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Scalia Ginsburg Collegiality Series with Judges Patricia Millet & Jeffrey Sutton
No full texthttps://scholarship.law.wm.edu/ibrlposters/1029/thumbnail.jp
Citizen Lawyers in Action Award Presentation with the Honorable Liz Cheney
No full texthttps://scholarship.law.wm.edu/ibrlposters/1033/thumbnail.jp
Constitutional Federalism and the Nature of the Union
Get PDFFederalism is an essential feature of the Constitution’s design and structure, but the Constitution does not spell out every respective authority of the federal government and the States in precise detail. This omission has led some observers to embrace broad—if not unlimited—federal power and reject certain longstanding federalism doctrines—such as state sovereign immunity, the anti-commandeering doctrine, and the equal sovereignty of the States. The objection to such doctrines is that the Constitution does not affirmatively grant States these sovereign rights and powers. This charge overlooks long-forgotten background context essential to faithful interpretation of the Constitution. The former British Colonies in North America became “Free and Independent States” following the Declaration of Independence—a status that entitled them to all of the rights and powers of every other sovereign state under the law of nations. Under that law, states could alienate their sovereign rights and powers in a binding legal instrument, but only if the instrument met certain requirements. As Vattel explained, and Hamilton echoed in The Federalist, all instruments used to alienate such rights and powers were subject to an important background rule designed to avoid misunderstandings and war: a legal instrument could alienate sovereign rights and powers only if it did so in clear and express terms or by unavoidable implication. Instruments that failed this test left sovereign rights and powers with the original holder. Hamilton explained that because the Constitution involved a “division of the sovereign power,” this rule was “clearly admitted by the whole tenor of the instrument.” Thus, as this Article and our prior work reveal, the proper question in federalism cases is not whether the Constitution affirmatively grants the States sovereign rights and powers (it does not), but whether it includes text sufficient to alienate the rights and powers they enjoyed when they became “Free and Independent States.” From this perspective, the Court’s leading federalism doctrines have a firm basis in the original meaning of the constitutional text—understood in its full legal and historical context. In defending this thesis, the Article responds to several scholars who have recently challenged our approach. Their critiques do not withstand scrutiny and are refuted by substantial evidence found not only in America’s pre-constitutional founding documents and background law, but also in The Federalist Papers, the ratification debates, and significant early opinions of the Supreme Court
Provenance Researchers Wanted: How & Why the Fiduciary Duty of Care for Museum Trustees Should Be Expanded
Get PDFAs non-profit directors, museum trustees owe the fiduciary duties of care and loyalty to their institutions. The museum community has established that provenance research is crucial to the ethical operation of museums; however, employing a full-time provenance researcher has not been considered as falling under the duty of care. This Note argues that the fiduciary duty of care for museum trustees should be interpreted to include the employment of a full-time provenance researcher or the establishment of a full-time provenance research department. First, employing a full-time provenance researcher can prevent potential lawsuits against museums because they have the proper skills, time, and resources to identify and reach out to potential claimants of valued artworks and objects. Second, a full-time provenance researcher can generate positive press by acting as a mediator between museums, the general public, and foreign governments. Finally, other major players in the art world, such as international multimillion-dollar auction houses, have established the custom of hiring full-time provenance researchers. This Note also briefly addresses potential future counter-arguments
Is the Constitution of 1787 a White Supremacist Document? Against Essentialism in Constitutional Interpretation
Get PDFA curious convergence is emerging in legal academia around the conclusion that the 1787 Constitution is a white supremacist document. Although most originalists would deny that contention, their methodology strongly favors, if it does not compel, an agreement with progressive, “neo-Garrisonian” scholars that the Constitution of 1787 is indeed a white supremacist document. Both the neo-Garrisonian and originalist elements of this implicit convergence stem from their “essentialism” in Constitutional interpretation: the idea that the Constitution or its terms or provisions carry a uniquely and objectively correct meaning, invariant over time, and independent of our evolving normative commitments.
