Showing papers on "Constitutional law published in 1978"

American constitutional law

Abstract: This textbook focuses on the Constitution's provisions for government structure and on how constitutional structure helps guarantee protection of substantive rights and liberties. It promises to be an indispensable resource for teachers, students, practicing lawyers and judges. This preeminent treatise provides a wealth of original, insightful, and influential analysis of constitutional law doctrine and policy.Professor Tribe's central concern is the Constitution itself, not the Supreme Court as an institution. While addressing relevant issues of institutional capacities and roles, he does not stop at discussing the Court as the right or wrong forum to review a particular issue and render judgment; the more crucial question is whether the judgment itself was right or wrong as an element in the living development of constitutional justice.

The Eighteenth-Century Background of John Marshall's Constitutional Jurisprudence

Abstract: Between John Marshall's appointment to the Supreme Court in 1801 and Andrew Jackson's inauguration as President in 1829, the Marshall Court declared one congressional act unconstitutional' and invalidated state statutes in fourteen cases.2 Among these cases were many of Marshall's major judicial opinions, including Marbury v. Madison3 Fletcher v. Peck,4 McCulloch v. Maryland,s Trustees of Dartmouth College v. Woodward,6 and Gibbons v. Ogden.7 Marshall's constitutional cases have been of enduring significance and have generated widespread scholarly debate. Perhaps the single issue that has most divided scholars is whether the great Chief Justice should be understood to have been motivated primarily by political considerations or by more neutral principles that were less political in character. On the one hand, many scholars have con-

American Constitutional Law: Introductory Essays and Selected Cases

Abstract: Explains the history and politics behind key cases in constitutional law. After a chapter on jurisdiction and organization of the federal courts, 12 chapters offer extended excerpts from cases and chapter introductions tracing the thread of constitutional doctrine through major decisions. Includes k

Constitutional Language: An Interpretation of Judicial Decision

Abstract: This book examines theories of language for their contribution to understanding the interpretation of constitutional law by the Supreme Court.

Separation of Powers and the Scope of Federal Equitable Remedies

Abstract: functional differentiation, based on constitutional text and classical definition of function, is central to the process of reconciling claims for power in the face of the dual structural requirements of balance and separation. The necessary judicial inquiries are difficult, to be sure, but not impractical. Comparative determinations can be made of the depth of the intrusion into each branch's abstract function and the breadth of the intrusion into each branch's actual operations. The resolution least restrictive to both branches can be determined through such inquiries and can be used to accommodate the principles of balance and separation. III. THE LIMITS OF EQUITABLE RELIEF The discussion in Part I argued that separation of powers principles should apply to federal-state relationships as well as to wholly federal relationships. Part II described the underlying judicial analysis that has been employed to apply separation of powers, at least at the federal level. The purpose of this Part is to explore the ramifications of applying this same separation of powers analysis to federal-state relationships, particularly the relationship between federal courts and state executive and legislative branches. Utilization of separation of powers principles is not, of course, a substitute for efforts to define substantive limitations on federal power. Wherever the substantive boundary of federal-state relations is drawn, however, separation of powers principles provide an independent measure of the appropriateness of a particular federal branch's interference with a state government. Thus the present analysis is useful, not for determining whether some interference by the federal government is authorized or required, but for determining the proper method and scope of the interference. Application of separation of powers principles to federal-state relationships raises a host of difficult questions. For example, what are the limits to the power of Congress to interfere with state executive functions,233 or to the power of the federal executive to 233. See note 104 supra; note 305 infra and accompanying text. [Vol. 30:661 FEDERAL EQUITABLE REMEDIES interfere with state legislatures? Does the guarantee of a republican form of government impose restrictions, enforceable by Congress, on the wholly internal structure of state governments? 23 4 The discussion in this Part, however, will be limited to that increasingly common form of federal interference: the federal courts' interference with state executive branches and, to a lesser extent, with state legislative branches. In particular, the separation of powers principles derived in Part II will be applied to the problem of defining the limits of federal equitable remedies directed against recalcitrant state executives and legislatures. A. Measuring the Relative Degree of the Intrusion At first glance, functional differentiation appears inapplicable to the array of modern equitable remedies because judicial remedies, like pardons and vetoes, represent one of those merged functions inherent in a balanced Constitution. It is impossible to evaluate the propriety of such tools as regulatory injunctions or receiverships simply by descriptively comparing their purposes or processes with those of the other branches. It is equally impossible, however, to tolerate the conclusion that the general functions of one branch can be engulfed or displaced by a single constitutional "check," for the general functions have a presumptively equal claim to constitutional authority. Short of total displacement, it is not enough to say that constitutional balance requires functional overlap and interference because, at the points of conflict, the concurrent powers cannot both be implemented fully. It is possible, however, to employ functional differentiation to maximize both competing claims, subordinating to the minimum extent possible the broader or less essential claim to

