Professor Of Constitutional Law Research Articles

Is the Patient Protection and Affordable Care Act Constitutional?

THE CALIFORNIA Journal of Politics & Policy Volume 3, Issue 4 Is the Patient Protection and Affordable Care Act Constitutiona l? Laurence H. Tribe Harvard University Roger Pilon Cato Institute Abstract This is an edited transcript of a debate sponsored by the Commonwealth Club of California and the Institute of Governmental Studies, University of Califor- nia, Berkeley. The speakers were Laurence H. Tribe, the Carl M. Loeb Profes- sor and Professor of Constitutional Law at Harvard Law School, and Roger Pilon, Vice President for Legal Affairs and Director of the Center of Constitutional Stud- ies at the Cato Institute. The debate was moderated by Jesse Choper, Earl Warren Professor of Law at the University of California, Berkeley Law School. Keywords: health care reform, The Affordable Health Care Act Copyright © 2011 The Berkeley Electronic Press. All rights reserved. www.bepress.com/cjpp

The European Court of Human Rights: judging nondiscrimination

* Professor of Constitutional Law, Faculty of Law, University of Milano-Bicocca; Judge of the Italian Constitutional Court. The opinions expressed in this article are strictly personal and do not involve the institutions to which I am presently affilied to. 1 Carmelo Danisi, How far can the European Court of Human Rights go in the fight against discrimination? Defining new standards in its nondiscrimination jurisprudence, 9 Int’l J. Const. L. (I•CON) (2011).

The Coming Law School Bubble

A man who has described himself as a constitutional law professor at the University of Chicago is now president of the United States. Another law professor, Cass Sunstein, is one of his chief advisors, while a third, Elena Kagan, has been appointed to the Supreme Court. One might think these are fat years for legal academe. But as in the story of Joseph, these fat years may portend an impending crisis. Market forces and internal law school policies may be combining to produce a legal education bubble the likes of which the country has never seen. Consider the following facts.

The Curious Confluence of Legal Influence

This brief article argues that there is little diversity in the most influential positions within the legal profession. It begins by looking at the educational background of Supreme Court Justices and nominees since 1959. It then looks at the educational background of U.S. constitutional law professors. It argues that those appointed to these positions of influence are becoming increasingly similar in the important characteristic of legal education. Coinciding with this, legal influence is also subject to a significant geographic bias. It concludes by suggesting that to achieve truer diversity, those with legal influence must recognize their tendency toward selecting those like themselves and overcome it.

Cross Purposes: Pierce V. Society of Sisters and the Struggle Over Compulsory Public Education by Paula Abrams

