An Inconsistent Jurisprudence: The Doctrinal Spectrum

2020 ◽  
pp. 93-136
Author(s):  
Edward A. Jr. Purcell
Keyword(s):  
Affirmative Action ◽  
First Amendment ◽  
Free Speech ◽  
Fourteenth Amendment ◽  
Commerce Clause ◽  
Constitutional Jurisprudence ◽  
The U.S

This chapter explores Justice Antonin Scalia’s constitutional jurisprudence across the broad range of issues he addressed. The chapter shows that he contradicted his originalist jurisprudence in interpreting the First Amendment (both its free speech and religion clauses) as well as the Fourth, Fifth, and Eleventh Amendments, and that he did the same in construing a variety of other constitutional doctrines including those involving standing, the treaty power, affirmative action, the Commerce Clause, the Fourteenth Amendment, and the U.S. Supreme Court’s own appellate jurisdiction. The chapter argues that he frequently twisted, ignored, and abandoned his jurisprudential principles and methodologies he proclaimed and that the principal consistency his decisions and opinions reveal was his commitment to his own ideological goals and values.

The Supreme Court in the Era of Bifurcated Review V

2019 ◽  
pp. 691-784
Author(s):  
G. Edward White
Keyword(s):  
Twentieth Century ◽  
Supreme Court ◽  
First Amendment ◽  
Free Speech ◽  
Due Process ◽  
Fourteenth Amendment ◽  
Political Campaigns ◽  
Religious Minorities ◽  
The Supreme Court ◽  
Constitutional Jurisprudence

Of all the areas of twentieth-century constitutional jurisprudence, that of free speech has had the most dramatic transformation. From a state of insignificance, the First Amendment has been applied against the states in the Due Process Clause of the Fourteenth Amendment and made the basis for invalidating restrictions on the expressive activities of political and religious minorities, corporations, contributors to political campaigns, and commercial advertisers.

Why Care What the Constitution Says?

2013 ◽  
Author(s):  
Randy E. Barnett
Keyword(s):  
Fourteenth Amendment ◽  
Natural Rights ◽  
Police Power ◽  
Original Meaning ◽  
Commerce Clause ◽  
Ninth Amendment ◽  
Constitutional Legitimacy ◽  
The U.S

This book examines whether the U.S. Constitution—either as written or as actually applied—is legitimate. It argues that the most commonly held view of constitutional legitimacy—the “consent of the governed”—is wrong because it is a standard that no constitution can meet. It shows why holding the Constitution to this unattainable ideal both undermines its legitimacy and allows others to substitute their own meaning for that of the text. The book considers the notion of “natural rights” as “liberty rights,” along with the nature and scope of the so-called police power of states. Furthermore, it analyzes the original meaning of key provisions of the text that have been either distorted or excised entirely from the judges' Constitution and ignored: the Commerce Clause and the Necessary and Proper Clause in the original Constitution, the Ninth Amendment, and the Privileges or Immunities Clause of the Fourteenth Amendment.

scholarly journals Elonis v. United States: The Doctrine of True Threats: Protecting Our Ever-Shrinking First Amendment Rights in the New Era of Communication

2015 ◽  
Vol 15 (2) ◽  
pp. 197-223
Author(s):  
Mary Margaret Roark
Keyword(s):  
United States ◽  
Supreme Court ◽  
First Amendment ◽  
Free Speech ◽  
Freedom Of Speech ◽  
The United States ◽  
New Era ◽  
The Public ◽  
Definition Of ◽  
The U.S

The First Amendment protects one of our most precious rights as citizens of the United States—the freedom of speech. Such protection has withstood the test of time, even safeguarding speech that much of the population would find distasteful. There is one form of speech which cannot be protected: the true threat. However, the definition of what constitutes a "true threat" has expanded since its inception. In the new era of communication—where most users post first and edit later—the First Amendment protection we once possessed has been eroded as more and more speech is considered proscribable as a "true threat." In order to adequately protect both the public at large and our individual right to free speech, courts should analyze a speaker’s subjective intent before labeling speech a "true threat." Though many courts have adopted an objective, reasonable listener test, the U.S. Supreme Court now has the opportunity, in deciding Elonis v. United States, to take a monumental step in protecting the First Amendment right to free speech. By holding that the speaker’s subjective intent to threaten is necessary for a true threat conviction, the Court will restore the broad protection afforded by the First Amendment and repair years of erosion caused by an objective approach.

