Why the Late Justice Scalia Was Wrong: the Fallacies of Constitutional Textualism
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Individual Rights Under State Constitutions in 2018: What Rights Are Deeply Rooted in a Modern-Day Consensus of the States? Steven G
Notre Dame Law Review Volume 94 | Issue 1 Article 2 11-2018 Individual Rights Under State Constitutions in 2018: What Rights are Deeply Rooted in a Modern-Day Consensus of the States? Steven G. Calabresi Northwestern Pritzker School of Law James Lindgren Northwestern Pritzker School of Law Hannah M. Begley Stanford Law School Kathryn L. Dore Northwestern Pritzker School of Law Sarah E. Agudo Northwestern Pritzker School of Law Follow this and additional works at: https://scholarship.law.nd.edu/ndlr Part of the Constitutional Law Commons, and the State and Local Government Law Commons Recommended Citation 94 Notre Dame L. Rev. 49 (2018). This Article is brought to you for free and open access by the Notre Dame Law Review at NDLScholarship. It has been accepted for inclusion in Notre Dame Law Review by an authorized editor of NDLScholarship. For more information, please contact [email protected]. \\jciprod01\productn\N\NDL\94-1\NDL102.txt unknown Seq: 1 21-NOV-18 10:57 INDIVIDUAL RIGHTS UNDER STATE CONSTITUTIONS IN 2018: WHAT RIGHTS ARE DEEPLY ROOTED IN A MODERN-DAY CONSENSUS OF THE STATES? Steven Gow Calabresi, James Lindgren, Hannah M. Begley, Kathryn L. Dore & Sarah E. Agudo* INTRODUCTION .................................................. 51 R I. METHODOLOGY ........................................... 53 R II. THE DATA ON THE STATE CONSTITUTIONS ................. 54 R A. Rights Bearing on Religion ............................. 54 R 1. Establishment Clauses ............................ 54 R 2. Free Exercise Clauses ............................ 62 R © 2018 Steven Gow Calabresi, James Lindgren, Hannah M. Begley, Kathryn L. Dore & Sarah E. Agudo. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the authors, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice. -
Judicial Review, Constitutional Interpretation, and the Democratic Dilemma: Proposing a “Controlled Activism” Alternative Martin H
Florida Law Review Volume 64 | Issue 6 Article 1 1-27-2013 Judicial Review, Constitutional Interpretation, and the Democratic Dilemma: Proposing a “Controlled Activism” Alternative Martin H. Redish Matthew .B Arnould Follow this and additional works at: http://scholarship.law.ufl.edu/flr Part of the Constitutional Law Commons Recommended Citation Martin H. Redish and Matthew B. Arnould, Judicial Review, Constitutional Interpretation, and the Democratic Dilemma: Proposing a “Controlled Activism” Alternative, 64 Fla. L. Rev. 1485 (2012). Available at: http://scholarship.law.ufl.edu/flr/vol64/iss6/1 This Article is brought to you for free and open access by UF Law Scholarship Repository. It has been accepted for inclusion in Florida Law Review by an authorized administrator of UF Law Scholarship Repository. For more information, please contact [email protected]. Redish and Arnould: Judicial Review, Constitutional Interpretation, and the Democrati Florida Law Review Founded 1948 Formerly University of Florida Law Review VOLUME 64 DECEMBER 2012 NUMBER 6 DUNWODY DISTINGUISHED LECTURE IN LAW JUDICIAL REVIEW, CONSTITUTIONAL INTERPRETATION, AND THE DEMOCRATIC DILEMMA: PROPOSING A “CONTROLLED ACTIVISM” ALTERNATIVE Martin H. Redish & Matthew B. Arnould Abstract No problem generates more debate among constitutional scholars than how to approach constitutional interpretation. This Article critiques two representative theories (or families of theories), originalism and nontextualism, and offers a principled alternative, which we call “controlled activism.” -
The Alchemy of Dissent
Columbia Law School Scholarship Archive Faculty Scholarship Faculty Publications 2010 The Alchemy of Dissent 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, The Alchemy of Dissent, 45 TULSA L. REV. 703 (2010). Available at: https://scholarship.law.columbia.edu/faculty_scholarship/942 This Book Review 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]. THE ALCHEMY OF DISSENT Jamal Greene* Stephen M. Feldman, Free Expression and Democracy in America: A History (U. Chi. Press 2008). Pp. 544. $55.00. On July 10, 2010, the Orange/Sullivan County NY 912 Tea Party organized a "Freedom from Tyranny" rally in the sleepy exurb of Middletown, New York. Via the group's online Meetup page, anyone who was "sick of the madness in Washington" and prepared to "[d]efend our freedom from Tyranny" was asked to gather on the grass next to the local Perkins restaurant and Super 8 motel for the afternoon rally.1 Protesters were encouraged to bring their lawn chairs for the picnic and fireworks to follow. There was a time when I would have found an afternoon picnic a surprising response to "Tyranny," but I have since come to expect it. The Tea Party movement that has grown so exponentially in recent years is shrouded in irony. -
Justice Scalia's Bottom-Up Approach to Shaping The
