Recent works…

A Story of Privileges and Immunities: From Medieval Concept to the Colonies and United States Constitution, 34 Campbell L. Rev. 7 (2011) (@ SSRN).


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Final draft available

Final draft is available: Privileges and Immunities and the Journey from the Articles of Confederation to the United States Constitution: Courts on National Citizenship and Antidiscrimination  (SSRN).

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Draft of forthcoming article available

I’ve uploaded a draft of Privileges and Immunities and the Journey from the Articles of Confederation to the United States Constitution: Courts on National Citizenship, Substance, and Antidiscrimination, 35 Whittier L. Rev. —- (2014), available at  http://ssrn.com/abstract=2374985

 

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Update: Substantive Due Process

The due process language of the Fifth and Fourteenth Amendment traces back to Chapter 39 of the Magna Carta.  Throughout the later middle ages, the due process concept was linked to the king’s arbitrary exercise of power.  The medieval king took executive enforcement action unjustly without judgment as the law or custom of the land required.  [continued…]

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Equality before the Law

[The principle that all persons by age or sex, birth or color, origin or condition, are equal before the law,] as a broad general principle, such as ought to appear in a declaration of rights, is perfectly sound; it is not only expressed in terms, but pervades and animates the whole spirit of our constitution [continued…]

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Individual Rights and Unwise Legislation

However absolute the right of an individual may be, it is still in the nature of that right that it must bear a portion of the public burdens and that portion must be determined by the legislature. This vital power may be abused, but the Constitution of the United States was not intended to furnish [continued…]

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Substantive Equal Protection

The Thirteenth Amendment ended slavery, but that amendment said nothing of the civil, political, and social status of newly freed slaves.  Attempting to address this deficiency and establish and protect several key citizenship rights, the 39th Reconstruction Congress passed the Civil Rights Act of 1866 (CRA).  Section One of the CRA provided:

That all persons born [continued…]

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Every statute is presumed to be constitutional

“Every statute is presumed to be constitutional.  The courts ought not to declare one to be unconstitutional, unless it is clearly so.  If there is doubt, the expressed will of the Legislature should be sustained.”

“We know that this is a power which may be abused; but that is no argument against its existence.  For [continued…]

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Brutus’s Criticisms of the Supreme Court

While the Anti-Federalists may have been alarmists with respect to congressional overreaching under the proposed constitution, there is little room for doubt that the Anti-Federalists nailed the Supreme Court problem directly on its head. Regarding the judicial branch, Brutus commented in 1787 that it is easy to see that “these courts will eclipse the dignity, and take away from the respectability, of the state courts[,] . . . and in the course of human events it is to be expected, that they will swallow up all the powers of the courts in the respective states.” [continued…]

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Express Mail and Ratification of the Constitution

How we take e-mails and texting for granted…

Express Riders and Ratification

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Checks and Balances

The delegates to the Philadelphia Convention of 1787 were very concerned, nearly to the level of paranoia, about putting too much power in one place—other than that power placed in the people themselves.  The easiest way to diffuse power was to place it in many hands and provide for checks and balances in the written [continued…]

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