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Is Constitutionalism Liberal?
Get PDFLet me begin with the obvious: I am not claiming that any scholar, or educated person, believes that the only constitutions that have ever existed have been liberal. Everyone knows or should know that, for example, the Greek constitutions of Solon, Lycurgus, and others discussed in Aristotle\u27s Politics predate liberalism by many centuries.\u27 Moreover, constitutions come in a wide variety of forms, and many of these, whether written or unwritten, have explicitly been illiberal. What I maintain is that there is a prejudice among lawyers in particular that constitutions must be liberal in order to be worthy of the name. To be fully legitimate, likely to last, and worthy of support, on this view, a constitution must embody certain principles, namely rule by consent, the rule of law, mechanisms limiting governmental power, and individual rights. Yet none of these putatively liberal goods are in fact liberal. Indeed, all that is liberal in liberal constitutionalism is an insistence that only individual rights be recognized, and that these rights be read so as to maximize individual autonomy and equality. The result is a concentration of power in the state that undermines the essential virtues of and necessary for constitutionalism. Here I begin by reviewing the monolithic nature of liberal constitutional interpretation, proceed to review the claims and reality of liberal constitutional goods, then examine the impact of liberal individualism on the essentials of constitutionalism
Is Modern Legal Liberalism Still Compatible with Free Exercise of Religion?
Get PDFClassic liberal legal thought has clearly been shaped by the influence of Christianity. But in recent years, the movement, like ancient Gnosticism, has some Christian elements, but has become a decidedly anti-Christian force in the courts. This comparison tracks well with the analysis of other parallel modern intellectual movements by the political scientist Eric Voegelin. It is also supported by current events such as the recent Federal District Court opinion by Chief Judge Vaughn Walker in Perry v. Schwartzenegger. Liberalism has transformed from an attempt at neutrality, to an established religion that not only promotes its own perverse version of the good, but also seeks to silence, and perhaps will seek to destroy, its perceived enemies. The precepts of the new liberalism are also incompatible with the law as it has been practiced in the west for the last eight hundred years, and incompatible with the Christian World as evidenced by the Bible and much of traditional orthodox Christian thought. A new political settlement is needed in the west that can continue to resist the pressures of religious groups who seek to dominate others by force, while at the same time allowing into the public square the reasons and ideas necessary for just civil government
Between Liberalism and Theocracy
Get PDFOur symposium conveners have focused us on the relationship between liberalism and Christianity and their influence on American constitutionalism. \u27 My objective is to complicate the relationship and reorient the influence. The focus of my inquiry is the liberty of conscience and its implications for navigating the relationship between church and state.\u27 By approaching these issues through the lens of political theology (as distinct from either political or constitutional theory), I hope to show that some of the most significant embodiments of conscience in the American colonies can neither be squared with an individualistic liberalism (as some on the left are prone to do) nor appropriated in the service of arguments that collapse the distinction between church and state (as some on the right are prone to do)
Looking for Bedrock: Accounting for Human Rights in Classical Liberalism, Modern Secularism, and the Christian Tradition
Get PDFPart I of this Article looks to the history of foundations of human rights from late pre-modern times to the late-eighteenth century Founding era in America. The focus of the discussion of this era will be on two dominant strands of rights talk in America, Protestant Christian and Enlightenment. From two views operating side-by-side in the last decades of the eighteenth century, Part II will examine the contemporary ambivalence of many Christians, particularly those identified as Evangelicals, about the contemporary human rights movement. Part III addresses a specifically Christian foundation for human rights that can dispel some of the concerns of Evangelicals about human rights. This Article will go on to contrast this foundation with a leading current non-theistic alternative. The proffered understanding of the divine delegation of the authority to implement civil justice is less well entrenched in Christian thought. Nonetheless, it provides an account for the legitimacy of state action from within the Christian tradition. This Article will conclude with some thoughts about the benefits of bringing this specifically religious perspective to bear on the topic of human rights
Panel Discussion: Intersection of the North Carolina and Federal Rules of Civil Procedure
No full textBills of Attainder and the Formation of the American Takings Clause at the Founding of the Republic
Get PDFThis Article first addresses takings law generally during the American colonial period as a background to the general understanding of takings at the founding. Next will be a discussion of the thinking of the founders, particularly James Madison, regarding the best ways to protect individual and property rights. The ban on bills of attainder will then be discussed in detail, followed by a review of the purposes and intent of the Fifth Amendment in light of the attainder language. The Article will conclude with a discussion of how the Eleventh Amendment was primarily created as a way to protect the states from attainder lawsuits
Rothgery v. Gillespie County: Applying the Supreme Court\u27s Latest Sixth Amendment Jurisprudence to North Carolina Criminal Procedure
Get PDFDespite the Court\u27s efforts in Rothgery to shore up a bright-line rule for attachment based upon prior case law, the contours of the Sixth Amendment right to counsel are still somewhat obscure. To understand the impact of the Court\u27s holding, each state will need to assess its criminal procedure and identify how to reconcile the Court\u27s holding with current practices. This Comment identifies two areas of North Carolina criminal procedure that have been impacted by the Court\u27s holding in Rothgery: (1) the expanded scope of a defendant\u27s protection under the Sixth Amendment during police questioning under Rothgery; and (2) Rothgery\u27s impact on attachment of the right to counsel in light of the arresting officer\u27s discretion to cite the arrestee rather than perform a full custodial arrest. This Comment will discuss: the disconnect between the rule enunciated in Rothgery and current North Carolina criminal procedure; the impact of Rothgery on current practices, specifically police interrogation of defendants without the presence of counsel and the practice of misdemeanor citation and custodial arrest; and finally, recommendations for streamlining North Carolina criminal procedure to comply with the Court\u27s holding in Rothgery