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In 1932, Eugene Angelo Braxton Hemdon, a young Afro-American member of the Communist Party, U.S.A., was arrested in Atlanta and charged with an attempt to incite insurrection against that state's lawful authority. Some five years later, in Herndon v. Lowry, Herndon filed a writ of habeas corpus asking the U.S. Supreme Court to consider the constitutionality of the Georgia statute under which he had been convicted. Two weeks before his twenty-fourth birthday, the Court, voting 5-4, declared the use of the Georgia political-crimes statute against him unconstitutional on the grounds that it deprived Herndon of his rights to freedom of speech and assembly and because the statute failed to furnish a reasonably ascertainable standard of guilt. Herndon v. Lowry is generally acknowledged as one of the great civil liberties decisions of the 1930s, one of the notable "success stories" of the Supreme Court's First Amendment jurisprudence. It marked the first time the Supreme Court had mentioned the Holmes-Brandeis "clear and present danger" formula in the ten years since its decision in Whitney v. California. It was also the first case in which the Supreme Court used the test to uphold the civil liberties claims of an individual against censorial state action, the first time the Supreme Court reviewed a sedition conviction from the South, and the first political-crimes conviction reviewed by the Court that involved an African-American defendant.

Item 1042-A, 1042-B (microfiche). ; "October 1985." ; At head of title: 99th Congress, 1st session. Committee print. ; Cover title. ; Includes bibliographical references. ; Mode of access: Internet.

Includes bibliographical references (p. 365-377) and index. ; Mode of access: Internet.

The "constitutional principle of separation of powers" could be understood to mean any one of several different things. It could mean, as the formalists argue, that each branch has exclusive power to perform a single designated function, unless the Constitution expressly permits an exception. Or it could mean, as the functionalists believe, that courts should strive to maintain a diffusion of power among the branches. Conceivably, it could mean nothing -- the constitutional principle of separation of powers could just be a shorthand reference for the sum of all specific clauses that govern relations among the branches, but add nothing to what these clauses individually require. Each of these interpretations would have serious drawbacks. The exclusive functions construction would be too rigid, the diffusion of power understanding too flexible, and neither comports with the full range of Supreme Court decisions defining the structural Constitution. The conclusion that the principle adds nothing to the specific clauses would be more consistent with the pattern of outcomes reached by the Supreme Court, but would be an open invitation to create a Fourth Branch of government that would permit massive evasions of those clauses in the future. A better strategy would be to interpret the principle as incorporating a minimal requirement that there be only three branches, with every federal office accountable to one of the constitutional branches. Such an understanding would provide substantial continuity with the past: it would be consistent with the text of the Constitution and with Madison's explanation of the mechanism for preserving the constitutional structure, and would not contradict any of the Supreme Court's judgments in major separation-of-power cases. For the future, it would prevent Congress from circumventing the specific clauses of the Constitution that limit the power of the branches, and would preserve the dynamic tension among the branches that has worked well for over 200 years in maintaining "the liberty and security of the governed."

This report examines the recent legislative history of proposed constitutional amendments to require a balanced federal budget.

"Federal Indian law. is a loosely related collection of past and present acts of Congress, treaties and agreements, executive orders, administrative rulings, and judicial opinions, connected only by the fact that law in some form has been applied haphazardly to American Indians over the course of several centuries. Indians in their tribal relation and Indian tribes in their relation to the federal government hang suspended in a legal wonderland." In this book, two prominent scholars of American Indian law and politics undertake a full historical examination of the relationship between Indians and the United States Constitution that explains the present state of confusion and inconsistent application in U.S. Indian law. The authors examine all sections of the Constitution that explicitly and implicitly apply to Indians and discuss how they have been interpreted and applied from the early republic up to the present. They convincingly argue that the Constitution does not provide any legal rights for American Indians and that the treaty-making process should govern relations between Indian nations and the federal government. ; https://scholarship.richmond.edu/bookshelf/1331/thumbnail.jpg

This Comment will explore questions left unanswered by the Court in Jean v. Nelson. In examining the scope of the government's exclusion power and the constitutional position of the excludable alien, this Comment proposes a new framework for analyzing the government's authority over immigration law generally. The proposed framework consists of a two part test which is based on a reexamination of two early Supreme Court immigration decisions. The first prong of the test defines and limits the scope of the government's plenary power over immigration through a framework derived from Wong Wing v. United States." The second prong is based on Kaoru Yamataya v. Fischer (The Japanese Immigrant Case) and establishes constitutional limitations on the government's authority over immigration even when exercised within the scope established under the Wong Wing framework.

In 1845, antislavery constitutionalist Lysander Spooner argued that the Declaration of Independence was originally a legal constitution with a direct bearing on how one ought to interpret the status of slavery under the Constitution of 1787. In 1889, the congressional act establishing the states of North Dakota, South Dakota, Montana, and Washington required that their state constitutions "not be repugnant to the Constitution of the United States and the Declaration of Independence," as if the two documents were of a piece. In 1995, attorney Christopher Darden argued to the jury in the O.J. Simpson criminal trial that slain victims Nicole Brown Simpson and Ronald Goldman had rights to "life, liberty, and the pursuit of happiness" as stated in the Constitution, which is perhaps where many Americans think this famous phrase is found. Darden's "mistake" reflects a widespread perception that in some way the Declaration of Independence does embody the principles to which Americans are constitutionally committed. Moreover, that perception is shared by some legal scholars. In fact, throughout American political history, there have been legal scholars, judges, and other interpreters of our Constitution who have contended that the Declaration of Independence has (or deserves) a privileged place in constitutional interpretation.