 Reviews the economy of the Pacific Northwest, Native Americans,Asians,European immigrants,and native-born white workers — whether men, women, or children — were essential to the successful harvesting of these crops. That diversity of labor extends to the Southwest, where Wyman examines the westward expansion of cotton from east Texas. As farmers adopted different strains of cotton that could handle the growing conditions of the arid region, temporary, seasonal laborers again proved necessary for crop cultivation and harvest.Building on a tradition of AfricanAmerican labor, cotton farmers, especially in west Texas and Arizona,used Mexican labor to fill the labor void.Mexican workers found work picking cotton as well as laboring in railroad construction throughout the Southwest. With the introduction of sugar beets in the Great Plains, Mexicans as well as European immigrant families supplied the necessary labor for that industry to be successful. Moreover, California farmers, who have developed the most diversified agricultural system in theAmerican West, employed the full ethnic spectrum of laborers in fields from the Imperial Valley to the upper reaches of the San Joaquin Valley. Wyman rounds out this study with an examination of the one labor union that sought to bring this polyglot of workers together into an organization that could better their condition and change the economic system that relied upon labor exploitation for its success. Of course, the federal government, with the support of state governments and farmers’ associations,crushed the IndustrialWorkers of the World. With the advent of the automobile and the flood of Mexican labor into the West in the 1920s, the modern era of farm labor was poised to change the social narrative.What did not change, however, is the inherent nature of worker exploitation in western commercial agriculture Greg Hall Western Illinois University Cross Purposes: Pierce v. Society of Sisters and the Struggle over Compulsory Public Education by Paula Abrams University of Michigan Press, Ann Arbor, 2009. Illustrations, notes, index. 280 pages. $65.00 cloth. The Oregon Compulsory School Bill of 1922 was a controversial initiative measure corrosive in its origins and historic in its consequences. PaulaAbrams,Professor of Constitutional Law at Lewis and Clark Law School, has written a detailed account of thebrief lifeof that measure and its legacy after the U.S. Supreme Court declared it unconstitutional in 1925.AsAbrams follows the bumpy journey of the School Bill and the legal battle that followed its passage, the book becomes a case study of the interplay of politics, culture, and law. Few observers could have predicted in May 1920 that a resolution by the Supreme Council of the Scottish Rite Masons, Southern Jurisdiction , proposing mandatory attendance at public schools for children between the ages of eight and sixteen, would become a legal milestone in Oregon and American history. The reaction was muted when the Masonic Grand Lodge of Oregon endorsed the proposal in June 1920. But the issue soon erupted into a bitter struggle that divided churches,organizations ,and communities and contributed to the dramatic growth of the Ku Klux Klan, which entered Oregon in 1921.Ultimately,the Oregon initiative was the catalyst for the lawsuit Pierce v. Society of Sisters. The school fight began quietly and escalated rapidly.During his unsuccessful primary campaign for governor in early 1922, Republican State Senator Charles Hall, with Klan support, introduced the compulsory school idea,which coincided with the national Klan’s “One Flag, One School” campaign. In July 1922, a small group of prominent Masons and the leaders of some patriotic societies in Portland filed the School Bill initiative for the November general  OHQ vol. 111, no. 3 election. Private school advocates, already on the defensive,mounted an aggressive campaign against it.Catholics,who comprised only about eight percent of the state population, financed most of the local opposition. The Lutheran Schools Committee, which had waged a successful defense of private schools in Michigan, pursued a parallel path separate from the Catholics , while other denominational schools and Hill MilitaryAcademy played only minor roles. The book’s strength is its description of the interaction of local churches and organizations with national institutions and denominational hierarchies on both sides of the issue.Disagreements about strategy and goals were frequent. Some opponents...

Funciones del jurista y transformaciones del pensamiento jurídico-político español (1870-1945) (I)

Spanish Constitutional History is also de history of the Spanish legal scholars’ conceptions about the Constitution, politics, the State and the legitimacy of power. Consequently, this article will describe these representations and the morphology of the successive legal and political paradigms during the Restoration, the Second Spanish Republic and the early years of Franco’s regime, as well as the role assigned to the constitutional law professor within these paradigms. Submission Date: 12/03/2010 Acceptance Date: 22/04/2010

Is it the Right Revolution? On Tushnet'sThe Rights Revolution in The Twentieth Century

This is yet another manuscript by one of the most interesting and prolific American constitutional law professors that the Critical Legal Studies movement has produced. Mark Tushnet has written extensively and influentially in the fields of both American and comparative constitutional law. He is a known expert on twentieth century American legal history, bringing this expertise to bear in writing his ambitious and most recent book,The Rights Revolution in the Twentieth Century.This review of an early draft of the book will consist of three parts. The first portrays Tushnet's descriptive enterprise in a nutshell. The second discusses the historical dimensions of Tushnet's work. The last evaluates its contribution to legal theory along the lines suggested by Alon Harel.

Reflections on constitutional law

In a trend that disturbs nationally known constitutional scholar George Anastaplo, law schools now place very little emphasis on the study of the United States Constitution as a document. Today, many constitutional law professors spend less than a week teaching the history, philosophical tenets, and legal origins of the Constitution itself and more time on Supreme Court cases. In Reflections on Constitutional Law, Anastaplo emphasizes the continuing significance and importance of the Constitution, by examining the most important influences on the American constitutional system, including the Magna Carta and the Declaration of independence. According to Anastaplo, a rigorous understanding of the Constitution is crucial to comprehending the true meaning of Supreme Court decisions.

