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The Article examines the traditional political necessity defense, extracting elements that are compatible with the Second Amendment and discarding elements that are not. The Article also explores the ... traditional political necessity defense more directly reflects the founding fears of government overreach. The political necessity defense absolves an individual for breaking the law as a last resort when the
This Article argues that when an individual or group acts to protect a government-assailed constitutional right by criminal means, the doctrine of political necessity may serve as a constitutionally ... Let My People Go, Part Two: The Second Amendment Political Necessity Defense and the Storming of Capital Hill argues that all forms of purposeful law- lessness, direct or indirect, forcible, or
Partisan gerrymandering is widely recognized as a threat to the foundations of our democracy. Political parties with control over their state legislatures routinely leverage the redistricting process ... —suppressing political adversaries, chilling public participation, and polarizing the electorate. Nevertheless, despite a persistent recognition that partisan gerrymandering is incompatible with basic democratic
a search for origins, usually according to the binary whether rights concepts have their origin in modernity,2 or 1 Martti Koskenniemi, Foreword: History of Human Rights as Political Intervention in ... . Rsch. Paper Series No. 2016-04 (Apr.–May 2016)), https://ssrn.com/ab stract=2781104 [https://perma.cc/F827-B8VU]. 30 Compare the “continuity” thesis of JOHN NEVILLE FIGGIS, STUDIES OF POLITICAL THOUGHT
, and methods. Overall, the Article provides normative insights, comparative lessons, and historical contexts to one of the most fundamental questions of the political community—who belongs, under what ... sincere adherence to the political philosophy of the Constitution. Those who come in any other frame of mind are asking for a privilege that they have no right to receive. No matter how well founded their
front include reviving Lochner and its political economic principles in new constitutional garb. Dangers on the social rights front, by contrast, include new constitutional family law rules written from ... , other developments, like those involving new Fourteenth Amendment privileges or immunities, could function by removing new fundamental economic and social rights from ordinary political management in the
, artistic, political, or scientific value.” When it comes to literary and artistic value, many have assumed the inquiry depends chiefly upon appraisals of aesthetic merit. But the lack of non-controversial ... Amendment and the Court’s precedents, classifying a work’s value as literary, artistic, political, or scientific in nature is constitutionally irrelevant and assessments of aesthetic merit are unnecessary
), https://www.heritage. org/political-pro cess/report/the-right-arms-and-the-american-philosophy-freedom [https://perma .cc/EC54-USW2] [hereinafter Lund, The Right to Arms]. 134 See MEIKLEJOHN , supra note ... democracy requires protections for speech that relates to democratic self-government.10 I will refer to that idea as the “political value justification” for First Amendment rights. If the Second Amendment’s
The Senate is trapped in a collective action problem. Both political parties would be better off if the Senate could consistently confirm judicial nominees on a reasonable timeline. However, when the ... Article makes the counter-intuitive claim that, whereas judicial action is generally associated with “counter-majoritarian” interference in the affairs of the political branches, judicial enforcement of
political pressure. In each case, the Supreme Court struck a surprising middle ground: It insisted that those individual rights should be broadly available but reserved judicial discretion on when to provide ... broad statutory grant of authority and interposed a new, judicially created authority—judicial review in Marbury, and qualified immunity in Pierson. And in both cases, the Supreme Court turned political
these First Amendment claims and forcefully articulate the ways that guns in public spaces threaten the free and equal exercise of constitutional rights to free speech, assembly, and political ... right to bear arms are gradually evolving to incorporate First Amendment values. Guns are transformed into public discourse—symbols and forms of political speech. * JD, Yale Law School; MA, University
sternly replied: “That’s right.”7 Checkmate. Political corruption is legal in the United States.8 While it is undeniable that the President is scarcely subject to ethical regulations,9 the Constitution ... —that of an unprecedented allegiance to the law. This distrust of human nature steered the Framers towards the promotion of a political virtue instead of mere moral virtue, which infused the Constitution
common law doctrines that developed to support a given separation of powers structure and shape the judicial oversight of the political branches. This Article identifies a list of common law doctrines ... constitutional law by disclosing the connections between separation of powers structures and common law doctrines that shape judicial oversight of the political branches. This Article makes four novel arguments
construction, we should employ an expansive conception of memory, attending to the ideas and experiences of persons and groups left out of formal constitution making, as well as social and political movements ... and negative examples.8 In American constitutional culture, originalist arguments are often hybrids that invoke collective memory.9 They combine appeals to national ethos, political tradition, and
powerful rhetoric, such parochial, legalist narratives obscure the social and political realities that made Lawrence possible. In this Article, I demonstrate that legal mobilization by activist litigants,8 ... activists in the Global South. While some activists face relatively open legal opportunity structures,57 less promising political,58 legal, and discursive opportunity structures59 face most aggrieved
practice, we cast serious doubt on judicial and political treatment of originalism which tends to frame originalism as a method, if not the method, that judges should employ when interpreting the ... courts and attorneys to parse through a glut of contradictory scholarship. Additionally, advocacy by academics—motivated by their own political views as well as their desire to attain wider readership and
. Miller, 307 U.S. 433 (1939), recognized that Congress is in a unique position to judge the tenor of the nation, to be aware of the political, social and economic factors affecting the nation and to be ... States and that the present political, social and economic conditions demonstrate that constitutional equality for women and men continues to be a timely issue in the United States. S.J. Res. 2, 79th Sess
merits that the phrase "under God" did not violate the Establishment Clause. Id. See discussion infra Part IV.A. political process. The country had seen nothing like it since the Supreme Court's flag ... children and God were involved. Newdow and the reaction to the decision call attention to the significant role in the American political community of the Pledge as a sacred5 political ritual, one that is an
In this Article, Louis Fisher acknowledges the constitutional legitimacy of executive privilege, but he argues that legal and political limits render the scope of the privilege narrower than what is ... Ticklish Political Waters, 8 Wm. & Mary Bill Rts. J. 583 (2000), https://scholarship.law.wm.edu/wmborj/vol8/iss3/4 - Article 4 Louis Fisher* In this Article, Louis Fisher acknowledges the
electoral districts for the purpose of securing their own victory (“incumbency advantage”) or the victory of their party (“political advantage”). Political gerrymandering is popularly perceived as being
