Jacob Howard on Due Process and Constitutional Obligation and Interpretation
Chris Green
Just after posting my comments on Jacob Howard yesterday, I happened to run across a very interesting 1862 speech by Howard making due-process objections to an early version of a Civil War confiscation act. While I do not know the due-process literature as well as I know that on the Equal Protection and Privileges or Immunities […]
Constitutional Authors, Howard and the Joint Committee
Chris Green
Mike Ramsey noted yesterday Garrett Epps's generally useful comments on birthright citizenship in the Atlantic, responding to Rand Paul. Epps is right that there was clear evidence that the Fourteenth Amendment's citizenship declaration, which emerged out of the Republicans' meetings between the Senate's initial discussion of the Amendment on May 23, 1866 and its discussion a week […]
Clarity and Reasonable Doubt in Early State-Constitutional Judicial Review
Chris Green
I have posted Clarity and Reasonable Doubt in Early State-Constitutional Judicial Review on SSRN. Here is the abstract: Courts exercising judicial review in every state require the conflict between a statute and the state constitution to be “clear,” rather than simply shown by the preponderance of the evidence. In almost every state, however, courts also […]
Reverse Broken Windows
Chris Green
I have posted my contribution to a Journal of Legal Education symposium on the Ferguson report on SSRN. Here is the abstract: On March 4, 2015, the Department of Justice released two reports related to Michael Brown’s death at the hands of Ferguson, Missouri police officer Darren Wilson on August 9, 2014. Brown’s death produced […]
Root, Lash, Bingham, Criteria, and Context
Chris Green
As Mike Ramsey notes just below, the Root-Lash debate continues. As explained here and here, I am generally in agreement with Root that the Privileges or Immunities Clause extends beyond the rights enumerated in the Constitution. But it is important to note the full complexity of the record and to avoid overreading the evidence. The Civil […]
Obergefell and the Activismometer: a Slightly Different Sort of Level 5
Chris Green
My chief criticism of Obergefell was its failure to substantiate its many claims of knowledge regarding the similarity of same-sex and opposite-sex relationships with respect to the purposes of marriage. The one place in which the Court descended into the particular details–on the immutability issue–it cited evidence which actually contradicted its claim, as well as ignoring […]
A bit more on Obergefell’s immutability claim
Chris Green
I didn't have time on Friday to put links into my SCOTUSblog piece given the "ASAP" deadline, but here is the American Psychological Association's brief on which Kennedy's opinion relies. Surveying the rest of the briefing turns up quite a lot of other material on the immutability issue–see here, here, here, and here for some of the briefs […]
“Oh, well, we know better.”
Chris Green
My contribution to the SCOTUSblog symposium on Obergefell is now posted, with a title from Justice Kennedy's comment at oral argument. Most of the content will probably surprise few readers of this blog, but I do work in references to Toy Story 2 and Apocalypse Now, leaving Pride & Prejudice on the cutting room floor.
Richard Re on the Article VI Oath
Chris Green
Richard M. Re (University of California, Los Angeles (UCLA) – School of Law) has posted Promising the Constitution, 110 Nw. U. L. Rev. __ (2016) on SSRN. The abstract: The Constitution requires that all legislators, judges, and executive officers swear or affirm their fidelity to it. The resulting practice, often called “the oath,” has had a pervasive […]
The Fourteenth Amendment and Federal Abortion Prohibition
Chris Green
I agree with most of what Michael Ramsey says just below about the Commerce Clause and the Pain-Capable Unborn Child Protection Act. I have argued, however (here and here), that the Equal Protection Clause is about literal protection from violence. I argue here at pp. 308-09 that had the Violence Against Women Act been structured to provide […]