The American South and the Self

Each region of United States has a particular identity hewn from history and culture. Yet none is as distinctive as South, and none has been imbued with such historical weight in nation's making or afforded such metaphorical significance in its collective memory and mythological self-understandings. For centuries New England was understood as genesis and crystallization of American civilization and endlessly unfolding, ever renewing West as embodiment of America's promise. South, however, was America's opposite, its negative image, its evil twin--an alien member of national family, in literary critic Fred Hobson's apt phrase. The South--more accurately, white South--thus was in word and deed among places in America: exceptional in its fierce commitment to slavery, in its failed experiment with secession and nationhood, in its military defeat and occupation by a conquering power, in its poverty, cultural backwardness, and religiosity, and in its pervasive, prolonged resistance to racial justice. This exceptionalism, as much in identity as in practice, historically has been so profound as to provoke repeated changes in nation's laws governing citizenship rights. As Sanford Levinson, a professor of constitutional law at University of Texas, argues, The issues presented by South, as a distinctive region [of United States], have, since founding of our nation, presented most exquisite difficulties in terms of establishing a truly coherent national identity. In establishing this unified national identity, region has served as, in historian Carl Degler's terms, America's indispensable antithesis, country's other, a cathartic, dialectical counterpoint always shadowing America's self-idealizations; consequently, South has been motive and stage for redemptive collective action in what writer J. Bill Berry cites as the nation's major moral drama. (1) Definitions of a region and its culture as exceptional--that is, as significantly distinct from, seemingly at times even antithetical to, other regions and cultures--inevitably also identify in particular ways its folk. Just as history of South is contradictory and contested, so, too, is identity of southerners. Two very different but interdependent processes are crucial here: one of collective definition of region and other of social psychology of regional identification. On question of collective definition, what it means to be a southerner is a complex and historically shifting consequence of imposition of laws, images, stereotypes, and like by powerful forces in public arena (such as military victors, political majorities, federal government, and media), negotiation of meaning among southerners and between southerners and others, and cultural appropriation, whereby a debased label associated with southernness, such as redneck or hillbilly, is transmuted from a mark of stigma to one of pride by those who are so labeled. On question of social psychology of regionalism, why individuals identify themselves as southerners--whatever collective meaning of identity--on other hand, is a function of choices they make--choices, however, constrained by biography, perception of region and its inhabitants, and social interactions, with some southerners arguably having greater latitude in their self-definitions than others. (2) Many southerners are marked, as are members of racial and ethnic groups, by ascriptive or quasi-ascriptive characteristics--accents in particular--and so may be defined, morally as well as cognitively, by others as southern regardless of their own initial self-definitions. Given imposed meaning of southerner, nonsoutherners are also apt to interact with people they perceive to be southern, due to their accents or where they are from, as if they were southerners--or at least their idea of southern--thus reproducing regional stereotypes and collective definitions. …

Courtroom to Classroom: Justice Harlan's Lectures at George Washington University Law School

John Marshall Harlan had a singularly successful legal career as an Associate Justice of the Supreme Court that spanned thirty-three years, from 1877 to 1911, one of the longest terms in history. For twenty-one of those years on the Court he also distinguished himself as a professor of constitutional law at George Washington University. Along with his colleague on the Bench and on the faculty, Associate Justice David J. Brewer, Harlan carried a full course load, teaching just about every subject: evidence, torts, property law, corporation law, commercial law, international law, and his specialty, constitutional law.

That Eminent Tribunal: Judicial Supremacy and the Constitution

That Eminent Tribunal: Judicial Supremacy and the Constitution. Edited by Christopher Wolfe. Princeton: Princeton University Press, 2004. 256 p. $55.00 cloth, $19.95 paper.“Constitutional law professors have been very upset lately with the U.S. Supreme Court” (p. 181). So begins Keith E. Whittington's contribution to this collection of 11 essays on the subject of, in the words of the subtitle, “judicial supremacy and the Constitution.” Many in the unhappy chorus mentioned by Whittington are mainstream legal academicians who decry the conservative judicial activism sometimes practiced by the Rehnquist Court; they long for a robust activism in defense of liberal political values that characterized Warren and some Burger Era rulings. But the contributors to this book are not members of that chorus. Instead, most question or condemn the liberal activism preferred by the legal mainstream, while a few reject both styles of activism and hanker for a modest judicial role characterized by editor Christopher Wolfe as “traditional judicial review” (p. 202).

Courtroom to Classroom: Justice Harlan’s Lectures at George Washington University Law School

John Marshall Harlan had a singularly successful legal career as an Associate Justice of the Supreme Court that spanned thirty-three years, from 1877 to 1911, one of the longest terms in history. For twenty-one of those years on the Court he also distinguished himself as a professor of constitutional law at George Washington University. Along with his colleague on the Bench and on the faculty, Associate Justice David J. Brewer, Harlan carried a full course load, teaching just about every subject: evidence, torts, property law, corporation law, commercial law, international law, and his specialty, constitutional law.

