Constitutional commentary最新文献_第2页

Corporate Speech and the First Amendment: History, Data, and Implications 公司演讲和第一修正案:历史、数据和含义

Constitutional commentary Pub Date : 2015-02-27 DOI: 10.2139/ssrn.2566785

John C. Coates, IV

{"title":"Corporate Speech and the First Amendment: History, Data, and Implications","authors":"John C. Coates, IV","doi":"10.2139/ssrn.2566785","DOIUrl":"https://doi.org/10.2139/ssrn.2566785","url":null,"abstract":"This Article draws on empirical analysis, history, and economic theory to show that corporations have begun to displace individuals as direct beneficiaries of the First Amendment and to outline an argument that the shift reflects economically harmful rent seeking. The history of corporations, regulation of commercial speech, and First Amendment case law is retold, with an emphasis on the role of constitutional entrepreneur Justice Lewis Powell, who prompted the Supreme Court to invent corporate and commercial speech rights. The chronology shows that First Amendment doctrine long post-dated both pervasive regulation of commercial speech and the rise of the U.S. as the world’s leading economic power – a chronology with implications for originalists, and for policy. Supreme Court and Courts of Appeals decisions are analyzed to quantify the degree to which corporations have displaced individuals as direct beneficiaries of First Amendment rights, and to show that they have done so recently, but with growing speed since Virginia Pharmacy, Bellotti, and Central Hudson. Nearly half of First Amendment challenges now benefit business corporations and trade groups, rather than other kinds of organizations or individuals, and the trend-line is up. Such cases commonly constitute a form of corruption: the use of litigation by managers to entrench reregulation in their personal interests at the expense of shareholders, consumers, and employees. In aggregate, they degrade the rule of law, rendering it less predictable, general and clear. This corruption risks significant economic harms in addition to the loss of a republican form of government.","PeriodicalId":81001,"journal":{"name":"Constitutional commentary","volume":"32 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2015-02-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68206955","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: 8

Corporate Religious Liberty 企业宗教自由

Constitutional commentary Pub Date : 2015-02-01 DOI: 10.2139/SSRN.2384963

C. M. Corbin

引用次数: 13

The Civic Dimensions of American Constitutionalism 美国宪政的公民维度

Constitutional commentary Pub Date : 2015-01-01 DOI: 10.1017/CBO9781316015407.007

G. Thomas

引用次数: 0

Beard and Holmes on Constitutional Adjudication 比尔德和霍姆斯论宪法裁决

Constitutional commentary Pub Date : 2014-01-06 DOI: 10.2139/SSRN.2375271

Adrian Vermeule

{"title":"Beard and Holmes on Constitutional Adjudication","authors":"Adrian Vermeule","doi":"10.2139/SSRN.2375271","DOIUrl":"https://doi.org/10.2139/SSRN.2375271","url":null,"abstract":"What is the connection, if any, between the external perspective of the historian or political scientist and the internal perspective of lawyers and judges? That is the puzzle for constitutional law posed by Charles Beard’s classic, An Economic Interpretation of the Constitution of the United States (1913). Beard challenges us either to reconcile our external and internal perspectives on constitutionalism, or else conceivably to declare them irreconcilable.I begin by showing that standard approaches to constitutional adjudication – originalism and Dworkinian moralism – are resolutely internal and thus have little use for the external standpoint of Beardian scholarship. I then describe a strategy of reconciliation offered by Justice Holmes, one that connects external and internal perspectives by means of a nonideal theory of constitutional judging under political constraints. The theory holds that the rational judge chooses the course of action that, at lowest possible cost, adjusts constitutional law and policy to match “the actual equilibrium of force in the community – that is, conformity to the wishes of the dominant power[].” In this framework, Beardian scholarship offers external analysis of the shape and force of the political constraints that the Holmesian judge should take into account when making constitutional law. External Beardian scholarship helps to delineate the feasible political options or possibilities for constitutional law, a critical datum from the internal but nonideal perspective of the Holmesian judge.","PeriodicalId":81001,"journal":{"name":"Constitutional commentary","volume":"29 1","pages":"457-474"},"PeriodicalIF":0.0,"publicationDate":"2014-01-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68154804","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: 0

