Constitutional commentary最新文献

The Reality Principle 现实原则

Constitutional commentary Pub Date : 2019-01-01 DOI: 10.1007/springerreference_180483

Lawrence G. Sager, N. Tebbe

引用次数: 0

The Constitutional Marriage of Personality and Impersonality: Office, Honor, and the Oath 人格与非人格的宪法婚姻:公职、荣誉与誓言

Constitutional commentary Pub Date : 2018-06-02 DOI: 10.2139/SSRN.3189458

P. Horwitz

{"title":"The Constitutional Marriage of Personality and Impersonality: Office, Honor, and the Oath","authors":"P. Horwitz","doi":"10.2139/SSRN.3189458","DOIUrl":"https://doi.org/10.2139/SSRN.3189458","url":null,"abstract":"This short piece is written for a symposium on Randy J. Kozel’s 2017 book Settled Versus Right: A Theory of Precedent. It is part of a larger project on honor, oaths, and the Constitution. One key element of Kozel’s book is its identification of “impersonality” as a central good served by precedent. Assuming impersonality to be such a good, one can recognize that it is a hard goal to achieve in the face of contrary pressures. A source of motivation, energy, and agency is needed to fuel the judge’s efforts to achieve impersonality. \u0000In our constitutional culture, a troika of three interrelated concepts or institutions provides this motivation: The office, honor, and the oath. Together, they provide a sense of duty and constraint in filling a specific office; a sense of honor that encourages the office-holder to fulfill that duty, by creating both a desire to be well-regarded by one’s peers and an internalized sense that one ought to behave in a way that merits high regard; and, through the oath, a connection between the individual and the office, and between the office-holder and the commitment to act honorably in office. In short, this troika provides a deeply personal wellspring for the commitment to “impersonality” in judicial office. \u0000The argument here should be seen as part of a larger set of recent efforts in public law to focus on the nature and duties of the office-holder him- or herself, and not just on an impersonal system in which the office-holder and his or her duties and character are incidental. Some of this work focuses on the oath; some of it focuses on the fiduciary nature of public office; and some focuses on the character and virtue of public officials. This work is not confined to American scholarship and, although it has been given a push by recent events, substantially predates the current administration. It deserves attention as a stream of public law scholarship with varied approaches but, speaking in broad terms, a common focus.","PeriodicalId":81001,"journal":{"name":"Constitutional commentary","volume":"134 1-2","pages":"343-353"},"PeriodicalIF":0.0,"publicationDate":"2018-06-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41286885","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}

引用次数: 1

Originalist Theory and Precedent: A Public Meaning Approach 原旨主义理论与先例:一种公共意义的方法

Constitutional commentary Pub Date : 2018-03-29 DOI: 10.2139/SSRN.3165050

Lawrence B. Solum

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引用次数: 0

Taking Legitimacy Seriously: A Return to Deontology 认真对待合法性：回归道义论

Constitutional commentary Pub Date : 2017-09-22 DOI: 10.2139/SSRN.3209155

Eric Heinze

引用次数: 3

Family Reunification and the Security State 家庭团聚与安全国家

Constitutional commentary Pub Date : 2017-02-02 DOI: 10.2139/SSRN.2910489

Kerry Abrams

{"title":"Family Reunification and the Security State","authors":"Kerry Abrams","doi":"10.2139/SSRN.2910489","DOIUrl":"https://doi.org/10.2139/SSRN.2910489","url":null,"abstract":"The right to family unity and the government’s power over immigration have had a shifting and complex relationship to one another. This essay traces the history of this relationship, exploring the major shifts and upheavals. It argues that family rights and the federal immigration power have had three very different relationships over time. In the first period, family rights were robust but extra-constitutional, a bedrock assumption of how American democracy operated. Regardless of whether the nation was in a mode of conquest and expansion (and therefore encouraged migration), or in a mode of restriction (actively circumscribing immigration), family relationships were assumed by courts, administrators, and citizens to be important enough that they could override the state’s interest in regulating its borders. In the second period, which began roughly with the quota system in the 1920s and continued roughly through the 1980s, courts shifted to conceiving family rights and the immigration power as conflicting with one another, and when pressed they usually found that the government’s interest in restricting immigration and protecting its borders outweighed the interests of individual families in reuniting. Most recently, as family law itself has become “constitutionalized,” a new understanding is emerging, whereby individual family members have a constitutionally protected interest in their relationships, and the state’s national security and border regulation interests are recognized still as significant but must be balanced with these interests.","PeriodicalId":81001,"journal":{"name":"Constitutional commentary","volume":"32 1","pages":"247-280"},"PeriodicalIF":0.0,"publicationDate":"2017-02-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2910489","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49169717","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}

