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Timothy K Kuhner - One of the best experts on this subject based on the ideXlab platform.

  • consumer Sovereignty trumps Popular Sovereignty the economic explanation for arizona free enterprise v bennett
    Indiana law review, 2013
    Co-Authors: Timothy K Kuhner
    Abstract:

    INTRODUCTION The Supreme Court’s unsettling jurisprudence on money in politics appeared to reach a logical endpoint in 2010 with Citizens United v. FEC. Over the preceding thirty-four years of campaign finance cases, a free-market theory of the Constitution had triumphed as the Court attributed to the Constitution the views that money is speech, campaign finance reform is censorship, equality and democratic integrity are unconstitutional rationales for limiting political spending, and democracy must remain a market for competing donations and expenditures. Given this trajectory, Citizens United’s definitive statement on corporate political power was predictable enough. The case became an instant classic, cementing the Court’s judgment that corporations are citizens within our democracy, and the First Amendment guarantees them the right to unlimited political spending. Outrage resounded within the populace, numerous proposals to amend the Constitution issued forth, and many states defied the ruling. By this point in

  • consumer Sovereignty trumps Popular Sovereignty the economic explanation for arizona free enterprise v bennett
    Social Science Research Network, 2012
    Co-Authors: Timothy K Kuhner
    Abstract:

    Arizona Free Enterprise v. Bennett, 131 S. Ct. 2806 (2011), invalidates the matching funds provision of Arizona’s clean elections law, one of the most effective forms of public financing for political campaigns. Bennett has tremendous implications for democracy and the increasing role of money in politics. This essay shows how the majority opinion employs economic theory as judicial reasoning, construing the First Amendment as a guarantee that political expenditures and contributions shall have their optimal, market-determined effect. Earlier cases had struck down certain limitations on political spending on the theory that money was speech and Congress could not “abridge the freedom of speech.” Although many disagree with the notion that private political spending is speech in the meaning of the First Amendment, it was at least clear that the laws at issue in earlier cases restricted that spending. The Roberts Court has now redefined the First Amendment. Even if the government does not restrict private political spending, Bennett prohibits it from providing electoral subsidies that might diminish the effectiveness of that private spending. Public financing systems such as the one contained in the Arizona law have thus become unconstitutional government interventions into the market for political power. Bennett goes beyond Buckley v. Valeo’s dictate the money is speech and democracy is a market; it even goes beyond Citizen United’s holding that corporations have a First Amendment right to political expenditures. Bennett establishes a far broader proposition: the First Amendment protects consumer Sovereignty, not Popular Sovereignty.

Kurt T Lash - One of the best experts on this subject based on the ideXlab platform.

  • the original meaning of an omission the tenth amendment Popular Sovereignty and expressly delegated power
    Notre Dame Law Review, 2008
    Co-Authors: Kurt T Lash
    Abstract:

    Today, courts and commentators generally agree that early efforts to strictly limit the federal government to only expressly enumerated powers were decisively rebuffed by Chief Justice John Marshall in McCulloch v. Maryland. According to Marshall, the fact that the Framers departed from the language of the Articles of Confederation and omitted the term “expressly” suggested that they intended Congress to have a broad array of implied as well as expressly delegated powers. As Supreme Court Justice Joseph Story later wrote, any attempt to read the Tenth Amendment as calling for strict construction of federal power was simply an attempt to insert “expressly” into the text. Today, Marshall's point regarding the significance of this omitted term is probably one of the least controversial claims about the original understanding of Tenth Amendment as currently exists in legal commentary. It is also almost certainly wrong. James Madison, Alexander Hamilton, early Supreme Court Justice Samuel Chase and numerous other members of the Founding generation regularly inserted into their description of federal power the very word that Marshall insisted had been intentionally left out. According to these Founders, Congress had only expressly delegated power. Upon investigation, it turns out that this rephrasing of the Tenth Amendment actually reflects the original understanding of the text and its underlying principle. Completely missed by generations of Tenth Amendment scholars, the addition of the phrase “or to the people” to the Tenth Amendment ensured that the Clause would be read as a declaration of Popular Sovereignty. According to this theory of government, the sovereign people were presumed to retain all powers not expressly delegated away. Repeatedly stressed by advocates of the Constitution as representing the proper construction of federal power, the principle of “expressly delegated powers” meant that Congress could utilize no other means except those necessarily or clearly incident to its enumerated responsibilities. Consistently read in combination with the Ninth Amendment's declaration of the retained rights of the people, the Tenth Amendment was broadly understand to establish a rule of strict construction of federal power the very interpretive principle rejected by John Marshall in McCulloch v. Maryland. * Professor and W. Joseph Ford Fellow, Loyola Law School (Los Angeles). J.D. Yale (1992). The author thanks Larry Solum, Gary Rowe, Clark Lombardi, Nelson Lund and the participants at the University of Washington Law School Faculty workshop series for their comments and suggestions on an early version of this paper. Special thanks to Chris Fritz for his help and advice on the vexing question of Sovereignty in the early republic.