Constitutionalism and the Abolition of the Office of Lord Chancellor

Journal Article Constitutionalism and the Abolition of the Office of Lord Chancellor Get access Dawn Oliver Dawn Oliver Professor of Constitutional Law, University College London Search for other works by this author on: Oxford Academic Google Scholar Parliamentary Affairs, Volume 57, Issue 4, October 2004, Pages 754–766, https://doi.org/10.1093/pa/gsh059 Published: 01 October 2004

Constitutional Theory in a Nutshell

The purpose and function of this article is to provide the intelligent novice a beginner's guide to the considerable body of scholarly writings about the theory of American constitutional law. This article is all about trying to make some sense of in-class discussion and out-of-class readings in treatises and law reviews of a peculiar dialect of legalese that might be called law prof talk. Constitutional theory helps us to master our subject. helps us to understand Supreme Court decisions and helps us to cope with the elaborate and often conflicting opinions of the Justices. allows us to distinguish between a good argument and a bad argument. Constitutional theory helps us to understand where an argument is coming from and where it might take us. helps us to see the big picture. We better understand how a doctrine came to be and how it might evolve. We see how different doctrines are related and how they fit into the overall organization of constitutional law. Constitutional theory allows us to talk about our subject with each other. is the patois that constitutional law professors write and speak to other professors and to their students. If we manage to gain some perspective from the vantage of constitutional theory, we will better understand constitutional law. At least, that is what a con law prof would tell you while sober. This article provides a nutshell description of the leading theories and identifies some of the leading theorists on the Constitution. The unit of currency here is the academic law review article, not the Supreme Court decision. The citations here provide illustrative examples of the vast body of literature. The discussion provides preliminary sketches of an intellectual landscape that is vast and often foreboding to the beginner. This article is organized around three basic interpretative questions: Who has the authority to interpret the Constitution? What are the legitimate sources of meaning for interpreting the Constitution? How is the Constitution interpreted within different theoretical approaches? The discussion then briefly identifies some of the basic tenets of the prominent contemporary schools of legal philosophy about the Constitution: liberal theory; conservative theory; feminist theory; critical race theory; and postmodern theory. Finally, a somewhat self-consciously introspective conclusion will ask rhetorically: does theory matter? (The answer is a faux-Zen bit of con law prof talk: It depends. . . .)

The 2000 Presidential Election and Its Aftermath

Walk into any gathering of constitutional law professors and it will take no more than 15 minutes before the conversation turns to a discussion of the December 2000 U.S. Supreme Court decision of Bush v. Gore, the ruling that ended the tumultuous 36-day aftermath of the 2000 presidential election. That has been my experience over the last two years—it happens every time, without fail—and it is the starkest way to describe the effect that this decision has had on academics who study the Court. With an event of this magnitude, it should come as no surprise that scholars from a variety of disciplines would ultimately examine the forces and circumstances that contributed to that election's dramatic and unprecedented conclusion, and that such studies would provide us with an abundance of perspectives to consider for years to come. [End Page 741]

The Border Guard Trials and the East German Past-Seven Arguments

Journal Article The Border Guard Trials and the East German Past — Seven Arguments Get access Peter E. Quint Peter E. Quint 1Peter E. Quint is Jacob A. France Professor of Constitutional Law, University of Maryland School of Law. Search for other works by this author on: Oxford Academic Google Scholar The American Journal of Comparative Law, Volume 48, Issue 4, Autumn 2000, Pages 541–572, https://doi.org/10.2307/840907 Published: 01 October 2000

