I'd be interested in Professor Rosenberg's reasons for using a hornbook as a primary teaching tool. In my experience teaching conlaw, I've found that many of my students have difficulty with the style of writing in the older cases. Has anyone ever tried using only cases from the modern era
What was the scope of Madison's proposed veto of state laws? Did it apply only to federal constitutional issues, that is, state lawsthat allegedly violated the U.S. Constitution? Or did the veto include state laws that raised no explicit federal constitutional issues but had an undesirable
Not to quibble. (Well yes maybe to quibble a little.) The question, as I
understood it, was never whether caselaw exists which overulled Lochner. Clearly there
is. Nor was the question whether there were cases containing language which stood for
the overruling of Lochner.(However, if the
Is there any significant literature describing the historical reasons for the failure of theCouncil of Revision considered for inclusion in the Constitution during the Founding generation? Additionally, was the Council conceived of as a constitutional court or rather as an institution for
Why would a self-described textualist, like Scalia, examine the constitutionality of a law while admitting that no text is involved authorizing or prohibiting the law (Printz)?Is it because if a textualist insists that that when the Constitution is silent, Congress may act, one is then turning
Chris Eisgruber writes:
And Marshall's claim that the framers "must be understood to have employed words in their natural sense, and to have intended what they have said" is very close (if not identical) to some of Dworkin's key claims in '"Freedom's Law."
Yet Marshall's claim (referred to
One of my conlaw students asks "Can you recommend an 'easy' book that reviews the history of the Framers and their party's goals, etc.?" By "their party's goals," I suspect the student means the Federalist party. Also, I imagine the student wants a contemporary or near contemporary primer on the
What are the requirements (or what triggers) en banc review in the Ninth Circuit? Are these requirements uniform across the circuits? As a former federal appellate clerk I should know the answer to this question. However, with some embarrassment, I confess that I do not and would welcome help
In a message dated 9/15/2003 10:32:31 PM Eastern Standard Time, [EMAIL PROTECTED] writes:
When a court orders a statewide remedy, there must be at least some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied."
Is John suggesting that a
Are there any historical, philosophical, or political, theoretic articles that attempt serious analysis of the familiar idea of "checks and balances" as one defining principle in American constitutionalism. Regarding "checks," I have something in mind along these lines. Popular political culture
I read recently that the U.S. lost the War of 1812 despite France's efforts to assist us in resisting England's belligerence. Are these contentions true? (They do not conform to my recollection of Junior High School history.) Since these questions are not entirely germane to the purposes of this
Can one justifiably infer from this discussion that the distinction between governmental and non-governmental emancipation of slaves is not a distinction between the government passing laws (or proposing amendments) abolishing slavery as opposed to non-governmental suasion toward the same end?
I find Paul's explanation, as well as Keith's (and I'm sure I'm leaving out others--for which I'm sorry) to be very helpful. However, one problem (for me) lingers. If John Marshall believed slavery should be abolished but not by governmental action, what did he mean by this and how did he think
In his John Marshall and the Constitution, Edward Corwin makes the astonishing (to me) remark: "He [Marshall] foiled a scheme which his party associates had devised, in view of the approaching presidential election, to transfer to a congressional committee the final authority in canvassing the
Perhaps I misread Bill's original post. I thought the issue was whether the same court (in my example, this would be the Supreme Court only) could, in any given case, make two different constitutional decisions: (1) nullify the law or (2) refuse to give the law effect. My interest in this issue
My apologies for sending a request intended for Mark Graber to the List. Sorry.
Bobby Lipkin
Widener University School of Law
Delaware
As a non-historian and a non-political scientist, let me asks the following questions: (1) Does originalism presuppose the Framers held one determinate view regarding constitutional meaning? Does it permit the Framers' holding several different views? (2) How does one establish such either view?
Dear Bob:
My choice would be this: A proposed amendment to the Constitution is ratified after a majority of the electorate in two consecutive presidential elections vote for it.
Best,
Bobby
Bobby Lipkin
Widener University School of Law
Delaware
Thanks to the members of the list who have generously responded to my requests. As you will see, I am genuinely confused about the historical and normative analysis of 'democracy' and 'republicanism.'
One problem I'm facing in trying to understand the Founding generation's conception of
I don't think anything I said or implied suggests separating democracy from majority rule. My point was that there are simple and complex conceptions of 'democracy.' While both include majority rule, only the latter appeals to moral and political concepts--equality, self-determination,
To say that "self-rule" potentially serves as a concept unifying individual self-rule and collective self-rule does not in any way imply that there are no differences in how these concepts work. As a unifying concept "self-rule" suggests important similarities not identities.
Different
The question of explaining "the sense in which overridden minorities still enjoy" freedom is endemic to any theory of democracy/republicanism/liberty or even the "absence of internal domination." Whenever less than a unanimous vote is concerned, how can the losers be described as engaging in
With the List's permission, let me add one additional, though minor, question: Does anyone know the reasons for referring to Jefferson's wing as the "democrat-republicans"? If the founding generation so disfavored democracy, why did the Jeffersonian wing use the term as a partial description of
The recent thread concerning the change in the LDS Church regarding polygamy--and let's be precise, it was polygamy not merely plural marriages-raises critically important questions about constitutional, moral, political, social, and personal change. (For example, change is central to the
In a message dated 7/16/2003 11:56:45 AM Eastern Daylight Time, [EMAIL PROTECTED] writes:
The LDS Church might believe in both 1] polygamy and 2] subordination to
legitimate civil authority as religious requirements. Then if these came
into conflict, some resolution would have to be reached, and
The processual dimension of the due process clause permits the prohibition of these rights (just not without the appropriate process) as much as their permission. I would think that a "libertarian revolution" would not be satisfied with a conception of liberty that can be easily denied merely by
In a message dated 7/14/2003 1:33:40 AM Eastern Daylight Time, [EMAIL PROTECTED] writes:
This strand has been particularly strained in my view, because there are, of course, a significant number of fundamentalist Mormons today who are polygamous in Utah, Arizona, and Nevada.
