University of Pennsylvania journal of constitutional law最新文献

{"title":"The Brandenburg Paradigm and Other First Amendments","authors":"Steven G. Gey","doi":"10.2139/SSRN.1429152","DOIUrl":"https://doi.org/10.2139/SSRN.1429152","url":null,"abstract":"This article addresses the fracturing of modern First Amendment law into multiple different sets of rules and rationales for the protection of speech, depending on what kind of speech is an issue. It is no longer accurate to say that there is one universal First Amendment jurisprudence; indeed, it is no longer accurate to say that there is one First Amendment. Today there are many different - often very different - First Amendments for different types of speech. On a practical level, this fracturing of First Amendment law creates difficulties only in that it requires litigators and judges addressing First Amendment issues to identify the category or categories into which a particular example of speech fits. But on a theoretical level, the fracturing of First Amendment jurisprudence is much more problematic. These theoretical problems arise because First Amendment jurisprudence is not just a collection of narrow rules and doctrines. These rules and doctrines are based on series of presuppositions about the nature of individuals, the proper relationship between the government and its citizens, the extent to which society should accept risks posed by dangerous or antisocial ideas, and the liability of speakers for the consequences of their speech. The problem is that the courts make one set of assumptions when dealing with one area of expression and very different (and often contradictory) assumptions when dealing with other areas of expression. The article starts by describing the baseline for all free speech jurisprudence - the jurisprudence that applies to political advocacy. It then distills from the Court's major political speech cases a set of principles that will be called \"the Brandenburg paradigm.\" The remainder of the article discusses whether the theoretical assumptions made in the Brandenburg paradigm should also be applied to areas of speech other than political advocacy. Several areas of expression are addressed specifically, including threats, obscenity, \"teaching speech,\" and student speech in public schools. An assessment of these different speech categories indicates that there is no good reason to ignore the Brandenburg paradigm outside the political advocacy category. Indeed, there is one very good reason to apply the Brandenburg paradigm to the entire range of First Amendment issues: The assumptions that underlie Brandenburg - for example, that citizens control the government rather than vice versa, that citizens should develop their own value systems free of government coercion, and that the government should suppress ideas it dislikes only in the face of serious, concrete harms stemming from that expression - should not be regarded solely as artifacts of the First Amendment, but rather as indispensable elements of constitutional democracy itself.","PeriodicalId":90761,"journal":{"name":"University of Pennsylvania journal of constitutional law","volume":"12 1","pages":"971"},"PeriodicalIF":0.0,"publicationDate":"2009-07-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68180282","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":"Interpreting the Thirteenth Amendment","authors":"A. Tsesis","doi":"10.2139/SSRN.1448852","DOIUrl":"https://doi.org/10.2139/SSRN.1448852","url":null,"abstract":"This article develops a pragmatic proposal for passing federal civil rights statutes pursuant to the Thirteenth Amendment. It begins with an analysis of Supreme Court precedents and turns to the amendment's contemporary applications. I am particularly concerned here with developing a legislative approach that will cautiously build on Supreme Court jurisprudence to identify the scope of congressional enforcement authority.The Thirteenth Amendment provides the federal government with the power to enact legislation that criminalizes certain private acts of discrimination. Congress may pass necessary and proper laws that can reasonably be expected to end subordinating infringements against individual rights. In significant circumstances, several of which are discussed here, the Thirteenth Amendment covers anti-social behavior that is beyond the scope of the Fourteenth Amendment and Commerce Clause, even though these two are more commonly relied on for civil rights enforcement. Given the sparseness of Thirteenth Amendment precedents, broadening its reach is more likely to succeed through incremental policymaking. This step-by-step strategy is analogous to the NAACP’s successful approach to litigation in the Fourteenth Amendment area. If this initial, pragmatic effort succeeds