God, Galileo, and Government: Toward Constitutional Protection For Scientific Inquiry

Abstract: Examines the applicability of existing constitutional law to state action that prohibits or burdens or declines to fund scientific research merely because the state considers the area inappropriate. Posits that governmental decisions to limit scientific inquiry implicate constitutional values by virtue of the connection between science and knowledge.

God, Galileo, and Government: Toward Constitutional Protection for Scientific Inquiry.

Abstract: Examines the applicability of existing constitutional law to state action that prohibits or burdens or declines to fund scientific research merely because the state considers the area inappropriate. Posits that governmental decisions to limit scientific inquiry implicate constitutional values by virtue of the connection between science and knowledge.

Fundamental Law and the Processes of Constitutional Change in Australia

Abstract: This article explores the concept of “fundamental law” as it relates to the Australian legal system. Concentrating in particular on constitutional law and the special place in that body of law of t...

A Constitutional Law of Remedies for Broken Plea Bargains

Abstract: In Santobello v. New York the Supreme Court held that a de/endant has a constitutional right to relie/ when the state breaches apromise made to him in returnfor a guiltyplea. Yet the Court re/rainedfrom deciding what remedies are constitutionally prescribed in such cases. The authors begin with the question of remedies, using it as a vehiclefor exploring the meaning of Santobello, and conclude with the suggestion that in a legal system where most convictions are based on guildypleas and most guiltypleas are based on bargained-for promises, the most important right of the criminaly accused may befound not in the law oftrialprocedure, but in the law of contracts.

The Rôle of the Judiciary in the Constitutional Systems of East Africa

Abstract: From the late 1950s until the present day the territories, colonies, and later the new states of English-speaking Africa have been engaged in a continuing effort to develop their own national constitutions. It has been an attempt to capture in written form the government structures and political systems which would best express their political will and guide them through the difficult early years of independence.

Academic Freedom in the Schools.

Abstract: The notion of academic freedom is controversial, confusing, and continually in the courts. The struggle for freedom in teaching can be traced back to the time of Plato and Socrates as those teachers fought to preserve the right to educate students with a minimum of con straint.2 Despite this ancient heritage, the concept of academic free dom still remains rather nebulous. Some courts have elevated the right to give and receive information to constitutional status through the pervasive protections of the first amendment.3 Governmental interest in protecting the impressionable minds of its youth often conflicts, however, with the interest in encouraging the free exchange of ideas.4 Consequently, the judiciary has been reluctant to issue sweeping legal declarations in the area of academic freedom. Although a wealth of litigation exists, particularly in lower federal courts, the United States Supreme Court has not provided clear guidelines regarding the legal contours of academic freedom. In sev eral cases dealing with other issues, however, the Court has taken the opportunity to voice its respect for freedom in teaching. For example, in Keyishian v. Board of Regents, a case in which a state loyalty oath for teachers was invalidated, the Supreme Court elaborated on the importance of academic freedom: