West Law Report

THE CORE OF AN UNEASY CASE FOR JUDICIAL REVIEW

Posted in Harvard Law Review (Article), judicial review, Richard Fallon by mrkooenglish on June 11, 2008

Richard H. Fallon, Jr.’s article in Harvard Law Review (May 2008) (.pdf) (44 pages):

The best case for judicial review in politically and morally healthy societies does not depend (as is commonly believed) on the idea that courts are more likely than legislatures to define vague rights correctly. It rests instead on the subtly different ground that legislatures and courts should both be enlisted to protect fundamental rights and, accordingly, that both should have veto powers over legislation that might reasonably be thought to violate such rights.

In developing this case for judicial review, Professor Fallon proceeds by confronting recent, influential, philosophically probing arguments against judicial review by Professor Jeremy Waldron. Professor Fallon concedes arguendo that, as Professor Waldron argues, courts are no better than legislatures at defining rights correctly, but maintains that the crucial question is not whether courts or legislatures are less likely to err, but which kinds of errors are most important to avoid ?those that result in rights being overprotected or those that result in rights being infringed. Insofar as judicial review can be designed to prevent errors in just one direction, involving failures to protect rights adequately, then judicial review may be supportable even if courts are no better than legislatures at identifying rights correctly. Professor Fallon also argues, contra Professor Waldron, that judicial review can actually contribute to the political legitimacy of an otherwise democratic scheme of government when the demands of political legitimacy are understood correctly.

Professor Fallon revised justification for judicial review, which does not presume courts to be better than legislatures at identifying fundamental rights, has important implications for how judicial review should be practiced. It implies a diminished role for courts in cases in which fundamental rights are pitted against one another, such that the overenforcement of one entails the underenforcement of the other. It also implies that courts should withhold review when legislatures conscientiously seek to protect one fundamental right without plausibly threatening another.

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HABEAS CORPUS JURISDICTION, SUBSTANTIVE RIGHTS, AND THE WAR ON TERROR

An article of Richard H. Fallon, Jr. and Daniel J. Meltzer in Harvard Law Review (Jun 2007) (.pdf) (84 pages):

This Article provides a broad-lens, synoptic perspective on war-on-terrorism questions arising within the habeas corpus jurisdiction of the federal courts. Analytically, it develops a clear framework for sorting out the tangle of jurisdictional, substantive, procedural, and scope-of-review issues that habeas cases often present. Methodologically, it champions a common lawike approach to habeas adjudication under which courts must exercise responsible judgment in adapting both statutory and constitutional language to unforeseen exigencies.
The Article also takes substantive positions on a number of important issues. In the jurisdictional domain, it defends the Supreme Court controversial decision in Rasul v. Bush, which interpreted the habeas statute as it then stood to authorize inquiry into the lawfulness of detentions at Guantanamo Bay. The Article also argues, however, that a court would overstep if it read the Constitution as mandating review of detentions of aliens in such wholly foreign locales as Afghanistan or Iraq. Scrutinizing post-Rasul legislation that eliminates habeas for alien detainees and substitutes more limited review in the D.C. Circuit, the Article argues that the resulting scheme is constitutionally valid as applied to most cases in which the D.C. Circuit can exercise review, but invalid insofar as it entirely precludes detainees in the United States or at Guantanamo Bay from challenging their detention or conditions of confinement before a civilian court.

With respect to substantive rights, the Article argues that American citizens seized outside of battlefield conditions have a right not to be detained indefinitely without civilian trial. It explains why the constitutional rights of noncitizens are more limited, but argues that existing statutes should not be read to authorize aliens?detention as enemy combatants when they are seized in the United States, away from any theater of combat. Finally, the Article analyzes some of the most important procedural and scope-of-review questions likely to come before habeas courts.

Judicially manageable standards and constitutional meaning

Posted in Harvard Law Review (Article), original meaning, Richard Fallon by mrkooenglish on June 11, 2008

Richard H. Fallon, Jr.’s article in Harvard Law Review (Mar 2006) (.pdf) (59 pages):

The Supreme Court has long held that disputes that do not lend themselves to resolution under udicially manageable standards?present nonjusticiable political questions. Filling several gaps in the literature, this Article begins by exploring what the Court means by judicial manageability. Professor Fallon identifies a series of criteria that anchor the Court analysis, but he also argues that in determining that no proposed test for implementing a constitutional guarantee is judicially manageable, the Court must often make an ultimate, all-things-considered assessment of whether the costs of allowing adjudication to proceed would exceed the benefits. This determination is so discretionary, Professor Fallon argues, that if the requirement of judicial manageability applied to the Court own decisionmaking process (as it does not), the criteria by which the Court identifies judicially unmanageable standards might themselves be disqualified as judicially unmanageable.

