Bork v. Burke

Article Abstract:

Applying a conventionalist approach consistent with the philosophy of British scholar Edmund Burke to the task of constitutional interpretation might provide solution more satisfying to conservatives than either originalism or normativism. The conventionalist inquiry focuses on the text, as does originalism, but it seeks the conventional present-day meaning instead of the original meaning. Conventionalism provides adherence to the rule of law, and it ensures continuity to a greater extent than originalism can. The risk of judicial activism is minimized by the Burkean approach.

Analysis, Beliefs, opinions and attitudes, Burke, Edmund (English statesman), Judicial restraint

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The role of institutional factors in protecting individual liberties

Article Abstract:

Three institutional factors are most important in the protection of individual liberties. Recognition of private property rights creates a diffusion of economic power, which helps to limit the accumulation of political power. Division of government by federalism or separation of powers also helps to prevent political repression. An independent judiciary with the power to enforce a bill of rights is the third factor. These multiple institutional checks act as fail-safe mechanisms and also act synergistically to protect freedom.

Political aspects, Civil rights

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Toward a principled interpretation of the Commerce Clause

Article Abstract:

The Supreme Court's recent efforts to revive constitutional limits on federal authority will not go forward unless the Court can arrive at a more principled interpretation of the Commerce Clause. The Clause must be restricted to activities that actually cross a state line if only indirectly. The Court must also recognize that Congress wields its commerce power concurrently with the states, and that discrimination against interstate commerce must be based on intent rather than impact.

United States, Laws, regulations and rules, Interstate commerce

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