{"title":"The Dark Future of Constitutionalism","authors":"Dennis Patterson","doi":"10.2139/SSRN.2580783","DOIUrl":"https://doi.org/10.2139/SSRN.2580783","url":null,"abstract":"This essay is a review of Alexander Somek’s book \"The Cosmopolitan Constitution\" (OUP, 2014). After summarizing the main argument of the book, the essay pursues two lines of criticism. First, it contends that Somek’s treatment of legal pluralism relies on an insufficiently articulated distinction between law and politics. Second, it maintains that Somek overstates the negative effects of global capitalism on nation-state democracy. The essay concludes that the future of constitutionalism is less dark than Somek would have it, but also – these criticisms notwithstanding – that this is a remarkable book that no one can ignore.","PeriodicalId":81001,"journal":{"name":"Constitutional commentary","volume":"30 1","pages":"667"},"PeriodicalIF":0.0,"publicationDate":"2015-03-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68212513","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":"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}
{"title":"Corporate Religious Liberty","authors":"C. M. Corbin","doi":"10.2139/SSRN.2384963","DOIUrl":"https://doi.org/10.2139/SSRN.2384963","url":null,"abstract":"Do for-profit corporations have a right to religious liberty? This question was before the Supreme Court for the first time in a challenge to the Affordable Care Act’s “contraception mandate.” According to Burwell v. Hobby Lobby Stores, Inc., the answer is yes: for-profit corporations are “persons” entitled to religious exemptions under the Religious Freedom Restoration Act.This Article argues that there is no principled basis for granting religious liberty exemptions to for-profit corporations. For-profit corporations do not possess the inherently human characteristics that justify religious exemptions for individuals. For-profit corporations also lack the unique qualities that justify exemptions for religious associations such as churches. Finally, corporate religious liberty risks trampling on the employment rights and religious liberty of individual employees.","PeriodicalId":81001,"journal":{"name":"Constitutional commentary","volume":"881 1","pages":"277-308"},"PeriodicalIF":0.0,"publicationDate":"2015-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68165382","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":"The Civic Dimensions of American Constitutionalism","authors":"G. Thomas","doi":"10.1017/CBO9781316015407.007","DOIUrl":"https://doi.org/10.1017/CBO9781316015407.007","url":null,"abstract":"","PeriodicalId":81001,"journal":{"name":"Constitutional commentary","volume":"30 1","pages":"61"},"PeriodicalIF":0.0,"publicationDate":"2015-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/CBO9781316015407.007","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"57119882","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":"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}
{"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}
{"title":"Justice Scalia and the Art of Rhetoric","authors":"Jeffrey Shaman","doi":"10.2139/ssrn.1932914","DOIUrl":"https://doi.org/10.2139/ssrn.1932914","url":null,"abstract":"This article examines Justice Scalia's judicial opinions from a literary perspective rather than a legal one to demonstrate that he is a master of metaphor and other belletristic flourishes. Focusing on the style rather than the substance of his writing, the article uses examples from various Scalia opinions to illustrate that he wields a wicked poison pen, peppers his opinions with creative lists of examples, and is wont to drop in a bon mot here and there, not to mention an arcane foreign phrase that sends lesser mortals rushing to their Latin, French, or German dictionaries. Along the way, the article reveals some fascinating information about the tropes and allusions that Justice Scalia uses. And between the lines, the article offers criticism of Scalia's conservative philosophy.","PeriodicalId":81001,"journal":{"name":"Constitutional commentary","volume":"28 1","pages":"287-292"},"PeriodicalIF":0.0,"publicationDate":"2011-09-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67799915","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":"What Would Justice Powell Do? The 'Alien Children' Case and the Meaning of Equal Protection","authors":"L. Greenhouse","doi":"10.2139/SSRN.1803609","DOIUrl":"https://doi.org/10.2139/SSRN.1803609","url":null,"abstract":"The current immigration debate adds renewed relevance to the Supreme Court's 1982 decision in Plyler v. Doe, holding that a state that provided a free public education to any child had to provide it to all children, including undocumented immigrants. Justice Brennan wrote for a 5-4 Court, with the full, if seemingly unlikely, concurrence of his conservative colleague, Lewis F. Powell Jr. This article tells the back story of how these two very different Justices came to agreement in this important case.","PeriodicalId":81001,"journal":{"name":"Constitutional commentary","volume":"25 1","pages":"29-50"},"PeriodicalIF":0.0,"publicationDate":"2009-01-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67748695","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":"Discrimination Between Religions: Some Thoughts on Reading Greenawalt's \"Religion and the Constitution: Establishment and Fairness\"","authors":"J. Finnis","doi":"10.4324/9781315088945-10","DOIUrl":"https://doi.org/10.4324/9781315088945-10","url":null,"abstract":"Suppose the core teachings of a religion with a significant number of followers inside and outside the United States entail that significant parts of the United States Constitution, including the free exercise and establishment clauses of the First Amendment, ought to be replaced either by peaceful processes such as voting or, if need be, by threats and use of force, and that governance of the United States, or of such regions, big or small, as can be brought under the religion's sway, ought to be entrusted to its followers. Would it be constitutional for Congress to forbid the entry to the United States of members of that religion unwilling to make a public declaration renouncing that teaching? Should it be? I raise these questions as a kind of test of the thesis prominent in Kent Greenawalt's fine book, that both of the religion clauses \"forbid discrimination among religions\" (p. 13) (emphasis in original), and that \"[ o ]ne of the most powerful principles of the religion clauses is that the government may not favor some religions at the expense of others\" (p. 212). You may say: Please, let's just stay in the real world. And spare us the embarrassment of trolling through other people's","PeriodicalId":81001,"journal":{"name":"Constitutional commentary","volume":"181 1","pages":"265-271"},"PeriodicalIF":0.0,"publicationDate":"2008-06-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70628040","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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