Although the demand for judicially manageable standards is most prominent in the political question doctrine, Professor Fallon argues that the concern to develop judicially manageable tests pervades constitutional adjudication. Until glossed by judicially formulated tests, most constitutional provisions would not pass muster as judicially manageable standards. Moreover, some of the tests that courts adopt largely for reasons of judicial manageability underenforce, whereas others overenforce, the underlying constitutional guarantees. Linking the phenomena of constitutional underenforcement and overenforcement to the demand for judicially manageable standards, Professor Fallon propounds he permissible disparity thesis?that there can be acceptable gaps between the Constitution meaning and the doctrinal tests applied by courts. He then deploys the permissible disparity thesis to cast new light on the nature and significance of both constitutional theories and constitutional rights, many of which should be viewed as partly aspirational, not necessarily requiring full, immediate enforcement.

Developments in the Law: the Law of Media

Posted in Harvard Law Review (Article), Law and information, Law of Media by mrkooenglish on June 11, 2008

An article in Harvard Law Review (Feb 2007) (.pdf) (78 pages):

Table of Contents

  1. I. Introduction: New Media, New Secrecy, New Questions
  2. II. Protecting the New Media: Application of the Journalist’s Privilege to Bloggers
  3. III. Prosecuting the Press: Criminal Liability for the Act of Publishing
  4. IV. Viewpoint Discrimination and Media Access to Government Officials
  5. V. Internet Jurisdiction: A Comparative Analysis
  6. VI. Media Liability for Reporting Suspects’Identities: A Comparative Analysis
  7. VII. Newsgathering in Light of HIPAA

In the article:

Part II explores whether blogs, an increasingly important source of news, will receive protections that have long been available to more traditional news sources. After describing the constitutional, common law, and statutory protections available to reporters generally, this Part asks which of these might most readily — and helpfully — be extended to blogs. After concluding that the common law reporter’s shield will almost certainly cover bloggers but may provide insufficient protection, this Part discusses a recent, groundbreaking case from California5 that extended a statutory reporter’s shield to bloggers despite the statute’s failure to mention blogs explicitly.6 This Part then examines whether this decision is likely the beginning of a trend, and evaluates the steps bloggers could take to increase the likelihood that they will receive such protection in the future.

Part III discusses whether, in light of several recent, high-profile news stories that revealed classified information7 and corresponding threats of retaliation from the Bush Administration and members of Congress,8 members of the press could be prosecuted for reporting classified national security information. After describing the history of government attempts to prevent the press from publishing classified information and outlining the general rules regarding when members of the press can be prosecuted for breaking the law, this Part asks whether a recent case, United States v. Rosen,9 sets a new precedent suggesting that the press can be successfully prosecuted for publishing classified information.

To analyze further the role of the media in an age of renewed government secrecy, Part IV explores the contours of the relationship between the First Amendment and media access to both government leaks and one-on-one interviews with government actors. Although the First Amendment provides no special right of the press to access government information,10 the government’s selective dissemination of information to only some members of the media based on reporters’ past speech may constitute impermissible viewpoint discrimination. This Part catalogues several recent decisions that appear to permit government actors to restrict press access based on reporters’ past speech. Analysis of the decisions indicates that although courts are willing to patrol for viewpoint discrimination when the government limits access to a press forum to which other journalists have access, they are less willing to do so when government actors limit access to interactive information-gathering opportunities, such as interviews. After considering the practical implications of these cases, this Part suggests that future courts more clearly distinguish between government action that pragmatically limits access based on time or space constraints and government action that denies certain reporters access based on their past speech. As new technology sends media content around the globe, comparison of international and domestic laws affecting the media has new importance. Parts V and VI explore two classes of recent developments in the United States and Commonwealth countries that affect the potential liability of media defendants.

