholarship.law.vanderbilt.edu/vlr Part of the Supreme Court of the United States Commons Recommended Citation Barry Friedman, Letter to Supreme Court (Erwin Chemerinsky is Mad. Why You Should Care), 69 Vanderbilt Law Review 995 (2019) Available at: https://scholarship.law.vanderbilt.edu/vlr/vol69/iss4/4 This Article is brought to you for free and open access by Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Law Review by an authorized editor of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. Letter To Supreme Court (Erwin Chemerinsky is Mad. Why You Should Care.) Barry Friedman* I. THE PROBLEM WITH CHEMERINSKY'S "CASE" ..................... 997 II. THE CASE FOR ERWIN CHEMERINSKY ............................... 1001 III. THE CONSERVATIVE CASE AGAINST THE SUPREM E COURT ........................................................ 1002 IV. W HAT THE PEOPLE THINK ................................................. 1004 V . TIM E FOR CHANGE? ........................ ............... ................. .. 1007 VI. BACK TO THE (MERITS) FUTURE ........................................ 1014 Dear Supreme Court: You may be wondering why I'm writing. Let me tell you. I was asked to participate in a symposium about Erwin Chemerinsky's The Case Against the Supreme Court. I'm sure you know Chemerinsky. His book is a stinging condemnation of much that you do. And his goal-in which he does not nearly succeed-is to show your work to be unacceptable to the left and the right alike. He fancies that he is offering a non-partisan, non-ideological, non-denominational challenge to your hegemony. -
Selling Originalism
Columbia Law School Scholarship Archive Faculty Scholarship Faculty Publications 2009 Selling Originalism Jamal Greene Columbia Law School, [email protected] Follow this and additional works at: https://scholarship.law.columbia.edu/faculty_scholarship Part of the Law Commons Recommended Citation Jamal Greene, Selling Originalism, 97 GEO. L. J. 657 (2009). Available at: https://scholarship.law.columbia.edu/faculty_scholarship/674 This Article is brought to you for free and open access by the Faculty Publications at Scholarship Archive. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Scholarship Archive. For more information, please contact [email protected]. ARTICLES Selling Originalism JAMAL GREENE* TABLE OF CONTENTS INTRODUCTION ................................................... 658 I. ORIGINALISM AND ITS DETRACTORS ........................ 661 A. WHOSE ORIGINALISM? . .. 661 B. WHY ORIGINALISMM? . 664 C. WHY NOT ORIGINALISM?. ................................... 665 D. NEW ORIGINALISM ................................. 670 II. POPULAR ORIGINALISM ...................................... 672 A. A BRIEF HISTORY OF ORIGINALISM ....................... 674 B. ORIGINALISM IN PRACTICE .................................... 682 C. THE SALIENCE OF METHODOLOGY ................... ..... 690 Ill. ORIGINALISM AS NON-ORIGINALIST .............................. 696 A. CONSTITUTIONAL PRACTICE AS CONSTITUTIONAL THEORY ......... 697 B. THE MARKET FOR METHODOLOGIES ...................... 702 c. TESTING THE -
Senate Democracy: Our Lockean Paradox and How to Solve It
SENATE DEMOCRACY: OUR LOCKEAN PARADOX AND HOW TO SOLVE IT Eric W. Orts Forthcoming in American University Law Review, vol. 68 (2019) Please cite to published version when available. Contact information: [email protected] cell: 215 939 2823 2 SENATE DEMOCRACY [Draft: May 13, 2019] Senate Democracy: Our Lockean Paradox and How to Solve It Eric W. Orts* Abstract The United States Senate is radically unrepresentative. American citizens in populous states such as California, Texas, Florida, and New York have much less voting weight than citizens in lightly populated states. Senate representation is also significantly biased in terms of race, ethnicity, and color, as well as other constitutionally protected characteristics such as age and sex. Effective reform of Senate, however, presents a Lockean paradox because amendment of the Senate’s representational structure is prohibited by Article V of the Constitution, and the amendment of Article V is itself blocked by impossible supermajority hurdles. This Article proposes a Senate Reform Act to solve this paradox. The reform would adjust the number of senators allocated to each state by relative population. It recommends a Rule of One Hundred to determine population units by which to allocate senate seats according the official decennial census, with a minimum of one senator per state. The reform would thus respect the principle of federalism and maintain the Senate at roughly the same size. It would yield structural co-benefits such as a more representative Electoral College and an easier path to statehood for underrepresented citizens in the District of Columbia, Puerto Rico, and elsewhere. The proposed Senate Reform Act finds its constitutional authority in the Fourteenth, Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments, collectively the voting-rights amendments. -
Articles the Anticanon
VOLUME 125 DECEMBER 2011 NUMBER 2 © 2011 by The Harvard Law Review Association ARTICLES THE ANTICANON Jamal Greene CONTENTS INTRODUCTION ............................................................................................................................ 380 I. DEFINING THE ANTICANON ............................................................................................ 385 II. DEFENDING THE ANTICANON ........................................................................................ 404 A. The Anticanon’s Errors..................................................................................................... 405 1. Dred Scott v. Sandford ............................................................................................... 406 2. Plessy v. Ferguson ...................................................................................................... 412 3. Lochner v. New York ................................................................................................... 417 4. Korematsu v. United States ....................................................................................... 422 B. A Shadow Anticanon ........................................................................................................ 427 III. RECONSTRUCTING THE ANTICANON ............................................................................ 434 A. Historicism ........................................................................................................................ 435 1. Dred Scott ...................................................................................................................