This is, of
Dear Rod,
In your view is Marci right about the existence of the Fundamentalist Mormon Church? Is that a name of an actual church? Thanks, Dean Smith.
Love,
Bobby
In a message dated 7/13/2003 11:40:47 AM Eastern Daylight Time, [EMAIL PROTECTED] writes:
Nothing that I see in these documents
precludes the possibility that the practice of plural marriages might be
revived if those temporal laws are someday changed.
But what evidence could the documents
In a message dated 7/12/2003 11:12:39 AM Eastern Daylight Time, [EMAIL PROTECTED] writes:
No doubt I'm missing something, but doesn't the PI argument still suffer from being limited to "citizens"?
I'm not sure how this is relevant to the point I hoped to make about resurrecting the privileges
If I understand the idea of "a libertarian revolution" correctly--I have not yet read Randy's article--it applies to emphasizing the liberty associated with the due process clause. Right? What about grounding the revolution in the privileges or immunities? Resurrecting the privileges or
I had originally asked the question about Whigs several months (maybe even a year) ago. At that time, some members of the List--I've sadly forgotten which ones--contacted me off-list asking me to share the results of my query with them. Keith Whittington's recent post is the most substantial
In a message dated 7/1/2003 12:11:32 PM Eastern Daylight Time, [EMAIL PROTECTED] writes:
I do believe, though, that he [Hamilton] favored very long terms for presidents, which certainly approaches the monarchical principle.
Was there much discussion--in or out of the Constitutional
I very much want to pursue the thread on assigning Grutter (and/or Gratz and Lawrence) for the first class session. Mindful of Sandy's admonition against doing so, I would welcome any thoughts on this scenario. I teach two-hour class sessions, and this Fall I will be teaching evening division
Sandy's post suggests a host of interesting issues that, I suggest, if the members agree, should be examined under a different thread--called "The Initiation of Judicial Review." First, for the sake of precision and I hope not be persnickety, my original post said "virtually initiated"
In a message dated 6/30/2003 12:12:33 PM Eastern Daylight Time, [EMAIL PROTECTED] writes:
But, of course, Marbury contains nary a word about judicial supremacy.
The language Sandy quotes says "judicial review/supremacy" to acknowledge that there might be a dispute about just what Marbury
In a message dated 6/27/2003 2:05:33 PM Eastern Daylight Time, [EMAIL PROTECTED] writes:
Here, no such evidence of bad Michigan motivation to distrust their judgment here.
The problem, of course, is that deference generally precludes engaging in just the kind of scrutiny that will
In responding to Sandy, I'm reminded of the old E. F. Hutton commercial ("When E. F. Hutton talks, people listen.") When Sandy Levinson talks against beginning Conlaw with a contemporary case--or about anything else for that matter--Conlaw teachers (should) listen. However, with all the
Did Madison ever publicly express his views specifically on the (il)legitimacy of Marbury or Marshallian judicial review? If so, are his views recorded? If yes, where? Thank you.
Bobby Lipkin
Widener University School of Law
Delaware
In a message dated 6/27/2003 9:39:48 AM Eastern Daylight Time, [EMAIL PROTECTED] writes:
All laws burden some persons more than other. So, if we are going to talk about disfavored classes (and this does seem to make sense to me) we need to talk either about the general pattern of law, the general
Is it true that the Canadian Constitution has a provision stating that affirmative action need not violate equal protection? I'd be happy to receive replies off-list.
Bobby Lipkin
Widener University School of Law
Delaware
In a message dated 6/26/2003 4:07:13 PM Eastern Daylight Time, [EMAIL PROTECTED] writes:
It is fine for a nominee to have a constitutional vision that includes the view that there is no general constitutional protection for personal privacy interests, but it is then up to Senators to decide
In a message dated 6/26/2003 7:48:06 PM Eastern Daylight Time, [EMAIL PROTECTED] writes:
Plessy really doesn't work as the comparison case here, since that was a case of the majority (caucasians) using the political process to advantage themselves and (more importantly) to disadvantage a
Sorry, my last post was unclear. I meant to indicate three points operating (at the time of my original post) in this thread: (1) Is there a general account (or for that matter any account at all) of when (how?) deference is permissible when strictly scrutinizing government action; or, for
I have a minor (I hope) question about strict scrutiny and Grutter. Justice O'Connor maintains that the Court should defer to the University regarding whether diversity is essential to the University's educational mission. She then denies that this implies that the court's scrutiny is any less
Are there any records of the Senate's confirmation of John Marshall? What process was involved in the confirmation process of Supreme Court appointments in the early Republic? Is there a general history of this process from the early Republic to today? On- or off-list replies are fine. Thanks.
I must also apologize for replying to the List, not to Louise alone. I will be more careful in the future.
Bobby Lipkin
Widener University School of Law
Delaware
Once again I turn to the List for assistance in two matters. (1) Since (but not including) the Founding, which great (famous) American statesmen (politicians) have contributed to our understanding of federalism. (2) In particular, do any of Lincoln's writings contain his conception of
I've been having trouble locating the Hibbs case. Will anyone help?
Bobby Lipkin
Widener University School of Law
Delaware
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