Part V compares U.S. and Commonwealth doctrine on the exercise of personal jurisdiction over media defendants in defamation cases based on Internet content. U.S. courts have settled on a targeting test, which finds jurisdiction only when a media defendant intentionally directs content specifically at viewers in the forum state.11 In contrast, Commonwealth nations including the United Kingdom, Australia, and Canada have settled on a more lenient foreseeability test, which allows jurisdiction whenever it is foreseeable that content will be available and potentially cause harm.12 This Part argues that the differing jurisdictional tests stem in part from entrenched differences in the substantive laws of, and the value placed on speech in, the United States and Commonwealth nations. Viewing the procedural tests as outgrowths of substantive differences helps explain why arguments to change procedural tests in Internet cases have failed. Looking forward, this Part predicts that a treaty harmonizing the different jurisdictional approaches would be helpful but is unlikely, and that media defendants will therefore increasingly rely on technology to limit the dissemination of Internet content to avoid being subject to jurisdiction in foreign courts.

Part VI explores the legal implications in the United States and Commonwealth nations of media reports about suspects in criminal cases and investigations. Historically, laws that governed reporting about suspects tended to align with the divergent trends toward media protection in the United States and reputation protection in Commonwealth nations. However, this Part recounts recent developments that imply some convergence in the traditional doctrines. In the United States, a recent Fourth Circuit decision13 provided stronger protection to a suspect-plaintiff than traditional U.S. doctrine would have afforded when it evaluated the overall tone of a newspaper’s report to find the report capable of defamatory meaning. In the United Kingdom, recent defamation decisions provided new protection to the media by expanding the qualified privilege defense14 and directing lower courts to apply this privilege more consistently.15 Similarly, the recent passage of uniform defamation acts in Australia16 may foreshadow in- creased protection for the media in that country. However, despite these steps toward more plaintiff protection in the United States and more media protection abroad, this Part concludes that convergence of the laws governing reporting about suspects in these jurisdictions is unlikely due to deep differences in underlying defamation and criminal contempt laws.

Finally, Part VII examines the interaction between the Health Insurance Portability and Accountability Act17 (HIPAA), a federal law designed to protect the privacy of individuals’ health information, and state Freedom of Information (FOI) laws,18 which are designed to ensure public access to government documents. This Part describes three recent cases from different states that addressed difficult issues about where and how to draw the line between the public’s right to know and individuals’ rights to keep their medical information secret. This Part concludes that questions about the interaction of state FOI laws and HIPAA should be guided by the framework suggested in HIPAA regulations for understanding the interaction between HIPAA and the federal Freedom of Information Act.19 State courts and agencies should therefore use the provisions in state FOI laws that regard medical privacy to inform decisions about information requests from citizens and the media.

Judge Posner: A Political Court

Judge Richard A. Posner’s FOREWORD: A POLITICAL COURT in Harvard Law Review (Nov 2005) (.pdf) (78 pages):

Scholars discuss the work of the Supreme Court in two different ways. The less common is that of social science, with its emphasis on positive rather than normative analysis, its refusal to take at face value the fficial?explanations for judicial phenomena proffered by insiders ?in a word, its realism. To a social scientist, or to a law professor or other jurist who is imbued with the social-scientific approach, the Supreme Court is an object of observation rather than of veneration or condemnation. The social scientist asks, without preconceptions drawn from the professional legal culture, why the Court decides cases as it does and in the form in which it does (long, cholarly?opinions, etc.), and what the consequences of the decisions are. The inquiry delves into such matters as the ideology and temperament of particular Justices; the appointments process; the Court caseload, procedures, and strategic interactions with Congress and other parts of government; behavioral models of judges; the influence of the Zeitgeist on judicial decisions; and ?critically ?the nature and strength of the constraints that operate on the Justices. The goal is not only to under-stand judicial behavior at the Supreme Court level, but also to understand the consequences of that behavior ?for example, to estimate how the crime rate, the number of people in prison, and the incidence of error in the criminal process would be different had the Supreme Court decided landmark criminal cases, such as Gideon v. Wainwright or Miranda v. Arizona, in favor of the government, or how our politics would differ if the Court had not entered the legislative reapportionment thicket in cases such as Baker v. Carr and Wesberry v. Sanders. An interesting recent literature, written from a diversity of political perspectives ?surprisingly, mainly from the Left ?asks the disquieting question whether the net benefits of federal constitutional law are positive, including the subsumed question whether constitutional law has really made much of a difference in the nation policies, values, and practices.