in the courts, Congress can later be more expansive in passing laws against discrimination targeting a range of identifiable groups.","PeriodicalId":90761,"journal":{"name":"University of Pennsylvania journal of constitutional law","volume":"11 1","pages":"1337"},"PeriodicalIF":0.0,"publicationDate":"2009-03-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68182606","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":"California Constitutionalism: Trust in Government and Direct Democracy","authors":"S. Griffin","doi":"10.2139/SSRN.1114115","DOIUrl":"https://doi.org/10.2139/SSRN.1114115","url":null,"abstract":"This article provides a fresh perspective on direct democracy by focusing on its origins and persistence in California and by employing evidence from historical and social science research. My main thesis is that the origins and persistence of direct democracy has to do with the problem of trust in government. Focusing on the problem of trust establishes a new context for understanding direct democracy. In particular, I argue that the problems of direct democracy cannot be solved without confronting the equally serious problems citizens perceive with representative government. The two are twinned for all practical purposes. In order to show this, I retell in Part I the story of the adoption of direct democracy to highlight the difficult situation faced by California as a new state that featured the large-scale failure of the founders' eighteenth-century representative institutions to cope with the conditions present in late-nineteenth century America. In Part II, I first review the contemporary status of direct democracy in California in relation to the problem of trust in government. I then present a detailed historical explanation of the decline of trust in government in the U.S. by reviewing the most relevant social science evidence. The discussion shows that the problem of trust in government is a national problem extending back to the 1960s and that the use of direct democracy in California and other states will persist until the problems citizens have with representative government are acknowledged and addressed.","PeriodicalId":90761,"journal":{"name":"University of Pennsylvania journal of constitutional law","volume":"11 1","pages":"551"},"PeriodicalIF":0.0,"publicationDate":"2008-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68141769","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":"Indians and Invaders: The Citizenship Clause and Illegal Aliens","authors":"Gerard N. Magliocca","doi":"10.31228/osf.io/68zhg","DOIUrl":"https://doi.org/10.31228/osf.io/68zhg","url":null,"abstract":"10 University of Pennsylvania Journal of Constitutional Law 499","PeriodicalId":90761,"journal":{"name":"University of Pennsylvania journal of constitutional law","volume":"10 1","pages":"499"},"PeriodicalIF":0.0,"publicationDate":"2008-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69639514","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 Takings Clause, Version 2005: The Legal Process of Constitutional Property Rights","authors":"Mark Fenster","doi":"10.2139/SSRN.888755","DOIUrl":"https://doi.org/10.2139/SSRN.888755","url":null,"abstract":"The three takings decisions that the Supreme Court issued at the end of its October 2004 Term marked a stunning reversal of the Court's efforts during the past three decades to use the Takings Clause to define a set of constitutional property rights. The regulatory takings doctrine, which once loomed as a significant threat to the modern regulatory state, now appears after Lingle v. Chevron to be a relatively tame, if complicated, check on exceptional instances of regulatory abuse. At the same time, the Public Use Clause, formerly an inconsequential limitation on the state's eminent domain authority, now appears ripe for revision and tightening after a stirring four-justice dissent in Kelo v. City of New London and an enormous public protest decrying the majority decision. Notwithstanding this reversal, the 2005 decisions offer a coherent approach to Takings Clause enforcement - albeit one that is likely to frustrate commentators, theorists, and property rights advocates. More clearly than ever before, the Court in its 2005 decisions abandoned the difficult, if not impossible, task of providing a clear normative justification for the Takings Clause. Instead, its decisions reveal a marked preference for preserving and furthering its vision of an institutional system of governance - a jurisprudence that is focused on the question of who should decide rather than on the substantive issue of what should be decided, and that is committed to the passive virtue of deference. In short, the Rehnquist Court explicitly chose to adopt a legal process approach to takings. Because