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Showing papers in "Chapman Law Review in 2003"


Journal Article
Mark Kende1
TL;DR: The most common assumption about the United States Constitution is that it protects negative rights as mentioned in this paper, whereas the International Covenant on Economic, Social, and Cultural Rights, as well as many foreign constitutions, require governments to affirmatively provide socio-economic necessities.
Abstract: One of the most common assumptions about the United States Constitution is that it protects negative rights.1 Yet the International Covenant on Economic, Social, and Cultural Rights, as well as many foreign constitutions, require governments to affirmatively provide socio-economic necessities.2 The theory is that liberty at least presumes subsistence. International human rights experts actually speak of three \"generations\" of rights. First generation rights are political and civil, and are usually negative rights.4 Second generation rights involve the government's socio-economic obligations, and are frequently positive rights.5 Finally, third generation rights are exemplified by the right to a clean and healthy environment, and are commonly called \"green\" rights.

27 citations



Journal Article
Abstract: The constitution contains many disparate structural provisions and guarantees of individual rights: federalism questions under the commerce clause start in very different places from the protection of speech, religion or property. Yet the differences are often misleading. In each case the structure of the argument is identical: what is the basic interest that is protected, what justifications can be posed for its limitation, with or without compensation. Where an intermediate or strict standard of review is proposed, the nature of these inquiries all collapse to the single question of whether government intervention overcomes some market imperfection relating to negative externalities (force and fraud) or monopoly and coordination problems. Where the standard of review is reduced to rational basis, then the structure of basic rights and the justifications for their restriction becomes ill-formed and ad hoc. The conceptual defense of the Lochner era is much stronger on structural grounds than its manifold critics commonly suppose.

3 citations


Journal Article
TL;DR: In fact, property owners' expectations associated with long-standing property rights continue to be a significant consideration in takings jurisprudence in the United States as mentioned in this paper, and the protection of individuals' "settled, justified expectations" in their property rights is integral to this concept.
Abstract: Property rights are a fundamental aspect of liberty in the United States.2 The protection of individuals' "settled, justified expectations" in their property rights is integral to this concept. In fact, property owners' expectations associated with long-standing property rights continue to be a significant consideration in takings jurisprudence.4 The Takings Clause of the Fifth Amendment provides, in part, "nor shall private property be taken for public use, without just compensation."5 This clause is implicated

3 citations


Journal Article
TL;DR: This article argued that the Supreme Court has gotten it right since 1937 when it comes to economic rights and the Court has been clear that claims of economic rights should receive only rational basis review.
Abstract: When I was invited to participate in this symposium, I immediately accepted without giving any thought to what I would write on the topic of economic liberties. As the date for the symposium approached, I became increasingly worried about what I would say on the topic. I strongly believe that the Supreme Court has gotten it right since 1937 when it comes to economic rights. The Court has been clear that claims of economic rights should receive only rational basis review.' Freedom of contract is not regarded as a fundamental right.2 Government regulations are upheld so long as there is some conceivable permissible purpose and so long as the means are reasonably related to achieving the goal. The Court has greatly deferred to government economic regulations; \"the Court has not invalidated an economic regulation on substantive due process grounds since 1937.\"3

2 citations


Journal Article
TL;DR: The Magna Cartas were the original source of protection from governmental intrusion upon economic liberties as mentioned in this paper, and their interpretation in English common law has been studied extensively in American jurisprudence.
Abstract: This Article details the evolution of the treatment of economic liberties, beginning with the Magna Cartas of 1215 and 1225. The Magna Cartas were the original source of protection from governmental intrusion upon economic liberties. The Article considers Sir Edward Coke and William Blackstone's interpretations of the Magna Carta both in their writings and in common law cases. Next, the Article traces the influence of Coke and Blackstone's writings, and of the English common law on American jurisprudence, including a discussion of how these influences affected the United States Constitution. The Article subsequently examines numerous United States Supreme Court cases, mapping the major shifts in the Supreme Court's protections-or lack thereof-of economic liberties. In conclusion, the Article considers the impact of the judicial termination for protections of economic rights.

1 citations


Journal Article
TL;DR: In the case of Saenz v. Roe, the Supreme Court re-invigorated a long-dead clause of the Constitution, the Privileges or Immunities Clause of the 14th Amendment as mentioned in this paper.
Abstract: In its 1999 case, Saenz v. Roe, the Supreme Court re-invigorated a long-dead clause of the Constitution, the Privileges or Immunities Clause of the 14th Amendment. Oddly, though, the opinion was written by Justice Stevens, one of the staunchest devotees of a living Constitution rather than originalism. As odd: Justice Thomas, the most consistent originalist on the Court, was in dissent. In his view, any reinvigoration of the Privileges or Immunities Clause should displace, rather than augment, the untethered jurisprudence that expansively interpreted other clauses of the 14th Amendment to cover the neutered Privileges or Immunities Clause, and it should be revived as originally contemplated. This article begins to take up the invitation made by Justice Thomas to explore the original meaning of the Privileges or Immunities Clause, contending that it (and its sister clause in Article IV of the original Constitution) was one of the clauses actually designed to codify the basic natural rights principles of the Declaration of Independence.

1 citations


Journal Article
Earl M. Maltz1
TL;DR: The evolution of the constitutional doctrine of commercial speech' is unique among economic rights as mentioned in this paper, and conservative justices on the Supreme Court have been the guardians of expansive reading of the Takings Clause,2 the Contracts Clause,3 and economic substantive due process generally.
Abstract: The evolution of the constitutional doctrine of commercial speech' is unique among economic rights. Throughout our constitutional history, conservative justices on the Supreme Court have been the guardians of expansive reading of the Takings Clause,2 the Contracts Clause,3 and economic substantive due process generally.4 When judicial restraint has been the hallmark of conservative jurisprudence, the scope of these rights has been greatly diminished.

1 citations


Journal Article
TL;DR: Interest group politics is a problem that has plagued American government since the nation was founded as discussed by the authors, and it is one of the intractable problems that interest group politics, or the problem of "faction" as James Madison described it, posed for the states under the Articles of Confederation.
Abstract: Interest group politics is a problem that has plagued American government since the nation was founded. The Constitution itself was drafted and adopted in large part because of the intractable problems that interest group politics, or the problem of “faction” as James Madison described it, posed for the states under the Articles of Confederation. “Complaints are everywhere heard,” Madison stated in The Federalist Papers No. 10, “that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority.” Madison’s comment could just as easily be applied to the state of our politics today. Washington, D.C. and the state capitols are filled with lawyers and lobbyists, who work tirelessly to ensure that the special interests they represent will benefit from the myriad new laws and regulations that are passed each year. In short, modern government has a lot to offer, and its constituents are increasingly all too eager to pursue it. As a result, as journalist

1 citations