The other way in which to discuss the Court work ?and the way more familiar to lawyers, law professors, and judges ?is to subject it to normative analysis conducted from within the professional culture. The analyst praises or condemns particular doctrines or decisions, or the reasons offered for them by the Court (textual, historical, pragmatic, and so forth) ?more often condemns them, arguing that they are mistaken, unsound ?more precisely, that they are mistakes of law, that the Court simply got the law wrong. This type of Supreme Court scholarship is a branch of rhetoric or advocacy ?a continuation of brief writing and opinion writing by other means ?but it is not wholly unrelated to the first type, the social-scientific study of constitutional law. The behaviors and consequences that a nondoctrinal perspective brings to light can be, or can explain, things the normative analyst deplores (more rarely approves). So if, like Professor Henry Hart in his famous Foreword, you thought the Court was making frequent legal errors, you might attribute this to structural conditions ?to the overuse of summary reversals or, as Hart himself believed, to an excessive workload (the excess being due in part to the Court proclivity for granting certiorari in unimportant cases).
My aim in this Foreword is to be realistic, though without hewing closely to any particular social-scientific methodology; indeed, I shall perforce rely to a degree on that most dubious of methodologies, introspection ?specifically, on the impressions that I have gleaned from being a federal appellate judge for the last twenty-four years. I shall argue that, viewed realistically, the Supreme Court, at least most of the time, when it is deciding constitutional cases is a political organ, and (confining myself to constitutional law) I shall develop some implications of this view, drawing in part on earlier Forewords, such as Hart.

Part I presents statistics that bear on two issues: the tendency of the Court to behave egislatively?and the perception of the Court as an increasingly constitutional court. Part II presents my main thesis, which is that to the extent the Court is a constitutional court, it is a political body. I distinguish there between two forms of political judging, the ggressive?and the odest? my preference is for the latter. Part III examines several alternatives to the political conception of the Court: the Court as expert administrator, the Court as institutionally constrained to behave in a lawlike manner, the Court as moral vanguard, and the Court as a cosmopolitan court searching for international legal consensus. The first two alternatives are descriptively inaccurate; the latter two are aggressively political approaches covered by a veneer of legal reasoning. Part IV discusses, with reference to several recent cases, the Court potential to be a pragmatic decision maker of the odest?kind introduced in Part II.

Sosa, customary international law, and the continuing relevance of Erie

Posted in Harvard Law Review (Article), Sosa v Alvarez Machain by mrkooenglish on June 11, 2008

(1)
An article of Curtis A. Bradley, Jack L. Goldsmith, and David H. Moore in Harvard Law Review (Feb 2007) (68 pages):

This Article analyzes the Supreme Court 2004 decision in Sosa v. Alvarez-Machain against the backdrop of the post-Erie federal common law. The Article shows that, contrary to the assertion of some commentators, Sosa did not embrace the odern position?that customary international law (CIL) has the status of self-executing federal common law to be applied by courts without any need for political branch authorization and, indeed, is best read as rejecting that position. Commentators who construe Sosa as embracing the modern position have confounded the automatic incorporation of CIL as domestic federal law in the absence of political branch authorization (that is, the modern position) with the entirely different issue of whether and to what extent a particular statute, the Alien Tort Statute (ATS), authorizes courts to apply CIL as domestic federal law.

The Article also explains how CIL continues to be relevant to domestic federal common law despite Sosa rejection of the modern position. The fundamental flaw of the modern position is that it ignores the justifications for, and limitations on, post-Erie federal common law. As the Article shows, however, there are a number of contexts in addition to the ATS in which it is appropriate for courts to develop federal common law by reference to CIL, including certain jurisdictional contexts not amenable to state regulation (namely, admiralty and interstate disputes), as well as gap-filling and interpretation of foreign affairs statutes and treaties. The Article concludes by considering several areas of likely debate during the next decade concerning the domestic status of CIL: corporate aiding and abetting liability under the ATS, application of CIL to the war on terrorism, and the use of foreign and international materials in constitutional interpretation.

(2)
Responding by William S. Dodge Customary International Law and the Question of Legitimacy (9 pages):

In 1997, Professors Curtis Bradley and Jack Goldsmith shook the international law academy by arguing that the Supreme Court decision in Erie Railroad Co. v. Tompkins made it illegitimate for federal courts to continue to apply customary international law (which they called CIL) without further authorization from Congress. The Supreme Court 2004 decision in Sosa v. Alvarez-Machain seemed to reject this argument, holding that federal courts could apply customary international law under the Alien Tort Statute (ATS) without any authorization beyond the jurisdictional grant. Undaunted, Professors Bradley and Goldsmith (joined now by Professor David Moore) have returned to claim that Sosa in fact supports their argument and that ourts can domesticate CIL only in accordance with the requirements and limitations of post-Erie federal common law.? In my view, their latest article not only misinterprets Sosa but also raises fundamental questions concerning both the legitimacy of customary international law itself and the legitimacy of requiring its express incorporation into the U.S. legal system, a requirement that is contrary to the understanding of the founding generation.