it privileges structure and process over explicit considerations of substantive legal and normative issues, this approach is unsatisfactory to property and constitutional theorists; because it defers to government decisions, it is maddening to property rights advocates; and because it is technocratic and abstract, it is unsatisfactory to the public. Given the prominence of the legal process approach to constitutional review of state regulatory action in the post-New Deal era, however, judicial passivity remains attractive, if unromantic, to judicial actors. Ultimately, recognizing the Court's shift away from defining constitutional property rights via the Takings Clause offers important descriptive and prescriptive insights into the future of takings law in the Roberts Court, especially if a majority of justices decide to tighten review of eminent domain actions or otherwise heighten judicial review under the Takings Clause.","PeriodicalId":90761,"journal":{"name":"University of Pennsylvania journal of constitutional law","volume":"9 1","pages":"667"},"PeriodicalIF":0.0,"publicationDate":"2006-03-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67857306","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":"Who's Afraid of Unenumerated Rights?","authors":"Randy E. Barnett","doi":"10.2139/SSRN.880715","DOIUrl":"https://doi.org/10.2139/SSRN.880715","url":null,"abstract":"Unenumerated rights are expressly protected against federal infringement by the original meaning of the Ninth Amendment and against state infringement by the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment. Despite this textual recognition, unenumerated rights have received inconsistent and hesitant protection ever since these provisions were enacted, and what protection they do receive is subject to intense criticism. In this essay, I examine why some are afraid to enforce unenumerated rights. While this reluctance seems most obviously to stem from the uncertainty of ascertaining the content of unenumerated rights, I contend that underlying this concern are more basic assumptions about legislative sovereignty and the proper role of judges. I explain why a proper conception of constitutional legitimacy requires that unenumerated rights be protected somehow, that judicial protection is not as problematic as commonly thought once it is acknowledged that all liberty may be reasonably regulated (as opposed to prohibited), and that we need to ascertain the scope of unenumerated rights only to identify wrongful behavior that may be prohibited altogether because it invariably violates the rights of others.","PeriodicalId":90761,"journal":{"name":"University of Pennsylvania journal of constitutional law","volume":"63 1","pages":"1"},"PeriodicalIF":0.0,"publicationDate":"2006-02-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67853402","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 Evolution of Sherman Act Jurisdiction: A Roadmap for Competitive Federalism","authors":"Bruce Johnson, Moin A. Yahya","doi":"10.7939/R3CC0V76F","DOIUrl":"https://doi.org/10.7939/R3CC0V76F","url":null,"abstract":"Scholars and jurists increasingly acknowledge that the U.S. Supreme Court's Commerce Clause jurisprudence desperately needs a new direction. Even Laurence Tribe, widely regarded as a liberal commentator, concedes that until very recently the Court's decisions in this area came dangerously close to foreclosing it from imposing any kind of principled constitutional limitation on the scope of Commerce Clause jurisdiction.3 Chief Justice Rehnquist has openly admitted that much of the case law in this area is less than a model of clarity.4 In what has been heralded by some as the Rehnquist Court's \"celebrated project to re-establish structural constitutional principles on federalism,' ' and by others more prosaically as \"the new federalism, ''6 recent Supreme Court cases have imposed Tenth Amendment","PeriodicalId":90761,"journal":{"name":"University of Pennsylvania journal of constitutional law","volume":"7 1","pages":"403"},"PeriodicalIF":0.0,"publicationDate":"2004-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71370042","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":"Who's Afraid of Virginia Dare? Confronting Anti-Abortion Terrorism After 9/11","authors":"C. Mason","doi":"10.4324/9781315710419-10","DOIUrl":"https://doi.org/10.4324/9781315710419-10","url":null,"abstract":"Anti-abortion terrorism blatantly exemplifies the contradiction of claiming human rights for the unborn while denying them to women and clinic workers. When so-called pro-lifers' began, paradoxically enough, to kill for life in the early 1990s, pro-choice advocates screamed \"hypocrisy,\" but anti-abortion organizations barely suffered. 