Journal Article•
Categoricalism and Balancing in First and Second Amendment Analysis
TL;DR: The least discussed element of District of Columbia v. Heller might ultimately be the most important: the battle between the majority and dissent over the use of categoricalism and balancing in the construction of constitutional doctrine as discussed by the authors.
Abstract: The least discussed element of District of Columbia v. Heller might ultimately be the most important: the battle between the majority and dissent over the use of categoricalism and balancing in the construction of constitutional doctrine. In Heller, Justice Scalia’s categoricalism essentially prevailed over Justice Breyer’s balancing approach. But as the opinion itself demonstrates, Second Amendment categoricalism raises extremely difficult and still-unanswered questions about how to draw and justify the lines between protected and unprotected “Arms,” people, and arms-bearing purposes. At least until balancing tests appear in Second Amendment doctrine—as they almost inevitably will—the future of the Amendment will depend almost entirely on the placement and clarity of these categories. And unless the Court better identifies the core values of the Second Amendment, it will be difficult to give the categories any principled justification.
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TL;DR: The authors argue that political cultural variables, legal texts and differences in jurisprudential norms strongly influence the overarching patterns of outcomes across jurisdictions, and draw on scholarship about comparative law and freedom of expression to develop and test hypotheses about judicial regulation of racist speech in the USA and Europe.
Abstract: The USA and European countries have developed radically different approaches to regulating racist hate speech over the past 50 years. This divergence is largely a function of rulings by the US Supreme Court and the European Court of Human Rights. While the Supreme Court has elected to uphold the freedom to express inflammatory racism in public, the European Court has almost always sided with its 47 member states when they have enforced laws curbing racist hate speech. Although a number of scholars have described the differences between the USA and Europe, there is currently no theoretically informed explanation of this important divergence. In this article, I draw on scholarship about comparative law and freedom of expression to develop and test hypotheses about judicial regulation of racist speech in the USA and Europe. I argue that political cultural variables, legal texts and differences in jurisprudential norms strongly influence the overarching patterns of outcomes we see across jurisdictions. Yet, p...
30 citations
Cites background from "Categoricalism and Balancing in Fir..."
...[6] Other examples include the relative weight placed on categorical versus balancing analysis (Blocher 2009; Farber 2009), viewpoint neutrality (Sadurski 1997), and jurisprudence constante (Fon and Parisi 2006)....
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TL;DR: In this paper, the authors proposed to shift the conversation from ex-offenders' usefulness to the Armed Forces to the reciprocal responsibilities and benefits involved for these potential recruits, the military, and society at large, and concluded that a recruitment strategy currently pursued though winks and nods should be approached more forthrightly and perhaps more vigorously for the good of both civil society and the Armed forces.
Abstract: Existing work on ex-offenders’ access to military employment too narrowly represents both the Armed Forces’ and the public’s interests in the issue. This Article proposes to shift the conversation from ex-offenders’ usefulness to the Armed Forces to the reciprocal responsibilities and benefits involved for these potential recruits, the military, and society at large. Part One reviews the rules, policies, and procedures governing the “moral waivers” that allow thousands of individuals with criminal histories to enlist each year, and it shows that that the waiver system nonetheless often fails to detect the criminal backgrounds of many recruits. Part Two reviews some of the practical, social, and political considerations that do and should inform the design and implementation of waiver policy: characteristics of the recruit pool; ex-offenders’ job performance, retention rates, and attrition levels; their difficulties finding employment; unemployment’s predictable effect on recidivism; and the social advantages of military service in this population. The Article concludes that a recruitment strategy currently pursued though winks and nods should be approached more forthrightly, and perhaps more vigorously, for the good of both civil society and the Armed Forces.
18 citations
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TL;DR: In this article, a survey of recent, ostensibly originalist decisions of the United States Supreme Court confirming that in reality, these decisions consistently turn on non-originalist considerations, and they rarely prove able to provide an approach to constitutional adjudication meaningfully different from nonoriginalism.