William & Mary Bill of Rights Journal Volume 25 (2016-2017) Issue 1 Article 7 October 2016 Justice Scalia’s Bottom-Up Approach to Shaping the Law Meghan J. Ryan Follow this and additional works at: https://scholarship.law.wm.edu/wmborj Part of the Courts Commons, Legal Biography Commons, and the Supreme Court of the United States Commons Repository Citation Meghan J. Ryan, Justice Scalia’s Bottom-Up Approach to Shaping the Law, 25 Wm. & Mary Bill Rts. J. 297 (2016), https://scholarship.law.wm.edu/wmborj/vol25/iss1/7 Copyright c 2016 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmborj JUSTICE SCALIA’S BOTTOM-UP APPROACH TO SHAPING THE LAW Meghan J. Ryan * ABSTRACT Justice Antonin Scalia is among the most famous Supreme Court Justices in history. He is known for his originalism and conservative positions, as well as his witty and acerbic legal opinions. One of the reasons Justice Scalia’s opinions are so memorable is his effective use of rhetorical devices, which convey colorful images and understandable ideas. One might expect that such powerful opinions would be effective in shaping the law, but Justice Scalia’s judicial philosophy was often too conservative to persuade a majority of his fellow Justices on the Supreme Court. Fur- ther, his regular criticisms of his Supreme Court colleagues were not conducive to building majority support for his reasoning. Hoping to still have a lasting impact on the law, Justice Scalia seemed to direct his rhetoric at a different audience. -
The Nomination of Amy Coney Barrett
The Nomination of Amy Coney Barrett What’s at Stake? The Separation of Church and State A report from Americans United for Separation of Church and State September 26, 2020 INTRODUCTION Our country was founded on the principle of religious freedom—a tradition and ideal that remains central to who we are today. The separation of church and state is the linchpin of religious freedom and one of the hallmarks of American democracy. It ensures that every American is able to practice their religion or no religion at all, without government interference, as long as they do not harm others. It also means that our government officials, including our judges, can’t favor or disfavor religion or impose their personal religious beliefs on the law. Separation safeguards both religion and government by ensuring that one institution does not control the other, allowing religious diversity in America to flourish. Our Supreme Court must respect this fundamental principle. The American people agree: According to a poll conducted in July of 2019 by Anzalone Liszt Grove Research on behalf of Americans United, 60 percent of likely voters say protecting the separation of religion and government is either one of the most important issues to them personally or very important. Justice Ginsburg was a staunch supporter of the separation of church and state. Yet President Trump has nominated Amy Coney Barrett, whose record indicates hostility toward church-state separation, to fill her seat. Religious freedom for all Americans hangs in the balance with this nomination. AT STAKE: Whether Religious Exemptions Will Be Used to Harm Others, Undermine Nondiscrimination Laws, and Deny Access to Healthcare Religious freedom is a shield that protects religion, not a sword to harm others or to discriminate. -
A Tale of Two Textualists: a Critical Comparison of Justices Black and Scalia Michael J
College of William & Mary Law School William & Mary Law School Scholarship Repository Faculty Publications Faculty and Deans 1994 A Tale of Two Textualists: A Critical Comparison of Justices Black and Scalia Michael J. Gerhardt Repository Citation Gerhardt, Michael J., "A Tale of Two Textualists: A Critical Comparison of Justices Black and Scalia" (1994). Faculty Publications. 990. https://scholarship.law.wm.edu/facpubs/990 Copyright c 1994 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/facpubs ARTICLES A TALE OF TWO TEXTUALISTS: A CRITICAL COMPARISON OF JUSTICES BLACK AND SCALIA MICHAEL J. GERHARDT* The idea that Justices Hugo Black and Antonin Scalia have anything in common jurisprudentially is counterintuitive. Justice Black is associated with the progressive social and economic legislation symbolized by the New Deal and with judicial activism in protecting the poor and disen franchised.1 He is beloved by many liberals as a champion of individual rights, especially freedom of speech and of the press. In contrast, Justice Scalia is revered by conservatives as a true believer-combating the rising tide of liberalism, big government, and judicial activism-set on restoring traditional notions of federalism and judicial restraint.2 Any effort to liken these two Justices makes both liberals and conservatives recoil. * Professor of Law, Marshall-Wythe School of Law, The College of William and Mary. B.A. Yale University; M.Sc. London School of Economics; J.D. University of Chicago. I am grateful for the encouragement and helpful comments on earlier drafts I received from Marc Arkin, Erwin Chemerinsky, George Cochran, Neal Devins, Jill Fisch, Tracy Higgins, Michael Herz, Sandy Levinson, Chip Lupu, Tracey Maclin, John McGinnis, Peter Shane, Bill Treanor, Steve Wermiel, and Ron Wright. -
How Star Wars Illuminates Constitutional Law