Introduction

Introduction Melvin I. Urofsky Ever since the crack-up of communism in the 1980s, there has been an almost feverish interest in the American Constitution overseas, especially in those countries emerging from under the thumb of the Soviet Union. Within the Constitution no section draws more interest than the Bill of Rights, and there the greatest object of curiosity, veneration and awe is the FirstAmendment with its guarantees offreedom of expression. But the First Amendment Speech Clause, which is the focus of this issue and the subject ofa series oflectures at the Court in 1999 spon­ sored by the Society, also confuses many foreigners. While those for whom free speech has been a dream yearn to be able to say what they want, many also believe that there are limits—even in a free society—to what one may say. In Australia, for example, the rules oflibel still reflect nineteenth-century English custom, and a majority of libel suits in Australian courts are filed by government officials against newspapers who have been critical of their performance in office. When I lectured on American rights in eastern Europe forthe United States InformationAgency, I could always count on a good discussion about the limits of free speech. Much as my audiences envied American freedoms, they had a sense of communal order that supported restrictions on that very speech. In this issue we get both a historical and a contemporary sense of how the jurisprudence offree speech has evolved in this country. Most constitutional law professors startwith the 1919 Holmes opinions in Schenck and Abrams, and then jump to the great exposition by Brandeis in Whitney v. California. Butrecent scholarship argues that we need to go back further in our history if we really want to understand the First Amendment. Murray Dry looks at the infamous Alien and Sedition laws of the late eighteenth century to start our historical journey, and David M. Rabban, whose articles and books have been suggesting earlier antecedents than the World War I cases, looks at what he has called “the forgotten years.” Students offree speech all learn ofthe clear and present danger test and, truth be told, that may be all they learn. It is often unclear if they really understand it. In these pages, Douglas Laycock takes us on an illuminating tour ofone of the most famous constitutional tests ever enunciated. But what of the present? Is clear and present danger still a viable test? Departing from the standard lecture format, the Society invited a panel, moderated by Kenneth Tollett, to discuss that question. The introductory remarks of the panelists, Walter Berns and Philippa Strum, are published here. They serve as a useful preface to Lilian R. BeVier’s survey of free expression during the Warren Court and Burger Court eras. On a personal note, I had ProfessorBeVier as a professor when I attended the University of Virginia Law School, and while she and I frequently disagreed, I always found her views, especially on the First Amendment, challenging. Let me take this space to thank her for helping me focus my own thoughts on the issue. ...

The Law under the Swastika: Studies on Legal History in Nazi Germany

Foreword Sources Historical Introduction General Introduction 1: Biases and Value Judgments in the Study of National Socialist Legal 2: Legal during the Nazi Period: Outlines of a Scholarly Field 3: Was there Progress in Legal History during the Nazi Period? 4: Community and National Community (Volksgemeinschaft): Reflections on Legal Terminology under National Socialism 5: In the Belly of the Beast: Constitutional Legal Theory (Staatsrechtslehre) under National Socialism 6: The Science of Administrative Law under National Socialism 7: The Revival of Administrative Studies (Verwaltungslehre) under National Socialism 8: Administrative Jurisdiction under National Socialism 9: Harsh but Just: Military Justice in the Service of National Socialism 10: The White Rose and Its Judges 11: The Legal System and Judicial Policy in Germany, 1945-1949 12: Theodor Maunz: The Life of a Professor of Constitutional Law Notes Index

The Constitutional Guarantees of Social Welfare in the Process of German Unification

Journal Article The Constitutional Guarantees of Social Welfare in the Process of German Unification Get access Peter E. Quint Peter E. Quint 1Peter E. Quint is Jacob A. France Professor of Constitutional Law, University of Maryland School of Law. Search for other works by this author on: Oxford Academic Google Scholar The American Journal of Comparative Law, Volume 47, Issue 2, Spring 1999, Pages 303–326, https://doi.org/10.2307/841042 Published: 01 April 1999

