Open AccessJournal Article
Doctrinal Dynamism, Borrowing, and the Relationship Between Rules and Rights
Joseph Blocher,Luke Morgan +1 more
TLDR
The study of rights dynamism, exemplified in Timothy Zick's new book on the First Amendment's relationship with the rest of the Bill of Rights, can help deepen understandings of the nature of constitutional rights as discussed by the authors.Abstract:
The study of “rights dynamism,” exemplified in Timothy Zick’s new book on the First Amendment’s relationship with the rest of the Bill of Rights, can help deepen understandings of the nature of constitutional rights. It also opens a door to another potentially fruitful arena: what we call “doctrinal dynamism.” Constitutional rights often interact and generate new meanings and applications by way of importing and exporting one another’s doctrinal rules, even when the rights themselves do not intersect directly, for example in the context of a single case. Focusing on these doctrinal exchanges can illuminate the strengths and weaknesses of various rules, the specific interests underlying different constitutional guarantees, and the sometimes inextricable relationship between particular rights and their constitutive doctrines. In this Essay, we explore the definitional challenge—what is doctrine?—before identifying some lessons learned when doctrine migrates between rights, and when it stays home.read more
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Popular Constitutionalism and the Underenforcement Problem: The Case of the National Healthcare Law
TL;DR: In this article, the authors look at the constitutionality of the Affordable Care Act (ACA) through the lens of underenforcement and argue that popular constitutionalism influences which norms are underenforced at any given time.
[86WashLRev0217] Reasoning About the Irrational: The Roberts Court and the Future of Constitutional Law
Abstract: Abstract: Commentary on the future direction of the Roberts Court generally falls along lines that correlate with the commentators' political views on the desirability of the Court's recent decisions. A more informative approach is to look for opinions suggesting changes in the presuppositions with which the Justices approach constitutional decision making. In footnote 27 in his opinion for the Court in the District of Columbia v. Heller Second Amendment decision, Justice Scalia suggested a fundamental revision of the Court's assumptions about the role of judicial doctrine, and the concept of rationality, in constitutional law. Justice Scalia would eliminate the normative aspects of the Court's inquiry into rationality, and reject altogether the generally accepted view that rationality review is a deliberate underenforcement of a constitutional norm of substantive reasonability, primarily implemented by the legislature. Footnote 27 cites Chief Justice Roberts's opinion in Engquist v. Oregon Department of Agriculture, which adopts a similar view of rationality as free of normative content. The common threads linking footnote 27, the Engquist opinion, and a debate between Justices Alito and Breyer in McDonald v. City of Chicago this past June, suggest that footnote 27 is a significant clue to the fundamental understanding of constitutional law that commands at least a plurality on the current Court. If this understanding becomes dominant, it will profoundly change the Court's treatment of precedent, rational-basis scrutiny, and the role of the political branches in constitutional law. INTRODUCTION Disagreement over the proper direction of constitutional law is as old as the Republic. At present, however, it isn't clear to many which direction ? right or wrong ? the United States Supreme Court is taking constitutional law. On the one hand, the editorial board of the New York Times spoke for a host of other critics in complaining that "the Roberts [C]ourt demonstrated its determination to act aggressively to undo aspects of law it found wanting, no matter the cost."1 By "the Roberts [C]ourt," the editors meant what they described as a five-Justice "conservative majority [that] made clear that it is not done asserting itself on issues of grave national importance,2 perhaps including the constitutionality of health-care reform. From the perspective of these commentators, the Roberts Court has "come of age" and "entered an assertive and sometimes unpredictable phase," in which (despite the occasional surprise) the majority Justices are "fearless" in exerting their power to advance the politically conservative (pro-business, pro-gun, anti-criminal defendant) interests Chief Justice Roberts favors.3 Elena Kagan's succession to the seat of retiring Justice John Paul Stevens, on this view, was at best a holding action against the Court's complete takeover by the Right. On the other hand, the admirers of the Court's decisions generally insist that the critics are vastly overstating both the ideological content of the Court's judgments and the aggressiveness of the Justices who usually make up the majority in highly ideological, divided decisions. This error of analysis was quite deliberate, and the tale of political takeover was "all such tedious sophistry" by the Left, a dishonest demonization of Justices whose decisions were marked by caution and attention to the specific demands of the judicial process.4 The identity of the current Court, on this view, is shaped more by circumstance than ideology, and by the Justices' lawyerly approach to its role. As Jonathan Adler argued, "The Roberts Court is a work in progress, and the change in Court personnel will introduce new dynamics, as will a different combination of cases and issues that come before the Court. . . . [A]t present, we can characterize the Roberts Court as a moderately conservative minimalist Court . . . ."5 No reader was surprised to notice that critics of an aggressively ideological Roberts Court are to the left of center in terms of American politics, or that admirers of a judicially modest majority are equally likely to occupy positions to the political center's right. …
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True Threats, Self-Defense, and the Second Amendment.
Joseph Blocher,Bardia Vaseghi +1 more
TL;DR: In this paper, the Second Amendment does not protect those who threaten others by negligently or recklessly wielding firearms, and what line separates constitutionally legitimate gun displays from threatening activities is defined.
Journal Article
Toward a Future, Wiser Court: A Blueprint for Overturning District of Columbia v. Heller
Richard F. Aborn,Marlene Koury +1 more
TL;DR: In this paper, the authors discuss the influence and guidance that dissenting opinions may provide to future, wiser Courts, and evaluate the conditions that lead to overturning a Supreme Court case.
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Second Amendment Minimalism: Heller as Griswold
TL;DR: The Court's decision in District of Columbia v. Heller as mentioned in this paper was seen as a modern version of Marbury v. Madison, speaking neutrally for the text, structure, and original understanding of the Constitution.
Book
The Bias Against Guns: Why Almost Everything You've Heard About Gun Control is Wrong
TL;DR: In this paper, Lott shows how liberals bury pro-gun facts out of sheer bias against the truth and provides the information needed to win arguments with those who want to ban guns.
Posted Content
The First Amendment as Criminal Procedure
TL;DR: The relationship between the First Amendment and criminal procedure has been explored in this paper, where the authors argue that there are doctrinal, historical, and normative justifications for developing what they call "First Amendment criminal procedure."