This Article argues that essentialism is a mistaken approach to constitutional interpretation. Contrasting Chief Justice Roger Taney’s lead opinion in Dred Scott, holding that Black people cannot be “citizens” of the United States, with Frederick Douglass’s Glasgow Speech, arguing that the Constitution is not a pro-slavery document, this Article argues that these two texts embody not simply a clash of conclusions, but also a clash of approaches to understanding what the Constitution is. Taney’s opinion is archetypally originalist and essentialist; Douglass’s speech, widely misunderstood as an essentialist, textualist argument, is in fact a powerful anti-essentialist argument that the Constitution of 1787 was an invitation to struggle over the questions of slavery and white supremacy. The Article further disputes the widely accepted neo-Garrisonian claim that originalism and living constitutionalism both fail the Dred Scott “test.” While living constitutionalism, with its embrace of evolving moral values, would today reject Dred Scott, Taney’s originalist opinion adheres to the tenets of the intentionalist and public meaning strands of originalism and meets present-day professional standards of originalist scholarship. Thus, while living constitutionalism can, originalism cannot disown Dred Scott
The Process Before the Promise: Ensuring Indigenous Recognition from the Chilean Constitution
Get PDFPart I of this Note provides a background and overview of the relatively recent surge in the constitutionalization of indigenous rights and recognition in Latin America, and the state of constitutional reform in Chile. Part II lays out a theoretical understanding of the powers of a constitution as a mechanism for societal reformation and as a platform for bringing legal claims, as played out in Brazil and Bolivia. Part III demonstrates the ways in which practical manifestation of that theoretical power stops short. More specifically, both intentional and incidental barriers dampen the effectiveness of the constitutional mechanism for ensuring indigenous rights and recognition. Next, Part IV explains how the region’s indigenous peoples experience this resultant gap between the possession of constitutionally enshrined recognition and the inability to realize the accompanying rights. Lastly, in Part V, this Note proposes supplemental measures to complement a Chilean constitution-making process that mitigates this undesirable outcome. The principal argument is simple: More deliberate mechanisms must be in place to understand indigeneity. The proposal is twofold. Firstly, state actors and constitution drafters must obtain a foundational understanding of indigeneity at the outset, as those who are tasked with envisioning and achieving the constitutional aspiration of indigenous empowerment would have no conception of what this entails otherwise. Secondly, there must be an establishment of consultative bodies to provide continued consultation and representation to foster this understanding and respect in constitutional practice. This Note makes these proposals with specific consideration of the constitutional reform context in Chile.
This abstract has been taken from the author\u27s introduction
International Foundation for Electoral Systems in Washington, D.C.
No full textHank Blackburn [1L] will intern with IFES’ Center for Anti-Corruption and Democratic Trust, which works with partners worldwide to combat corruption, support democratic renewal, and build trust in democratic processes, systems, and institutions by strengthening the efforts of public officials, independent institutions, and civil society to promote good governance
The Delegation Doctrine
No full textDespite the focus on the Court’s recent major questions cases, signs of an emergent delegation doctrine can also be found elsewhere. Most significantly, seeds of a delegation doctrine have been planted within the Court’s Chevron jurisprudence. The Court’s increased reluctance to grant Chevron deference to administrative agencies--and its insistence that courts first conclude that interpretive authority has been delegated before deferring to any agency interpretation—rests on the same core premise as the Court’s recent major questions doctrine decisions. It also suggests that the “new” major questions doctrine is not as new as it might seem, but rather a logical outgrowth of principles the Court has already embraced: Agencies may only exercise power delegated to them by Congress, and the amount of evidence required to demonstrate that authority has been delegated should correlate with the nature and scope of the authority claimed.
In making this claim this essay is both descriptive and prescriptive. It is descriptive in that it seeks to identify doctrinal threads that cut across administrative law doctrine. It is prescriptive in that it suggests that fully embracing the delegation doctrine would result in a more coherent jurisprudence and address many contemporary concerns about the administrative state and the proper role of the judiciary in policing the exercise of delegated power. Rationalizing (and perhaps reforming) the Court’s recent major questions holdings in purer delegation terms would insulate them from some of the criticisms levied by scholars and would reduce concerns that they are unprincipled assaults on administrative power. At the same time, focusing on delegation can constrain judicial deference to agency interpretations without requiring a complete abandonment of the Chevron doctrine. Following through on the implications of using delegation as a unifying principle can also help move the Court’s administrative law jurisprudence in a more positive direction, both by placing the major questions doctrine cases on firmer footing, as well as by making sense of what sorts of delegations—and resulting deference to agency authority—should or should not be troubling to those skeptical of administrative power.
This abstract has been taken from the author\u27s introductory paragraphs