(3)
Responding by Ernest A. YoungSosa and the Retail Incorporation of International Law (8 pages):

Since its release in 2004, Justice Souter majority opinion in Sosa v. Alvarez-Machain has become something of a Rorschach blot, in which each of the contending sides in the debate over the domestic status of customary international law (CIL) sees what it was predisposed to see anyway. Neither the thoughtful article by Professors Curtis Bradley, Jack Goldsmith, and David Moore, nor this comment upon that article, is any exception to that tendency: we, too, read Sosa as vindicating our previously expressed positions on this debate. That is an embarrassing situation for scholars all round, and it counsels caution in interpreting what the Court actually did and said in Sosa. But the willingness of all sides to claim victory doesn mean that nobody, in fact, won. I think that CIL revisionists like Professors Bradley, Goldsmith, and Moore (with whom I consider myself at least a fellow traveler) have the better claim on Sosa. In this brief comment, I hope to explain why.

An objection to Sosa

Posted in Harvard Law Review (Article), Sosa v Alvarez Machain by mrkooenglish on June 11, 2008

A NOTE in Harvard Law Review (May 2006): AN OBJECTION TO SOSA — AND TO THE NEW FEDERAL COMMON LAW (.pdf) (22 pages)

Legal scholars have frequently derided the absence of a coherent theory of federal common law.1 As Professor Martha Field has put it, “[b]ecause limits on federal common law are incoherent, individual litigants have the opportunity to change the substantive rules in many situations in which state law has been assumed to govern.”2 Nonetheless, federal courts at the very least have adhered to a standard taxonomy of when such judicial lawmaking is appropriate: federal common law can arise both in “those [cases] in which a federal rule of decision is ‘necessary to protect uniquely federal interests,’ and [in those cases] in which Congress has given the courts the power to develop substantive law.”3 The Supreme Court has subdivided the former category into “rights and obligations of the United States, interstate and international disputes implicating the conflicting rights of States or our relations with foreign nations, and admiralty cases.”4 Into the latter category the Court has placed a variety of important national laws that fail to include either substantive rules necessary for their enforcement5 or express causes of action.

In Sosa v. Alvarez-Machain,7 a 2004 case concerning the scope of the Alien Tort Statute (ATS),8 the Court expanded federal common law to include a narrow set of eighteenth-century international law claims, such as piracy, as well as claims under modern customary international law (CIL)9 with at least as “definite content and acceptance among civilized nations” as those eighteenth-century norms.10 In doing so, the Court conceded that the ATS only grants federal jurisdiction over international law torts and thus that the first Congress did not create, explicitly or implicitly, a right of action under the statute.11 In a similar vein, the Court hinted that CIL claims brought under the ATS might fall into the special federal interest “enclave” of “our relations with foreign nations” but failed to explain why, if that is the case, any international law norm is not sufficient to invoke general federal question jurisdiction under 28 U.S.C. § 1331.12

This Note’s ambition is modest: to demonstrate that Sosa’s common law is inconsistent with the traditional taxonomy of federal common law. It first explains the Erie-based justification for the standard taxonomy. It then reviews the legal developments and doctrinal tensions
that gave rise to Sosa. Turning to the decision itself, this Note shows how Sosa is the first time the Court has unabashedly recognized federal common law that does not fall in either of the categories. Finally, this Note considers whether a footnote in Banco Nacional de Cuba v. Sabbatino13 undermines this conclusion.

The Extraterritorial Constitution and the Interpretive Relevance of International Law

A note in Harvard Law Review (May 2008) (.pdf) (22 pages):

For over a century, courts have wrestled with the question of whether, and to what extent, the Constitution applies outside of the United States. While this question first surged to prominence when the enterprise of American expansionism went to the Supreme Court in the Insular Cases, it has begun to receive renewed attention in recent years as the post-9/11 war on terrorism has brought extraterritoriality issues to the fore. Though the precise legal framework that will govern this question is unclear at the moment, there are indications the Constitution may apply when the result would not be “impracticable and anomalous.” Given the significance of this matter, it is striking that the “impracticable and anomalous” standard “has not yet acquired an academic theorist who would elaborate and defend it as the best interpretation of U.S. constitutionalism.” Indeed, the standard has been criticized for giving courts too much discretion on sensitive matters.

