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The Concession That Dooms Originalism: A Response to Professor Lawrence Solum
No full textThis essay responds to a recent article by Professor Lawrence Solum in the Northwestern University Law Review, which describes alleged differences between Originalism and Living Constitutionalism. This paper argues that even under Solum\u27s own criteria there is no meaningful difference between these two theories of constitutional interpretation, and this merger is important for current political and legal debates about the proper role for the Supreme Court in our system of government.
The original promise of Originalism was that only by combining strong judicial deference with the search for original intent or meaning could judges be meaningfully constrained when resolving many of our country\u27s most difficult social, political, and legal issues. As more and more Originalists drop the deference aspect of the theory, however, and tell judges to apply the original meaning of the constitutional text differently as relevant facts (and values) change, judicial discretion is maximized. Whereas most Living Constitutionalists concede judges inevitably have that discretion, Originalists today still often claim that only their theory can limit the power of runaway federal judges. That claim, however, is unpersuasive given the wide swath of discretion judges have under current Originalist theory to pick and choose which facts are relevant and which ones have changed since the text at issue was originally ratified.
The only meaningful theory of constitutional interpretation that can, in practice, privilege the Constitution\u27s original meaning is one which includes strong judicial deference to other government officials, but most Originalists no longer advocate such deference
The Vacancies Act and an Acting Attorney General
Get PDFThe President’s November 2018 designation of Matthew Whitaker to be the Acting Attorney General was unprecedented and calls into question several legal issues. Though many are based on questions of constitutionality, there is a strong and novel argument that the statute used by the President to designate Mr. Whitaker, the Federal Vacancies Reform Act (FVRA), may not be used in such a way. Instead, a separate office-specific statute, 28 U.S.C. § 508, alone controls who may become the Acting Attorney General. By presenting never-before-seen legislative histories to support that conclusion, and by separately applying well-settled canons of statutory construction, it also becomes clear that FVRA cannot be used to designate persons to act in other offices that have their own specific succession statute
\u3cem\u3eOlmstead\u3c/em\u3e at Twenty: The Past and Future of Community Integration: A Letter From the Guest Editors
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No Pets Allowed: The Need to Address Increasing Abuses of Assistance Animal Regulations Under Federal Law
Get PDFThe following Note discusses the nuances associated with assistance animal regulations. Part I provides an in-depth overview of the current laws in place permitting certain rights to handlers of assistance animals under a variety of circumstances. Part II analyzes the abuses of assistance animal regulations and discusses the distinctions between service animals and emotional support animals. Part III discusses proposed solutions to streamline the regulations, including establishing a national registration system and increasing educational efforts to help minimize abuses under federal law
Taming Immigration
Get PDFRemarks on Immigration by David A. Martin at the 64th Henry J. Miller Distinguished Lectur
Hate Wins
No full textThis paper looks at the connection between hate crimes, property ownership, and segregations
Mythologies of Violence in American Police Videos
No full textWhat only a few decades ago would have been considered a totalitarian nightmare seems to have become reality: Surveillance practices and technologies have infiltrated all aspects of our lives, forcing us to reconsider established notions of privacy, subjectivity, and the status of the individual in society. The United States is central to contemporary concerns about surveillance. American companies are at the forefront of developing surveillance technologies; and government agencies, in the name of security and law and order, are monitoring our words and actions more than ever before. This book brings together an interdisciplinary group of scholars to explore the implications of what many consider to be a far-reaching social, political, and cultural transformation