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Patrick J. Charles

Bio: Patrick J. Charles is an academic researcher from Government of the United States of America. The author has contributed to research in topics: Supreme court & Originalism. The author has an hindex of 4, co-authored 21 publications receiving 58 citations. Previous affiliations of Patrick J. Charles include St. John's University & Brigham Young University.

Papers
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Posted Content
TL;DR: This article explored the impact of the District of Columbia v. Heller decision on the public discourse and found that it is a discourse that will be broken down into two categories: (1) the right's impact on politics and lawmaking or what may otherwise be described as the political discourse, and (2) the opinions of society at large.
Abstract: This article explores the impact District of Columbia v. Heller has had on the public discourse. It is a discourse that will be broken down into two categories: (1) the right’s impact on politics and lawmaking or what may otherwise be described as the political discourse, and (2) the right’s impact on the opinions of society at large or what may otherwise be described as the public discourse. In many respects the two categories are intertwined. For instance, political rhetoric and debate often influence society’s view of what is and is not lawful. At the same time, whatever the judiciary identifies as constitutionally protected impacts society’s perception of historic custom and tradition, regardless of whether it is built on historical fact or historical myth. Still, despite the substantial overlap between Supreme Court opinions and the political and public discourse, it worth exploring the two categories separately. It is only then one can truly assess the impact Heller has had on American society as a whole.

17 citations

Posted Content
TL;DR: However, as insightful as Hancock's instructions are, it does not end the historical inquiry as to the constitutional importance of the Declaration as discussed by the authors, leaving many questions unanswered, such as did the founding generation agree with Hancock's assessment? Did the newly independent State governments have to embody the principles in the Declaration or was this merely an exercise in political rhetoric? What effect if any did the subsequent Articles of Confederation and superseding Constitution have on the guarantees and grievances within the Declaration?
Abstract: On July 6, 1776, John Hancock sent letters to each of the colonial assemblies announcing the adoption of the Declaration of Independence. In doing so, Hancock stated that the Declaration had two significant legal effects. The first was that “all connection between Great Britain and the American Colonies” had been dissolved as to “declare them free and independent States” by which each colony should proclaim this “in the way [it] shall think most proper.” The second effect was a structural alteration to the colonial governments, for each colony’s charter was expressly tied to England’s system of government. Therefore, Hancock requested that “the people may be universally informed” of this change, and that the Declaration be “considered as the ground and foundation of a future Government,” both at the State and national level. Hancock’s instructions are significant because they portray that the very essence of American government was the guarantees embodied in the Declaration of Independence. However, as insightful as Hancock’s instructions are, it does not end the historical inquiry as to the constitutional importance of the Declaration. It leaves many questions unanswered, such as did the founding generation agree with Hancock’s assessment? Did the newly independent State governments have to embody the principles in the Declaration or was this merely an exercise in political rhetoric? What effect if any did the subsequent Articles of Confederation and superseding Constitution have on the guarantees and grievances within the Declaration?As a matter of originalism, answering these questions has proven difficult with the Declaration gaining acceptance as part of our social and international identity. Nevertheless, working through these questions is essential if the United States Supreme Court is ever to truly acknowledge the Declaration’s preservation of “life, liberty, and the pursuit of happiness” in the pantheons of our constitutional jurisprudence. Perhaps providing the answer to these questions is difficult because the Declaration is mistaken as embodying actionable natural rights or some form of judicial presumption of liberty. For instance, many associate the Declaration’s reference to the “life, liberty, and the pursuit of happiness” as the embodiment of a libertarian ideal. They view the phrase as embodying protections for economic liberties and supporting the political belief of limited governmental intrusion. At the same time, many people view “life, liberty, and the pursuit of happiness” as protecting broad natural rights in addition to the enumerated rights guaranteed by the Bill of Rights, and the respective State constitutions. Take for example an interview that I took part in predicting the outcome of the landmark Second Amendment case McDonald v. City of Chicago. In response to my answers, it was asserted that I was wrong because I did not understand the Declaration’s guarantee of natural rights; an ideal, no doubt, many Americans identify with the sacred text. It should not be surprising that the use of the Declaration as a vehicle to assert natural or individual rights is not a modern invention. During the ratification of the Constitution, the Declaration’s grievance “depriving…the benefit of Trial by Jury” was used by at least one anonymous editorial to assert the need for a similar protection in a Bill or Rights. Perhaps the greatest advancement of the Declaration as a constitutional vehicle to assert rights was through the events of the Civil War. From the outset of South Carolina’s succession, the Declaration was used as constitutional support for the South’s separation from the Union. This view of the Declaration as embodying constitutional guarantees would continue through the ratification of the Thirteenth, Fourteenth, and Fifteenth Amendments. In fact, it is well documented that members of the Reconstruction Congress used the Declaration’s language as the embodiment of the Founders’ Constitution. Partially motivated by the Supreme Court’s decision in Dred Scott v. Sanford, members of the Reconstruction Congress sought to ensure, once and for all, that “all men are created equal” as a matter of law by removing the color barriers placed in the federalist system.However, before one can ever reconcile what the preservation of “life, liberty, and the pursuit of happiness” provides us as a working constitutional doctrine, the Declaration’s contents and purpose must be reconciled within the constraints of historical context. Thus, Part I of this article sets forth to examine the different views of the Declaration as a legal document from its adoption through the Early Republic. It is from this talking point that Part II will address the historiography of interpreting “life, liberty, and the pursuit of happiness” from the turn of the twentieth-century to modern day. Part III then addresses the problems of the modern legal interpretation as a matter of historical context, and provides an originalist understanding of preserving “life, liberty, and the pursuit of happiness” in the constraints of eighteenth century constitutionalism. Lastly, Part IV briefly discusses the true legal purpose of preserving “life, liberty, and the pursuit of happiness,” and whether it is consistent with our modern constitutional jurisprudence.

6 citations

Posted Content
TL;DR: In 2010, the United States Supreme Court will hear oral arguments for McDonald v. City of Chicago to determine whether the Second Amendment is incorporated through the Fourteenth Amendment and applies directly to the states as discussed by the authors.
Abstract: In early 2010, the United States Supreme Court will hear oral arguments for McDonald v. City of Chicago to determine whether the Second Amendment is incorporated through the Fourteenth Amendment and applies directly to the states. Coming less than two years after the Court’s landmark decision in District of Columbia v. Heller, the issues affecting the Fourteenth Amendment are two-fold. First, the Court will determine whether the Second Amendment is incorporated through the Fourteenth Amendment’s Due Process Clause. Second, the Court will determine if the Second Amendment applies to the states through the Fourteenth Amendment’s Privileges and Immunities Clause. While the “privileges and immunities” issue will receive the overwhelming attention of the legal community, what will seemingly be ignored is the history of the Anglo-American tradition of “having arms,” for its history may prove crucial as to whether the Second Amendment is incorporated through either the Fourteenth Amendment’s Due Process or Privileges and Immunities Clauses.

4 citations

Book
28 Jan 2009
TL;DR: The Second Amendment to the United States Constitution is meant to protect the right of an individual to keep and bear arms for the purpose of defending the country in a militia force against standing foreign or domestic armies.
Abstract: 'A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed'. For the past half century, legal historians, analysts, judges and commentators have disagreed as to the original scope and intent of these words, making up the Second Amendment to the United States Constitution. Individual right theorists interpret it as protecting the personal privilege to own and carry firearms, while collective right theorists interpret it as only protecting the privilege of a collective society to bear arms in relation to militia service. This book examines the contentions of both groups and concludes that the amendment is meant only to protect the right of an individual to 'keep and bear arms' for the purpose of defending the country in a militia force against standing foreign or domestic armies. To interpret the amendment in any other way, the author argues, is to take its wording out of context and overextend a limited right that predated the Constitution and was essential to the founding of the nation. In crafting his argument, the author examines the Second Amendment in exacting detail, looking at its earliest drafts and its placement within the Bill of Rights, the state constitutional ratifying conventions, and judicial interpretations of the amendment through the landmark decision in 2008's District of Columbia v. Heller. The two final chapters examine the relationship between the Second Amendment and individual states, focusing specifically on the state of Ohio's 'right to bear arms' provisions provided in its 1802 constitution.

4 citations

Posted Content
TL;DR: In this article, historical evidence reveals a disparity between the Anglo-American origins of armed carriage laws and present-day interpretations of the Second Amendment and the historical backdrop also reveals the impact pro-gun organizations have had on the expansion of armed carriages.
Abstract: Since the late twentieth century, the Second Amendment has been increasingly promoted as the unfettered right to carry firearms in the public concourse. This expansive meaning, however, lacks historical support. Historical evidence reveals a disparity between the Anglo-American origins of armed carriage laws and present-day interpretations of the Second Amendment. The historical backdrop also reveals the impact pro-gun organizations have had on the expansion of armed carriage. Differences in state armed carriage laws, analyzed from both historical and regional perspectives, will one day require the Supreme Court to determine which version of history should dictate the meaning of the Second Amendment.

4 citations


Cited by
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01 Jan 2014
TL;DR: In this paper, Cardozo et al. proposed a model for conflict resolution in the context of bankruptcy resolution, which is based on the work of the Cardozo Institute of Conflict Resolution.
Abstract: American Bankruptcy Institute Law Review 17 Am. Bankr. Inst. L. Rev., No. 1, Spring, 2009. Boston College Law Review 50 B.C. L. Rev., No. 3, May, 2009. Boston University Public Interest Law Journal 18 B.U. Pub. Int. L.J., No. 2, Spring, 2009. Cardozo Journal of Conflict Resolution 10 Cardozo J. Conflict Resol., No. 2, Spring, 2009. Cardozo Public Law, Policy, & Ethics Journal 7 Cardozo Pub. L. Pol’y & Ethics J., No. 3, Summer, 2009. Chicago Journal of International Law 10 Chi. J. Int’l L., No. 1, Summer, 2009. Colorado Journal of International Environmental Law and Policy 20 Colo. J. Int’l Envtl. L. & Pol’y, No. 2, Winter, 2009. Columbia Journal of Law & the Arts 32 Colum. J.L. & Arts, No. 3, Spring, 2009. Connecticut Public Interest Law Journal 8 Conn. Pub. Int. L.J., No. 2, Spring-Summer, 2009. Cornell Journal of Law and Public Policy 18 Cornell J.L. & Pub. Pol’y, No. 1, Fall, 2008. Cornell Law Review 94 Cornell L. Rev., No. 5, July, 2009. Creighton Law Review 42 Creighton L. Rev., No. 3, April, 2009. Criminal Law Forum 20 Crim. L. Forum, Nos. 2-3, Pp. 173-394, 2009. Delaware Journal of Corporate Law 34 Del. J. Corp. L., No. 2, Pp. 433-754, 2009. Environmental Law Reporter News & Analysis 39 Envtl. L. Rep. News & Analysis, No. 7, July, 2009. European Journal of International Law 20 Eur. J. Int’l L., No. 2, April, 2009. Family Law Quarterly 43 Fam. L.Q., No. 1, Spring, 2009. Georgetown Journal of International Law 40 Geo. J. Int’l L., No. 3, Spring, 2009. Georgetown Journal of Legal Ethics 22 Geo. J. Legal Ethics, No. 2, Spring, 2009. Golden Gate University Law Review 39 Golden Gate U. L. Rev., No. 2, Winter, 2009. Harvard Environmental Law Review 33 Harv. Envtl. L. Rev., No. 2, Pp. 297-608, 2009. International Review of Law and Economics 29 Int’l Rev. L. & Econ., No. 1, March, 2009. Journal of Environmental Law and Litigation 24 J. Envtl. L. & Litig., No. 1, Pp. 1-201, 2009. Journal of Legislation 34 J. Legis., No. 1, Pp. 1-98, 2008. Journal of Technology Law & Policy 14 J. Tech. L. & Pol’y, No. 1, June, 2009. Labor Lawyer 24 Lab. Law., No. 3, Winter/Spring, 2009. Michigan Journal of International Law 30 Mich. J. Int’l L., No. 3, Spring, 2009. New Criminal Law Review 12 New Crim. L. Rev., No. 2, Spring, 2009. Northern Kentucky Law Review 36 N. Ky. L. Rev., No. 4, Pp. 445-654, 2009. Ohio Northern University Law Review 35 Ohio N.U. L. Rev., No. 2, Pp. 445-886, 2009. Pace Law Review 29 Pace L. Rev., No. 3, Spring, 2009. Quinnipiac Health Law Journal 12 Quinnipiac Health L.J., No. 2, Pp. 209-332, 2008-2009. Real Property, Trust and Estate Law Journal 44 Real Prop. Tr. & Est. L.J., No. 1, Spring, 2009. Rutgers Race and the Law Review 10 Rutgers Race & L. Rev., No. 2, Pp. 441-629, 2009. San Diego Law Review 46 San Diego L. Rev., No. 2, Spring, 2009. Seton Hall Law Review 39 Seton Hall L. Rev., No. 3, Pp. 725-1102, 2009. Southern California Interdisciplinary Law Journal 18 S. Cal. Interdisc. L.J., No. 3, Spring, 2009. Stanford Environmental Law Journal 28 Stan. Envtl. L.J., No. 3, July, 2009. Tulsa Law Review 44 Tulsa L. Rev., No. 2, Winter, 2008. UMKC Law Review 77 UMKC L. Rev., No. 4, Summer, 2009. Washburn Law Journal 48 Washburn L.J., No. 3, Spring, 2009. Washington University Global Studies Law Review 8 Wash. U. Global Stud. L. Rev., No. 3, Pp.451-617, 2009. Washington University Journal of Law & Policy 29 Wash. U. J.L. & Pol’y, Pp. 1-401, 2009. Washington University Law Review 86 Wash. U. L. Rev., No. 6, Pp. 1273-1521, 2009. William Mitchell Law Review 35 Wm. Mitchell L. Rev., No. 4, Pp. 1235-1609, 2009. Yale Journal of International Law 34 Yale J. Int’l L., No. 2, Summer, 2009. Yale Journal on Regulation 26 Yale J. on Reg., No. 2, Summer, 2009.