  • the original meaning of an omission the tenth amendment Popular Sovereignty and expressly delegated power
    Social Science Research Network, 2007
    Co-Authors: Kurt T Lash
    Abstract:

    Today, courts and commentators generally agree that early efforts to strictly limit the federal government to only expressly enumerated powers were decisively rebuffed by Chief Justice John Marshall in McCulloch v. Maryland. According to Marshall, the fact that the framers departed from the language of the Articles of Confederation and omitted the term expressly suggested that they intended Congress to have a broad array of implied as well as expressly delegated powers. As Supreme Court Justice Joseph Story later wrote, any attempt to read the Tenth Amendment as calling for a strict construction of federal power was simply an attempt to foist the term expressly into the text. Today, Marshall's point regarding the significance of this omitted term is probably one of the least controversial claims about the original understanding of Tenth Amendment as currently exists in legal commentary. It is also almost certainly wrong. James Madison, Alexander Hamilton, early Supreme Court Justice Samuel Chase, and numerous other members of the Founding generation regularly inserted into their description of federal power the very word that Marshall insisted had been intentionally left out: Congress had only expressly delegated power. Upon investigation, it turns out that this rephrasing of the Tenth Amendment actually reflects the original understanding of the Clause (and federal power). Completely missed by generations of Tenth Amendment scholars, by adding the phrase or to the people to the Tenth Amendment, its framers ensured that the Clause would be read as a declaration of Popular Sovereignty. This declaration established what the Founders referred to as the principle of expressly delegated powers, meaning that Congress could utilize no other means except those necessarily incident to its enumerated responsibilities. Particularly when read in combination with the Ninth Amendment's declaration of the retained rights of the people, the Tenth's assertion of Popular Sovereignty established a rule of strict construction - the very interpretive principle rejected by John Marshall in McCulloch.

Yaniv Roznai - One of the best experts on this subject based on the ideXlab platform.

  • amendment power constituent power and Popular Sovereignty linking unamendability and amendment procedures
    Social Science Research Network, 2017
    Co-Authors: Yaniv Roznai
    Abstract:

    The theory of unamendability identifies a simple yet fundamental distinction between primary constituent (constitution-making) power and secondary constituent (constitution-amending) power. The latter is limited by unamendability and the former – perceived as the people’s democratic constitution-making power – is unlimited by unamendability. This article develops the distinction by supplementing it with a further one, between various shades of secondary constituent powers along a ‘spectrum’; a theoretical construct that links constitutional amendment procedures and limitations which ought to be imposed upon constitutional amendment powers. According to this spectrum theory, constitutional systems are polymorphic: the more similar the democratic characteristics of the amendment powers are to those of the primary constituent power, the less it should be bound by limitations; and vice versa: the closer it is to a regular legislative power, the more it should be fully bound by limitations. This examination is an important step towards a theory of unamendability.