The challenge of, and challenges to, originalism 对原旨主义的挑战和挑战

Constitutional commentary Pub Date : 2013-08-09 DOI: 10.2139/SSRN.2278473

Lee J. Strang

{"title":"The challenge of, and challenges to, originalism","authors":"Lee J. Strang","doi":"10.2139/SSRN.2278473","DOIUrl":"https://doi.org/10.2139/SSRN.2278473","url":null,"abstract":"The Challenge of Originalism does many things well: it showcases the sophistication of current originalist scholarship; it displays the resonance that originalist arguments have with diverse and international audiences; and it reminds us that originalists are far from having won the debate. The Challenge of Originalism brings together some of the leading lights of originalist scholarship, and puts them in conversation with each other and with prominent critics. The Challenge of Originalism also, as all collections must, leaves out some important topics. Most prominent is originalism’s relationship to nonoriginalist precedent, a subject of significant scholarly interest over the past ten years. Also, The Challenge of Originalism introduces some of the key recent originalist moves, such as incorporating the concept of constitutional construction, without fully elucidating them. The essays in The Challenge of Originalism are consistently nuanced and thought-provoking. The Challenge of Originalism includes introductory material to originalism and the debates surrounding it, and its consistently high level of sophistication also makes it valuable to scholars already engaged in these debates. In Part II, I first describe the important contributions made by and in The Challenge of Originalism. In particular, The Challenge of Originalism showcases originalism’s sophistication and broad appeal. Then, in Part III, I suggest two important and unresolved challenges to originalism: (1) fully explaining the nature and scope of constitutional construction; and (2) describing what role, if any, nonoriginalist precedent retains in originalism. I end, in Part IV, by suggesting that the essays exemplify the chief reason for originalism’s continuing and broad-based allure — the reason it presents a challenge — the Constitution’s writtenness.","PeriodicalId":81001,"journal":{"name":"Constitutional commentary","volume":"29 1","pages":"111"},"PeriodicalIF":0.0,"publicationDate":"2013-08-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68057279","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: 0

The new originalist manifesto 新原旨主义宣言

Constitutional commentary Pub Date : 2013-03-22 DOI: 10.1093/acprof:oso/9780199793372.003.0002

J. Fleming

引用次数: 1

Justice Scalia and the Art of Rhetoric 大法官斯卡利亚和修辞艺术

Constitutional commentary Pub Date : 2011-09-23 DOI: 10.2139/ssrn.1932914

Jeffrey Shaman

引用次数: 3

What Would Justice Powell Do? The 'Alien Children' Case and the Meaning of Equal Protection 鲍威尔法官会怎么做？“外籍儿童”案及其平等保护的意义

Constitutional commentary Pub Date : 2009-01-05 DOI: 10.2139/SSRN.1803609

L. Greenhouse

引用次数: 1

Discrimination Between Religions: Some Thoughts on Reading Greenawalt's "Religion and the Constitution: Establishment and Fairness" 宗教间的歧视:对格里纳沃特《宗教与宪法:确立与公平》的解读

Constitutional commentary Pub Date : 2008-06-22 DOI: 10.4324/9781315088945-10

J. Finnis

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引用次数: 1

Originalism and its Discontents (Plus a Thought Or Two About Abortion) 原旨主义及其不满(再加上对堕胎的一两个想法)

Constitutional commentary Pub Date : 2008-03-05 DOI: 10.2139/SSRN.957630

Mitchell N. Berman

{"title":"Originalism and its Discontents (Plus a Thought Or Two About Abortion)","authors":"Mitchell N. Berman","doi":"10.2139/SSRN.957630","DOIUrl":"https://doi.org/10.2139/SSRN.957630","url":null,"abstract":"In Abortion and Original Meaning, Jack Balkin presents a new argument, based on his reconstruction of the principles that animated the Fourteenth Amendment, for the soundness of the result, though not the reasoning, of Roe v. Wade. That argument, however, serves the larger purpose of demonstrating why the debate between originalism and living constitutionalism rests on a false dichotomy. Once we reject the assumption that fidelity to the [constitutional] text means fidelity to original expected application, Balkin contends, we ought instead to agree that constitutional interpretation requires fidelity to the original meaning of the Constitution and to the principles that underlie the text. In maintaining such fidelity, moreover, [e]ach generation makes the Constitution their Constitution by calling upon its text and its principles and arguing about what they mean in their own time. It follows, Balkin claims, that [t]he choice between original meaning and living constitutionalism ... is a false choice. This short reply essay, to appear in a symposium devoted to Balkin's article, argues that Balkin mischaracterizes contemporary originalism and that his false choice claim cannot be maintained. Although Balkin is not alone in asserting that originalists believe that courts ought to be faithful to the originally expected applications of the constitutional text, almost no contemporary originalist theorist takes that view, and many have categorically rejected it. More important, though, is what follows once we all reject expectation originalism. Balkin's conclusion that originalism and non-originalism present a false choice rests squarely on his contention that fidelity to the Constitution requires fidelity to its original meaning and precludes contemporary interpreters from interpreting its text in accordance with other principles that the text can bear. Of course, it is precisely this claim that non-originalists deny. Yet Balkin presents precious little argument to support it, and nothing adequate to convince non-originalists that what they see as a true choice is in fact a false one. Not only is Balkin's proposed originalist method surprisingly undefended, but it seems inconsistent with his appreciation of the way that extra-judicial actors - especially social movements - shape constitutional meaning. Ironically, that understanding strongly suggests (though it does not entail) that the non-originalists have the better view of judicial constitutional interpretation. In short, this brief essay argues that, despite much in his article that is fresh and interesting, Balkin's empirical claim about the state of originalist argumentation rings false and his normative or conceptual claims about constitutional interpretation fail to persuade. The essay concludes by offering a few thoughts as well about the problem of abortion.","PeriodicalId":81001,"journal":{"name":"Constitutional commentary","volume":"24 1","pages":"383-404"},"PeriodicalIF":0.0,"publicationDate":"2008-03-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67908588","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: 4