HOW STAR WARS ILLUMINATES CONSTITUTIONAL LAW † CASS R. SUNSTEIN ABSTRACT: Human beings often see coherence and planned design when neither exists. This is so in movies, literature, history, economics, and psychoanalysis – and constitutional law. Contrary to the repeated claims of George Lucas, its principal author, the Star Wars series was hardly planned in advance; it involved a great deal of improvisation and surprise, even to Lucas himself. Serendipity and happenstance, sometimes in the forms of eruptions of new thinking, play a pervasive and overlooked role in the creative imagination, certainly in single authored works, and even more in multi-authored ones extending over time. Serendipity imposes serious demands on the search for coherence in art, literature, history, and law. That search leads many people (including Lucas) to misdescribe the nature of their own creativity and authorship. The misdescription appears to respond to a serious human need for sense-making and pattern-finding, but it is a significant obstacle to understanding and critical reflection. Whether Jedi or Sith, many authors of constitutional law are a lot like the author of Star Wars, disguising the essential nature of their own creative processes. KEYWORDS: Serendipity; Judicial Interpretation; Supreme Court; Chain Novel; Originalism. RESUMO: Os seres humanos frequentemente identificam coerência e planejamento quando nenhum desses elementos sequer existe. Tal situação ocorre nos filmes, na Literatura, na História, na Economia e na † Robert Walmsley University Professor, Harvard University. For valuable comments, I am grateful to Tyler Cowen, Elizabeth Emens, George Loewenstein, Martha Nussbaum, Eric Posner, Mark Tushnet, Adrian Vermeule, and Duncan Watts. This essay draws heavily on an earlier and less academic essay, originally published in The New Rambler (2015). -
Living Originalism and Living Constitutionalism As Moral Readings of the American Constitution
LIVING ORIGINALISM AND LIVING CONSTITUTIONALISM AS MORAL READINGS OF THE AMERICAN CONSTITUTION JAMES E. FLEMING∗ INTRODUCTION ............................................................................................. 1171 I. THE BALKANIZATION (AND BALKINIZATION) OF ORIGINALISM........ 1173 II. BALKIN’S LIVING ORIGINALISM AS A MORAL READING OF THE AMERICAN CONSTITUTION ................................................................ 1175 III. STRAUSS’S LIVING CONSTITUTIONALISM AS A MORAL READING OF THE AMERICAN CONSTITUTION .................................................... 1177 A. Originalism and Its Sins ............................................................ 1177 B. The Common Law ...................................................................... 1179 C. The Role of the Written Constitution: Common Ground and Jefferson’s Problem ............................................................ 1180 D. Constitutional Amendments and the Living Constitution .......... 1183 CONCLUSION ................................................................................................. 1184 INTRODUCTION With this event – A Symposium on Jack Balkin’s Living Originalism and David Strauss’s The Living Constitution – we launch a Boston University School of Law series of symposia on significant recent books in law. The distinctive format is to pick two significant books that join issue on an important topic, to invite the author of each book to write an essay on the other book, and to invite several Boston University School of Law faculty -
Is Textualism Doomed?
RESPONSE IS TEXTUALISM DOOMED? † ILYA SOMIN In response to Jonathan R. Siegel, The Inexorable Radicalization of Tex- tualism, 158 U. PA. L. REV. 117 (2009). In a provocative recent article, Jonathan Siegel argues that textual- ism is ultimately doomed to irrelevance because its “inexorable radica- lization . will cause it to lose the interpretation wars.”1 Siegel con- tends that textualism’s commitment to the “axiom” that “the statutory text is the law” renders it blind to all competing considerations, the- reby forcing textualist judges to enforce “absurd” interpretations of statutes and ones based on “scrivener’s errors.”2 Over time, textualism will “work itself pure,” eliminating any constraints on its inherent log- ic.3 This in turn is likely to make the results of textualism so unattrac- tive that it will lose out to rival approaches such as purposivism and in- tentionalism.4 Siegel has made a compelling argument and identified some poss- ible genuine weaknesses of textualism. I believe he is correct to con- clude that textualism is unlikely to win a decisive victory in the longstanding debate over interpretation. But both his normative cri- tique of textualism and his positive prediction about textualism’s fu- ture are overdrawn. In Part I of this Response, I take issue with elements of Siegel’s normative analysis. I argue that textualism’s adherence to text is † Associate Professor of Law, George Mason University School of Law. 1 Jonathan R. Siegel, The Inexorable Radicalization of Textualism, 158 U. PA. L. REV. 117, 178 (2009). 2 Id. at 144-45. 3 Id. at 153. -
Rule of Law and Constitution Building