1,336 citations

DissertationDOI
01 Jan 2015
TL;DR: Spivey as discussed by the authors analyzes the nature and scope of battles over culture war issues in the United Supreme Court and concludes that there is not one culture war but rather an interrelated set of cultural battles.
Abstract: Title of Dissertation: CULTURE WARRIORS GO TO COURT: THE SUPREME COURT AND THE BATTLE FOR THE “SOUL” OF AMERICA Michael Odell Spivey, Doctor of Philosophy, 2015 Dissertation Directed by: Professor Wayne McIntosh Department of Government and Politics The notion of a “culture war” has become a fixture in the academic writing about current American politics, in the popular press and in the cultural zeitgeist. Theorists have suggested that there is a cultural fault line dividing cultural progressives and religious traditionalists. This fault line, it is argued, stems from a basic epistemological disagreement as to whether there is transcendent “truth.” According to James Davidson Hunter, these different worldviews lead to policy polarization and cultural warfare. Hunter goes on to suggest that courts (and especially the Supreme Court) are focal points for this conflict. This work analyzes the nature and scope of battles over culture war issues in the United Supreme Court. It relies on a popular description of key culture war issues: God, guns and gays. The Supreme Court’s treatment of each of these issues is analyzed in turn. In addition, the Supreme Court’s abortion jurisprudence is also examined. With respect to each issue, key Supreme Court cases are identified. The briefs filed by the parties are then summarized and coded, identifying key “modalities” of arguments and specific arguments themselves. All amicus briefs are similarly analyzed and coded. The key Supreme Court decisions are then analyzed in light of arguments raised by parties and amici. Based upon this analysis, it appears that there is not one culture war but rather an interrelated set of cultural battles. Relatedly, there has been an evolution of cultural warfare over time. Some issues have become largely settled (at least within the Court’s jurisprudence); others are on their way to being settled and still others present continuing opportunities for cultural clashes. The work concludes by suggesting that the sexual revolution lies at the heart of cultural warfare. Moreover, cultural battles are over the “meaning” of America, that is, what social values will be protected under law. CULTURE WARRIORS GO TO COURT: THE SUPREME COURT AND THE BATTLE FOR THE “SOUL” OF AMERICA by Michael Odell Spivey Dissertation submitted to the Faculty of the Graduate School of the University of Maryland, College Park in partial fulfillment of the requirements for the degree of Doctor of Philosophy 2015 Advisory Committee: Professor Wayne McIntosh, Chair Professor Karen Kaufmann Professor Frances Lee Professor Irwin Morris Professor Susan Dwyer ©Copyright by Michael Odell Spivey 2015