引用次数: 2

Objects of Interpretation 解释对象

Constitutional commentary Pub Date : 2016-06-22 DOI: 10.2139/SSRN.2809914

R. Ekins

引用次数: 9

Me the People 我是人民

Constitutional commentary Pub Date : 2016-05-11 DOI: 10.2139/SSRN.2778898

J. Mazzone

{"title":"Me the People","authors":"J. Mazzone","doi":"10.2139/SSRN.2778898","DOIUrl":"https://doi.org/10.2139/SSRN.2778898","url":null,"abstract":"This essay is a contribution to a symposium on Randy Barnett’s book, Our Republican Constitution: Securing the Liberty and Sovereignty of We the People (2016). The essay focuses on Barnett’s treatment of courts. On the one hand, Barnett complains, judicial decisions of the past produced a dangerous consolidation of governmental power and truncated rights. On the other hand, fixing the problem — restoring a “republican” constitution — requires highly motivated judges to keep power in check and promote rights. These two impulses are in tension and, at least without additional work on both the diagnostic and remedial sides, appear incompatible. The root of the tension is Barnett’s failure to perceive the inherent limits to judicial recognition of expansive constitutional rights when judicial power itself is consolidated. Barnett celebrates dispersed legislative and executive power as a means for states and localities to adopt different regulatory programs, with variation triggering citizen foot voting. He complains that such experimentation has become more difficult with legislative and executive powers increasingly concentrated at the national level because the end result is a one-size-fits-all regulatory scheme. Yet Barnett does not extend the same analysis to the courts, where a one-size-fits-all judicial scheme is equally problematic for Barnett’s constitutional vision. Consolidated judicial power, where ultimate authority rests in the Supreme Court of the United States, does not serve well to generate expansive rights for “We the People.” It is even less suited to Barnett’s own individualistic version of rights — a sort of “Me the People” — in which, he says, each of us is sovereign and courts exist to vindicate our own personal liberties. Barnett’s suggestion that courts really will get things right once they are stacked with originalist judges (and a few constitutional amendments are ratified) is a hypothesis unlikely to be tested anytime soon. In the interim, Barnett’s program could find hope in unexpected places: the jurisprudential approaches of Justices John Paul Stevens and Sonia Sotomayor point to a role for courts that would better promote experimentation and protect more securely individual rights along the lines Barnett himself advocates.","PeriodicalId":81001,"journal":{"name":"Constitutional commentary","volume":"31 1","pages":"143-174"},"PeriodicalIF":0.0,"publicationDate":"2016-05-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68314004","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}

引用次数: 20

'Frightening and High': The Supreme Court’s Crucial Mistake About Sex Crime Statistics “可怕而高”:最高法院对性犯罪统计的关键错误

Constitutional commentary Pub Date : 2015-09-16 DOI: 10.2139/SSRN.2616429

I. M. Ellman, T. Ellman

引用次数: 19

Corporate Democracy from Say on Pay to Say on Politics 企业民主从薪酬话语权到政治话语权

Constitutional commentary Pub Date : 2015-06-26 DOI: 10.2139/SSRN.2572528

Ciara Torres-Spelliscy

{"title":"Corporate Democracy from Say on Pay to Say on Politics","authors":"Ciara Torres-Spelliscy","doi":"10.2139/SSRN.2572528","DOIUrl":"https://doi.org/10.2139/SSRN.2572528","url":null,"abstract":"The President of the Business Roundtable once infamously said that “corporations were never designed to be democracies…” American courts respectfully disagree and have repeatedly held that the democratic rights of shareholders are sacrosanct. The context for the Business Roundtable President’s comment was the battle over say on pay — a battle the Business Roundtable lost in the United States with the passage of the financial reform legislation known as Dodd-Frank. As I will explain in this piece, courts’ robust conception of corporate democracy rights for shareholders should protect both shareholders’ ability to have a say on pay and say on politics. Say on pay is the practice in United States, among other nations, of mandating a non-binding shareholder vote on executive compensation at publicly traded firms. A shareholders’ say on politics does not yet exist in America. But theoretically, just as say on pay mandates shareholder democracy in the case of executive remuneration, say on politics would require shareholders to vote on corporate political spending. Binding say on politics votes already exist in the U.K. Critiques of say on pay and say on politics have been couched as constitutional objections based on either the Tenth or First Amendments of the U.S. Constitution. But at their heart, these objections seem less rooted in the text of the Constitution and more inspired by a cribbed conception of shareholders’ corporate voting rights. To untangle who has the stronger legal argument requires a review of how American courts have conceptualized “corporate democracy.” I conclude that as framed by key courts such as the U.S. Supreme Court, the D.C. Circuit Court of Appeals and the Delaware state courts, “corporate democracy” is a capacious enough concept to justify both shareholders’ say on pay and say on politics.","PeriodicalId":81001,"journal":{"name":"Constitutional commentary","volume":"30 1","pages":"431-461"},"PeriodicalIF":0.0,"publicationDate":"2015-06-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2572528","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68209102","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}

引用次数: 14

The Dark Future of Constitutionalism 宪政的黑暗未来

Constitutional commentary Pub Date : 2015-03-19 DOI: 10.2139/SSRN.2580783

Dennis Patterson

引用次数: 1