Rule of Law and Constitution Building The Role of Regional Organizations Rule of Law and Constitution Building The Role of Regional Organizations Contributors: Sumit Bisarya Amanda Cats-Baril Sujit Choudhry Raul Cordenillo Nora Hedling Michelle Staggs Kelsall Lorraine Kershaw Kristen Sample Christoph Sperfeldt George Mukundi Wachira Hesham Youssef The Department of Legal Cooperation, Secretariat for Legal Affairs, Organization of American States Editors: Raul Cordenillo Kristen Sample International IDEA © International Institute for Democracy and Electoral Assistance 2014 International IDEA Strömsborg, SE-103 34, STOCKHOLM, SWEDEN Tel: +46 8 698 37 00, fax: +46 8 20 24 22 E-mail: [email protected], website: www.idea.int The electronic version of this publication is available under a Creative Commons Licence (CCl) – Creative Commons Attribute-NonCommercial-ShareAlike 3.0 Licence. You are free to copy, distribute and transmit the publication as well as to remix and adapt it provided it is only for non-commercial purposes, that you appropriately attribute the publication, and that you distribute it under an identical licence. For more information on this CCl, see: <http://creativecommons.org/licenses/by-nc-sa/3.0/>. International IDEA publications are independent of specific national or political interests. Views expressed in this publication do not necessarily represent the views of International IDEA, its Board or its Council members. Graphic design by: Turbo Design, Ramallah Cover photo: © Artist: faith47, photographer: Rowan Pybus Printed in Sweden ISBN: 978-91-87729-63-8 Foreword The past few years have seen remarkable social movements for democratic change emerge around the world. They have demanded greater justice and dignity, more transparent political processes, a fair share of political power and an end to corruption. -
Textualism, Contract Theory, and the Interpretation of Treaties
CURTIS J. MAHONEY Treaties as Contracts: Textualism, Contract Theory, and the Interpretation of Treaties ABSTRACT. With the nation's treaty obligations proliferating and foreign affairs cases taking up a growing share of the Supreme Court's docket, it is surprising how undertheorized the field of treaty interpretation remains. To fill this void, some have suggested that textualism, which has had a major impact on statutory interpretation over the past two decades, should be applied to treaty interpretation. This Note rebuts that notion and suggests instead that courts draw from modern contract theory in developing canons of treaty interpretation. AUTHOR. Yale Law School, J.D. zoo6; Harvard College, A.B. 20oo. The author wishes to thank Professor William N. Eskridge, Jr., for introducing him to the field of statutory interpretation and for advising the research project that led to this Note. He also wishes to thank Professor Akhil Amar, Aaron Crowell, Justin Florence, Kate Wiltenburg Todrys, and Kimberly Gahan for their comments on earlier drafts. Finally, he wishes to thank Rebecca Iverson Mahoney for all of her love and support. 824 Imaged with the Permission of Yale Law Journal NOTE CONTENTS INTRODUCTION 826 I. STATE OF THE DOCTRINE 827 A. Treaty Interpretation in the Supreme Court 829 B. The Theoretical Problem 833 II. THE CASE FOR TEXTUALISM APPLIED TO TREATIES 834 A. Originalism and Treaty Interpretation 834 B. Public Choice Theory and the Structural Case for Textualism in Statutory Interpretation 838 C. The Structural Argument Applied to Treaty Interpretation 841 D. The Practical Application of Textualism to Treaty Interpretation 844 III. -
Constitutional Interpretation the Old Fashioned
Constitutional Interpretation the Old Fashioned Way Justice Antonin Scalia delivered the following remarks at the Woodrow Wilson International Center for Scholars in Washington, D.C., on March 14, 2005. JUSTICE SCALIA: It’s a pizzazzy topic: Constitutional Interpretation. It is however an important one. I was vividly reminded how important it was last week when the Court came out with a controversial decision in the Ropercase. And I watched one television commentary on the case in which the host had one person defending the opinion on the ground that people should not be subjected to capital punishment for crimes they commit when they are younger than eighteen, and the other person attacked the opinion on the ground that a jury should be able to decide that a person, despite the fact he was under eighteen, given the crime, given the person involved, should be subjected to capital punishment. And it struck me how irrelevant it was, how much the point had been missed. The question wasn’t whether the call was right or wrong. The important question was who should make the call. And that is essentially what I am addressing today. I am one of a small number of judges, small number of anybody — judges, professors, lawyers — who are known as originalists. Our manner of interpreting the Constitution is to begin with the text, and to give that text the meaning that it bore when it was adopted by the people. I’m not a “strict constructionist,” despite the introduction. I don’t like the term “strict construction.” I do not think the Constitution, or any text should be interpreted either strictly or sloppily; it should be interpreted reasonably.