Part I discusses the state of the law following United States v. Verdugo-Urquidez (1990) and the contemporary significance of the question of extraterritorial application of the Constitution. Part II situates the “impracticable and anomalous” standard in historical context, drawing on the nineteenth-century use of international law to identify “powers inherent in sovereignty,” and lays out a justification for the contemporary use of international law in fleshing out the Constitution’s extraterritorial applicability.

Part III argues that in the context of the war on terrorism, it is sensible to look to IHL to guide the inquiry into when certain rights apply extraterritorially. By reference to the differences between battlefield targeting law and detention law — vestiges of the traditional “Hague Law”-“Geneva Law” distinction in IHL — this Note demonstrates how, under the “impracticable and anomalous”standard, Fourth Amendment protections do not apply to house-tohouse counterterrorist sweeps abroad, but Fifth Amendment procedural due process protections apply to war on terrorism detainees held extraterritorially. These examples prove nothing conclusively, but they do illustrate the promise the international law–based approach offers in clarifying this murky area of the law. Finally, Part IV concludes with some discussion — and some potential caveats — regarding the broader usefulness of this framework beyond IHL and the war on terrorism.

Hamdan v Rumsfeld: The legal academy goes to practice

Posted in Hamdan v Rumsfeld, Harvard Law Review (Article) by mrkooenglish on May 20, 2008

In the paper (Harvard Law Review, Vol 120, Nov 2006) (.pdf) (59 pages), Professor Neal Kumar Katyal discusses:

Like any excluded group, practitioners have begun disparaging the theoreticians in return. We are witnessing one of the most significant developments in the history of American law: the majority of professors on many law faculties are now specializing in areas that are of no obvious relevance to their students’ activities upon graduation.

This Comment uses Hamdan to illustrate why the disparagement of theory is partially wrong. By examining the litigation of the case, it demonstrates some of the benefits of theory to practice. This Comment oscillates, with any luck instructively, between Hamdan’s implications for legal education and its implications for the law.

Part I discusses how broad theoretical research sheds light on the litigants’ strategic moves. Part II explains the implications of the Hamdan decision. Part III looks to the future of both the bar and the academy.

Should the Favorable Termination Rule Apply to Individuals Who Lack Access to Habeas Corpus?

In the note of Harvard Law Review (Issue 121, Jan 2008) (.pdf) (22 pages): Defining the Reach of Heck v. Humphrey: Should the Favorable Termination Rule Apply to Individuals Who Lack Access to Habeas Corpus?

Part I examines Heck (1994) itself, as well as Preiser v. Rodriguez (1973) and Spencer v. Kemna (1998), two other cases involving the overlap between § 1983 and habeas. Part II discusses the restrictions on habeas that may operate in tandem with Heck to bar relief, and discusses the difficulties lower courts have faced in determining Heck’s breadth. Part III argues that Heck’s favorable termination rule overreaches in cases where AEDPA bars habeas relief; when the dangers associated with the overlap between habeas and § 1983 do not apply, Heck’s doctrinal foundations become much less salient. Part III also discusses the pragmatic interests at stake and concludes that they, too, support the availability of § 1983 relief. Part IV concludes.

An Originalist Analysis of the No Religious Test Clause

Posted in church and state, Harvard Law Review (Article), original meaning by mrkooenglish on May 18, 2008

A note in Harvard Law Review (Issue 120, April 2007) (21 pages)

Through a textual and historical analysis of the No Religious Test Clause, this Note argues that the clause prohibits only a governmentimposed requirement that an individual seeking public office bin himself, through an oath or affirmation, to adhere to a particular religious belief or to celebrate a particular religious sacrament. Beyond this limitation, it does not forbid officials — or the general citizenry — from considering or even inquiring into an individual’s religious beliefs when deciding whether to nominate, confirm, or vote for the individual. Thus, many — though not all — of the recent allegations of No Religious Test Clause violations are misguided.

Part 1: The text and the pre-ratification history of the clause
Part 2: Whether recent congressional and presidential actions violate the clause
Part 3: Concludes

The Living Constitution

Posted in Constitution of United States, Harvard Law Review (Article) by mrkooenglish on May 18, 2008

The 2006 Oliver Wendell Holmes Lecture notes (76 pages) of Bruce Ackerman, the Yale Professor.

I. LECTURE ONE: ARE WE A NATION?
II. LECTURE TWO: THE CIVIL RIGHTS REVOLUTION
III. LECTURE THREE: THE CONVERSATION BETWEEN GENERATIONS