Saikrishna Prakash - One of the best experts on this subject based on the ideXlab platform.

  • the misunderstood relationship between originalism and Popular Sovereignty
    Social Science Research Network, 2010
    Co-Authors: Saikrishna Prakash
    Abstract:

    This short essay contests the interpretational claim that fans of Popular Sovereignty often make, the assertion that originalism is a legitimate means of making sense of the Constitution merely or primarily because of the manner in which the Constitution was ratified and amended. This unduly narrows the strength and appeal of originalism, which properly understood, has nothing to do with how the legal document in question came into being. Legal documents generally ought to be understood through the originalist lens, whether those documents are the products of petty dictators or the united voice of the people. Indeed, any text or utterance, legal or not, should be understood through the originalist lens.

  • the misunderstood relationship between originalism and Popular Sovereignty
    Harvard Journal of Law and Public Policy, 2008
    Co-Authors: Saikrishna Prakash
    Abstract:

    Since The Tempting of America was published, (1) many originalists, seeking to justify their preference for adhering to the original meaning of the Constitution, have taken up the banner of Popular Sovereignty. (2) The Constitution, we are told, was ratified by "We the People." (3) According to many, the Popular ratification of the Constitution and its many amendments grants the Constitution an enduring legitimacy. (4) Because Popular Sovereignty is said to be the principal basis of the Constitution's legitimacy, one ought to follow the meaning ascribed to the Constitution by "They the People"--namely, those who ratified the Constitution and its amendments over the course of 200 years. In other words, if the American people gave the Constitution a continuing legitimacy, they also should be the ones to give it an enduring (and somewhat stable) meaning. Recently, Professor Kurt Lash asserted that Popular Sovereignty is the "most common and most influential justification for originalism." (5) Whether or not Professor Lash is correct, his assertion seems plausible. This Essay does not take issue with those who celebrate Popular Sovereignty. Nor does it deny that the Constitution's legitimacy arises by virtue of numerous acts of ratification, most of which took place several generations ago. Those are debates for another day. Instead, this Essay contests the interpretive assertion that proponents of Popular Sovereignty often make: that originalism is a legitimate means of making sense of the Constitution merely or primarily because of the manner in which the Constitution was ratified and amended. (6) This position unduly narrows the strength and appeal of originalism, which, properly understood, has nothing to do with how the legal document in question came into being. Legal documents generally ought to be understood through the originalist lens, whether those documents are the products of petty dictators or the united voice of the people. Indeed, any text or utterance, legal or not, should be understood through the originalist lens. Originalists interested in discerning the meaning of a legal text usually ask some variant of the question: What did these provisions mean when they were enacted? Some originalists look to the lawmakers" subjective meaning: What did the actual lawmakers mean by the text that they purported to make law? Other originalists try to identify a semantic meaning, which is a sort of generic public meaning that might sometimes be distinct from what the actual lawmakers intended: What would this language mean to most ordinary people at the time? (7) Originalists of all stripes eventually have to examine evidence that sheds light on their preferred version of original meaning. No one can properly say what a text written over two centuries ago meant at the time without examining far more than the text alone. Hence, originalists typically examine materials like Samuel Johnson's A Dictionary of the English Language, (8) debates from the time of the Constitution's framing and ratification, and post-ratification history (including material from Congresses, Presidents, and courts). (9) More resourceful originalists may examine letters from the era, newspaper articles, books, and any other available document to determine original meaning. (10) After all, common usage not only establishes a public, semantic meaning; it also provides evidence of legislative intent, for lawmakers often intend the common meaning of the words they use. But an obvious question arises once one examines something besides the text: How are we to make sense of these other sources that are being used to unearth a constitutional provision's original meaning? If one does not apply originalism to these documents but instead applies the theory of a living dictionary, a living letter, or a living Federalist Paper--the obvious counterparts to the living Constitution theory--then one will not really be discerning and recovering the Constitution's original meaning. …

Stella Ladi - One of the best experts on this subject based on the ideXlab platform.