60 citations

Journal ArticleDOI
TL;DR: The authors argue that the National Rifle Association (NRA) has capitalized on the religious nationalism that arose in the late 1970s alongside the Moral Majority and increasingly used religious language to shape the discourse surrounding the Second Amendment.
Abstract: Understanding the deep meaning of the Second Amendment is critical to understanding American gun culture. The centrality of the Second Amendment in American culture can be better understood through the intersection of American nationalism with Protestant Christianity. This paper argues that the National Rifle Association (NRA) has capitalized on the religious nationalism that arose in the late 1970s alongside the Moral Majority and has increasingly used religious language to shape the discourse surrounding the Second Amendment. Understanding the transformation of the Second Amendment from an important Constitutional amendment to an article of faith in religious nationalism provides new insight about the meaning of guns for American identity. The use of religious rhetoric, such as references to evil combined with references to civic obligation, illustrates the merging of American civic religion with the New Christian Right’s rhetoric. Using issues of the American Rifleman to investigate the changing discourse since the mid-1970s, this paper demonstrates how the NRA increased its use of religious language to frame the political debate about gun rights through a religious nationalist lens.

18 citations

Posted Content
TL;DR: This article explored the impact of the District of Columbia v. Heller decision on the public discourse and found that it is a discourse that will be broken down into two categories: (1) the right's impact on politics and lawmaking or what may otherwise be described as the political discourse, and (2) the opinions of society at large.
Abstract: This article explores the impact District of Columbia v. Heller has had on the public discourse. It is a discourse that will be broken down into two categories: (1) the right’s impact on politics and lawmaking or what may otherwise be described as the political discourse, and (2) the right’s impact on the opinions of society at large or what may otherwise be described as the public discourse. In many respects the two categories are intertwined. For instance, political rhetoric and debate often influence society’s view of what is and is not lawful. At the same time, whatever the judiciary identifies as constitutionally protected impacts society’s perception of historic custom and tradition, regardless of whether it is built on historical fact or historical myth. Still, despite the substantial overlap between Supreme Court opinions and the political and public discourse, it worth exploring the two categories separately. It is only then one can truly assess the impact Heller has had on American society as a whole.

17 citations

Book
25 Jul 2016
TL;DR: The authors explores the diverse range of linguistic inequalities, covering voting, criminal and civil justice, education, government and public services, and the workplace, and considers how linguistic differences challenge our fundamental ideals of democracy, justice and fairness.
Abstract: Language policy is a topic of growing importance around the world, as issues such as the recognition of linguistic diversity, the establishment of official languages, the status of languages in educational systems, the status of heritage and minority languages, and speakers' legal rights have come increasingly to the forefront. One fifth of the American population do not speak English as their first language. While race, gender and religious discrimination are recognized as illegal, the US does not currently accord the same protections regarding language; discrimination on the basis of language is accepted, and even promoted, in the name of unity and efficiency. Setting language within the context of America's history, this book explores the diverse range of linguistic inequalities, covering voting, criminal and civil justice, education, government and public services, and the workplace, and considers how linguistic differences challenge our fundamental ideals of democracy, justice and fairness.

17 citations