Islam is commonly viewed in the West as being incompatible with democracy. It is also viewed as an "Oriental" religion that has spawned violence and encouraged human rights violations. Because of the historical interaction between the West and Islam, the United States has recently been supporting efforts to export its democratic principles and human rights values to Muslim countries. In this context, the question of constitutional borrowing gains special significance. To assess the possibilities of constitutional borrowing between Islamic countries and the United States, it is important to first discuss the historical relation between the two, as well as between Islamic concepts and early American thought on democracy. For this reason, some basic features of Islamic constitutionalism will be introduced and analyzed. Islamic concepts are rooted in the Qur'an, the most fundamental source of guidance for all Muslims, and related secondary sources. Examination of these sources reveals that most Orientalist writing on the nature of Islam during the eighteenth century was either distorted or false. Most importantly, for our purposes in this article, this examination will also provide the reader with a more adequate basis for comparing Islamic constitutionalism with American constitutionalism.

When America attacked Iraq in 2002, it was the first preemptive war in the history of our nation. While there is daily debate over the wisdom and consequences of that action, the question whether the federal government even possessed the power under the Constitution to wage preemptive war does not seem to have been raised. Although the legal literature abounds with discussion about whether the President may authorize significant military operations without the explicit authorization of Congress, the author could not find a single work written in legal cases or commentary about preemptive war. This article considers this heretofore unanswered question of whether the federal government possesses the power to engage in preemptory war. Looking at a variety of sources, including America's use of military force throughout its history, the framer's view of war, and the political philosophy and religious views of the framers, the author concludes that such power is beyond that given the federal government in the Constitution. Thus, even were both the President and Congress to concur in such a war, with Congress making a formal declaration of war, the action would be unconstitutional. The article also explains why the Political Question Doctrine does not bar judicial review of whether or not a proposed use of military force is preemptive.

Constitutional Law is "tough law." It is tough to master – tough to teach and tough to learn. There are several reasons for this thorough difficulty. First, it is not an exaggeration to say that the fate of the nation is often at stake in constitutional cases and controversies, and constitutional decisions have shaped our history as a people. Second, we Americans can lay claim to inventing the field, and we have been continuously preoccupied with reinventing it for more than two centuries of applied political philosophy. Third, the Supreme Court is one of the most fascinating institutions inside or outside government. Fourth, there is so much extant material - more than five hundred Talmudic volumes of the U.S. Reports full of majority, concurring, and dissenting opinions augmented by the interpretations and implementations of various other constitutional actors in the political branches. Fifth, every October Term's docket presents novel issues for decision, and each new nomination and confirmation renders much of constitutional law indeterminate, so there is a constant sense of uncertainty, anticipation, and discovery in the field. Sixth, constitutional analysis – if one thinks deeper and broader than mere doctrine and three-pronged tests – takes on metaphysical, quasi-religious qualities of immanence and transcendence that are far more profound than any other subject in law school. For these and other reasons, constitutional law is the toughest subject in the curriculum. This review essay will explain why the author uses Ronald D. Rotunda's casebook, Modern Constitutional Law and how he goes about teaching Constitutional Law.

The first part of the report gives a brief history of the flag protection issue, from the enactment of the flag protection act in 1968 through consideration of a constitutional amendment. The second part briefly summarizes the two decisions of the United States Supreme court.

The first part of the report gives a brief history of the flag protection issue, from the enactment of the flag protection act in 1968 through consideration of a constitutional amendment. The second part briefly summarizes the two decisions of the United States Supreme court.

The first part of the report gives a brief history of the flag protection issue, from the enactment of the flag protection act in 1968 through consideration of a constitutional amendment. The second part briefly summarizes the two decisions of the United States Supreme court.

In their introduction to a fine new edition of Alexis de Tocqueville's Democracy in America, Harvey C. Mansfield and Delba Winthrop claim that "[i]f the twentieth century has been an American century, it is because the work of America. has been to keep democracy strong where it is alive and to promote it where it is weak or nonexistent." By "democracy" they doubtless intend something akin to "constitutional democracy," "liberal democracy," or "republican government." I take each of these to be a rough proxy for a constitutionalist system that includes (1) institutions authorized by and accountable to the people (both in the making of the order and in the regular operation of government); (2) some notion of limited government (whether by the designation of purposes for governmental action, the specification of rights, or the allocation of authority among institutions); and (3) rule of law (which connotes the regularization of processes by which public norms are made and applied). Whatever the precise contours of the concept, the claim that the success and strength of the United States derive from a commitment to democracy (or, as I shall use it here, constitutionalism), has an almost intuitive appeal. It is my sense, however, that even a cursory look at the United States' record of diplomatic, military, and covert initiatives- the regimes it has supported, opposed, or toppled, and how and why it has done so-would raise doubts about that commitment. In this essay, I give voice to those doubts. I first observe that much of the history of American prominence-even pre-eminence-in the world is a story as much of military conflict as of constitutionalism. Second, I argue that the nation's persistent engagement in military conflict is constitutionally significant. By "significant" I have in mind two measures, although I do not attempt to specify them precisely in this essay. One is that the persistent use of force has altered consequentially the norms and institutions that constitute the United States. The other is ...