The Right to Free Speech

Troublemakers ◽  
2019 ◽  
pp. 11-50
Author(s):  
Kathryn Schumaker
Keyword(s):  
First Amendment ◽  
Free Speech ◽  
Student Activism ◽  
Voter Registration ◽  
School Segregation ◽  
Constitutional Rights ◽  
Freedom Summer ◽  
Des Moines ◽  
The Right ◽  
The U.S

This chapter examines how two student free speech cases, Burnside v. Byars and Blackwell v. Issaquena County, emerged out of the 1964 Freedom Summer voter registration campaign in Mississippi in 1964. This chapter argues that the two cases were the result of increased student activism following Freedom Summer and that these two First Amendment cases were the result of conflict over the broader issues of racial discrimination and school segregation in Mississippi. These cases were eventually cited in the U.S. Supreme Court lawsuit Tinker v. Des Moines, which established the constitutional rights of all students and led to increased litigation. This chapter explains how the rationale in these cases focused on whether students were considered disorderly, and it argues that concepts like disorder can be racially coded and therefore affect the perception of student actions differently based on the race of students and the context of the action.

Philosophical Ruminations

2018 ◽  
Author(s):  
John Attanasio
Keyword(s):  
First Amendment ◽  
Free Speech ◽  
Campaign Finance ◽  
Freedom Of Speech ◽  
Ronald Dworkin ◽  
Political Campaigning ◽  
Town Meeting ◽  
Inclusive Approach ◽  
American Society ◽  
Constitutional Jurisprudence

Ideas matter. Constitutional jurisprudence decisions reflect overarching intellectual trends in society. The Buckley Constitution reflects the influence of modern individualistic libertarianism in contemporary American society. Some prominent authors have glimpsed more inclusive approaches to free speech. For example, renowned First Amendment theorist Alexander Meiklejohn sought to illustrate an inclusive approach to freedom of speech in his timeless metaphor of a town meeting. This chapter begins by outlining several wrong turns that the campaign finance cases have taken which render an inclusive approach impossible. One involves equating spending money with speaking. Spending money to speak is at most a combination of speech and action. Moreover, monetary limitations on political campaigning are similar to content neutral time, place, and manner restrictions. Some authors concerned with the distribution of speech rights have overtly offered a more egalitarian free speech approach. They include Jürgen Habermas, Bruce Ackerman, and Ronald Dworkin.

From Contracts to Constitutions

2018 ◽  
pp. 108-132
Author(s):  
Julee T. Flood ◽  
Terry L. Leap
Keyword(s):  
Academic Freedom ◽  
First Amendment ◽  
Free Speech ◽  
Private Colleges ◽  
Freedom Of Speech ◽  
Public Institutions ◽  
Court Cases ◽  
Key Issues ◽  
Private Colleges And Universities ◽  
The U.S

Two key issues stemming from the First Amendment of the U.S. Constitution are discussed: freedom of speech and academic freedom. These two ideals are largely non-existent for faculty members working at private colleges, and universities and they are probably more restricted than faculty at public institutions might imagine. This chapter focuses on U.S. Supreme Court cases (e.g., Garcetti v Ceballos) as well as AAUP definitions of academic freedom. Defamation and other free speech issues are also discussed.

THE ENFORCEMENT OF VIRTUE

2018 ◽  
Vol 35 (02) ◽  
pp. 182-197
Author(s):  
F. H. Buckley
Keyword(s):  
New Zealand ◽  
First Amendment ◽  
Free Speech ◽  
Campaign Finance ◽  
Public Officials ◽  
American Character ◽  
The Supreme Court ◽  
Campaign Finance Laws ◽  
Free Speech Rights ◽  
The U.S

Abstract:Corruption of public officials is the silent killer of the U.S. economy, and we should reflect carefully on how it might be reined in. That’s the thought behind campaign finance laws. But broad grants of discretion to authorities, which might work in New Zealand, are more likely to be abused in low-trust America, and campaign finance laws are one example of this. First Amendment free speech rights, as interpreted by the Supreme Court, represent its reflection on the American character and the possibility of abuse when Congress tries to restrict political speech. So conservatives are apt to think, and not entirely without reason.

Attitudes toward affirmative action and collectivism: A cross-cultural assessment for Brazil and the U.S

2008 ◽  
Author(s):  
Amy M. Knepple ◽  
James Carney ◽  
Mino Rios ◽  
Sara Santos Chaves ◽  
Gilcimar Santos Dantas
Keyword(s):  
Affirmative Action ◽  
Cross Cultural ◽  
Cultural Assessment ◽  
The U.S
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