Beyond the Bottom Line: The Value of Judicial Biography

Beyond the Bottom Line: The Value of Judicial Biography Melvin I. Urofsky (bio) Melvin I. Urofsky Melvin I. Urofsky is professor of constitutional law at Virginia Commonwealth University and chairman of the Society’s Board of Editors. Endnotes 1. Gerald Gunther, Learned Hand: The Man and the Judge (Knopf, 1994); Roger K. Newman, Hugo Black: A Biography (Pantheon, 1994). 2. Tinsley Yarbrough, Judicial Enigma: The First Justice Harlan (Oxford University Press, 1995); Laura Kalman, Abe Fortas: A Biography (Yale University Press, 1990); Mark V Tushnet, Making Constitutional Law: Thurgood Marshall and the Supreme Court, 1961–1991 (Oxford University Press, 1997); and John Jeffries, Jr., Justice Lewis F. Powell, Jr. (Scribner’s, 1994). 3. See, among many others, G. Edward White, Justice Oliver Wendell Holmes: Law and the Inner Self (Oxford University Press, 1993), and Philippa Strum, Brandeis: Beyond Progressivism (University Press of Kansas, 1993). 4. There have already been several books on Justice Brennan, including Kim Isaac Eisler, A Justice for All (Simon & Schuster, 1993) and W. Wat Hopkins, Mr. Justice Brennan and Freedom of Expression (Praeger, 1991). Works on current sitting Justices include Donald E. Boles, Mr. Justice Rehnquist, Judicial Activist (Iowa State University Press, 1987); Sue Davis, Justice Rehnquist and the Constitution (Princeton University Press, 1989); Nancy Maveety, Justice Sandra Day O’Connor: Strategist on the Supreme Court (Rowan & Littlefield, 1996); and Jane Mayer, Strange Justice: The Selling of Clarence Thomas (Houghton Mifflin, 1994). 5. Albert J. Beveridge, The Life of John Marshall (4 vols., 1916–1919). 6. Alpheus T. Mason, Brandeis: A Free Man’s Life (Viking, 1946); William Howard Taft: Chief Justice (Simon & Schuster, 1964); and Harlan Fiske Stone: Pillar of the Law (Viking, 1956). 7. Katharine Graham, Personal History (Knopf, 1997). 8. Stephen J. Field, Personal Reminiscences of Early Days in California, with Other Sketches (1893). 9. David J. Danelski and Joseph S. Tulchin, eds., The Autobiographical Notes of Charles Evans Hughes (Harvard University Press, 1973). 10. The Douglas autobiography consists of three volumes, Of Men and Mountains (Harper & Brothers, 1950); Go East, Young Man: The Early Years (Random House, 1974); and The Court Years, 1939–1975 (Random House, 1980). 11. Mark DeWolfe Howe, Justice Oliver Wendell Holmes: The Shaping Years, 1841–1870 and Justice Oliver Wendell Holmes: The Proving Years, 1870–1882 (Harvard University Press, 1957, 1963). In addition, Howe published several volumes and articles of correspondence between Holmes and men such as Frederick Pollock and Harold Laski. 12. Alexander M. Bickel, Unpublished Opinions of Mr. Justice Brandeis: The Supreme Court at Work (Harvard University Press, 1957). 13. Frankfurter to Brandeis, 20 February 1940; Brandeis to Frankfurter, 21 February 1940, in Melvin I. Urofsky and David W. Levy, eds., “Half Brother, Half Son”: The Letters of Louis D. Brandeis to Felix Frankfurter (University of Oklahoma Press, 1991), 627. My own view is that Frankfurter feared he could not control the independent Mason the way he believed he would be able to influence people he personally chose for the task. 14. J. Woodford Howard, Jr., “Alpheus T. Mason and the Art of Judicial Biography,” 8 Constitutional Commentary 41 (1991). 15. The papers as well as transcripts of the discussions are gathered in “Symposium; National Conference on Judicial Biography,” 70 New York University Law Review 485 (1995). 16. Richard A. Posner, “Judicial Biography,” 70 New York University Law Review 502, 509 (1995). 17. Id. 18. Id. at 503. 19. Id. at 507–08. 20. Richard A. Posner, Cardozo: A Study in Reputation (Chicago: University of Chicago Press, 1990). 21. “Transcript [of Discussion],” 70 New York University Law Review 556, 562, 572 (1995). 22. United States v. Butler, 297 U.S. 1, 62 (1936). 23. See, for example, Daniel M. Berman, A Bill Becomes A Law: Congress Enacts Civil Rights Legislation, 2d ed. (Macmillan, 1966). 24. Robert Litwak, Detente and the Nixon Doctrine: American Foreign Policy and the Pursuit of Stability, 1969–1976 (Cambridge University Press, 1984), and Richard C. Thornton, The Nixon-Kissinger Years: Reshaping America’s Foreign Policy (Paragon House, 1989). 25. Bruce A. Murphy, The Brandeis/Frankfurter Connection (Oxford University Press, 1982). 26. Melvin I. Urofsky, Division and Discord: The Supreme Court under Stone and Vinson, 1941–1953 (University of South Carolina Press, 1997...