2 On the contrary, the most militant pro-lifers were emboldened and began to openly air their apocalyptic ideas that abortion is a sign of the \"End Times\" of humanity and life itself.3 Few pro-choice organizations understood the significance in the shift away from \"rescue\" and toward apocalypse. Feminist scholars were busy examining the fetus as text in popular culture and the public sphere or seeking, in the name of gender analysis, if not coalition building, compromise and common ground among pro-life and pro-choice women.","PeriodicalId":90761,"journal":{"name":"University of Pennsylvania journal of constitutional law","volume":"6 1","pages":"796"},"PeriodicalIF":0.0,"publicationDate":"2004-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70436793","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":"Federalism, Free Exercise, and Title VII: Reconsidering Reasonable Accommodation","authors":"J. Oleske","doi":"10.2139/SSRN.476621","DOIUrl":"https://doi.org/10.2139/SSRN.476621","url":null,"abstract":"Title VII's reasonable-accommodation provision sits at the crossroads of two controversial and evolving Supreme Court doctrines. The first of these doctrines holds that Congress can only abrogate state-sovereign immunity pursuant to legislation that is \"congruent and proportional\" to the task of safeguarding constitutional rights. The second holds that the Free Exercise Clause of the First Amendment does not grant a general right to religious accommodation. The combined effect of the Court's recent federalism and free-exercise decisions has been to create considerable uncertainty as to whether Title VII's reasonable-accommodation provision validly abrogates state-sovereign immunity. That uncertainty is exacerbated because the Court has not yet established the precise contours of the congruence-and-proportionality test and has left the door open to free-exercise accommodations in certain, poorly defined circumstances. This article comprehensively discusses the threat to Title VII's reasonable-accommodation provision and contends that the Court should find the provision fully applicable in private actions against state employers. In addition, this article explains how the Court could use a state-employer challenge to Title VII's reasonable-accommodation provision as a vehicle for clarifying the ambiguities that remain in both its federalism and free-exercise doctrines.","PeriodicalId":90761,"journal":{"name":"University of Pennsylvania journal of constitutional law","volume":"6 1","pages":"525"},"PeriodicalIF":0.0,"publicationDate":"2003-12-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67744867","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 Original Meaning of the Necessary and Proper Clause","authors":"Randy E. Barnett","doi":"10.2139/SSRN.410542","DOIUrl":"https://doi.org/10.2139/SSRN.410542","url":null,"abstract":"This article presents evidence of the original public meaning of the Necessary and Proper Clause. I show that the meanings of \"necessary\" we have inherited from John Marshall's discussion in McCulloch v. Maryland - a choice between \"indispensably requisite\" on the one hand and mere \"convenience\" on the other - is undercut by the available evidence. The truth lies somewhere in between. While these findings will, of course, be of interest to originalists, they should also interest the many constitutional scholars who consider original meaning to be one among several legitimate modes of constitutional analysis, as well as those scholars for whom original meaning is the starting point of a process in which it is \"translated\" into modern terms. By either account, it is important to get the original meaning right, even if it is not alone dispositive of today's cases and controversies. This is the companion to two previous articles - \"The Original Meaning of the Commerce Clause\" 68 U. Chi. L. Rev. 101(2002) and \"New Evidence on the Original Meaning of the Commerce Clause\" 55 U. Ark. L. Rev. 847 (2003) - in which I presented evidence of the public meaning of Congress's power \"To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.\" To determine the constitutionality of any particular legislation and evaluate judicial applications of the Commerce Clause, however, we must also consider the meaning of the Necessary and Proper Clause. For the expansive post-New Deal reading of congressional power owes as much to the Supreme Court's interpretation of the Necessary and Proper Clause as it does to its expansive reading of the Commerce Clause.","PeriodicalId":90761,"journal":{"name":"University of Pennsylvania journal of constitutional law","volume":"6 1","pages":"183"},"PeriodicalIF":0.0,"publicationDate":"2003-05-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68695342","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}