Abstract: Originalism is in ascendance. Both in judicial opinions and in the legal academy, arguments for the interpretation of the Constitution based on its original meaning are increasingly prominent. The scholarly literature to date, however, has focused on theory. Supporters and opponents debate the theoretical merits of originalism, but rarely test their views on the merits of originalism by reference to the realities of constitutional adjudication. In science, a theory gains acceptance if it makes testable predictions that are later borne out. Whatever its theoretical merit, originalism deserves recognition as genuinely distinctive and useful approach to constitutional adjudication only if, in practice, it provides a genuinely originalist vehicle for deciding real cases – that is, deciding cases by reference to the meaning of constitutional text as historically fixed at the time of framing and ratification when nonoriginalists would decide them otherwise. Yet, the scholarly literature to date makes no effort to address that question. This article aims to fill this gap by assessing how originalist interpretations of the Constitution fare in practice. In light of the ascendency of originalism, this article offers what may seem a surprising claim – when originalist arguments are actually deployed in real-world litigation, they rarely prove able to provide an approach to constitutional adjudication meaningfully different from nonoriginalism.Nonoriginalists, no less than originalists, regard constitutional text as binding. The nonoriginalist claim is that the broad, open-ended provisions of the Constitution are properly construed to have evolving content. Originalists, for their part, grant that the Constitution contains much vague or ambiguous text, even when assessed in light of its original semantic meaning. Some originalists rely on framing-era practice or understandings to reduce the scope of textual vagueness or ambiguity subject to nonoriginalist construction, but in practice, this approach is deeply problematic. There is no authentically originalist methodology for evaluating claims that changed circumstances render reliance on framing-era practice or understandings – that is, the original expected applications of constitutional text – obsolete or irrelevant. Other originalists embrace a semantic form of originalism that treats the original meaning of text as binding only at the level of generality found in the text itself. In practice, however, this approach is indistinguishable from nonoriginalism.The paper concludes with a survey of recent, ostensibly originalist decisions of the United States Supreme Court confirming that in reality, these decisions consistently turn on nonoriginalist considerations. Originalist adjudication is rather like the Loch Ness Monster – much discussed, but rarely encountered.
6 citations
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TL;DR: In this article, the authors described freedom of expression as a necessary precondition for democracy and for the implementation of an effective system of human rights, and argued that a deliberative democracy cannot function if citizens are not granted the fundamental right to express their views and to criticize the government without being censored.
Abstract: Freedom of expression has been often described as a necessary precondition for democracy and for the implementation of an effective system of human rights A deliberative democracy cannot function if citizens are not granted the fundamental right to express their views and to criticize the government without being censored1 The rule of law becomes an empty notion if legal orders do not protect the impartial, autonomous judgments of the judiciary2
4 citations
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TL;DR: In this paper, the authors proposed to shift the conversation from ex-offenders' usefulness to the Armed Forces to the reciprocal responsibilities and benefits involved for these potential recruits, the military, and society at large, and concluded that a recruitment strategy currently pursued though winks and nods should be approached more forthrightly and perhaps more vigorously for the good of both civil society and the Armed forces.
Abstract: Existing work on ex-offenders’ access to military employment too narrowly represents both the Armed Forces’ and the public’s interests in the issue. This Article proposes to shift the conversation from ex-offenders’ usefulness to the Armed Forces to the reciprocal responsibilities and benefits involved for these potential recruits, the military, and society at large. Part One reviews the rules, policies, and procedures governing the “moral waivers” that allow thousands of individuals with criminal histories to enlist each year, and it shows that that the waiver system nonetheless often fails to detect the criminal backgrounds of many recruits. Part Two reviews some of the practical, social, and political considerations that do and should inform the design and implementation of waiver policy: characteristics of the recruit pool; ex-offenders’ job performance, retention rates, and attrition levels; their difficulties finding employment; unemployment’s predictable effect on recidivism; and the social advantages of military service in this population. The Article concludes that a recruitment strategy currently pursued though winks and nods should be approached more forthrightly, and perhaps more vigorously, for the good of both civil society and the Armed Forces.
18 citations
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TL;DR: The U.S. Supreme Court's decision in District of Columbia v. Heller constitutionalized the right of self-defense, and described selfdefense as a natural, inherent right.
Abstract: The U.S. Supreme Court's decision in District of Columbia v. Heller constitutionalized the right of self-defense, and described self-defense as a natural, inherent right. Analysis of natural law in Heller shows why Justice Stevens' dissent is clearly incorrect, and illuminates a crucial weakness in Justice Breyer's dissent. The constitutional recognition of the natural law right of self-defense has important implications for American law, and for foreign and international law.
8 citations