12,553 research outputs found

    Originalism and the Inseparability of Decision Procedures from Interpretive Standards

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    In his article, Originalism: Standard and Procedure, Professor Stephen E. Sachs describes a never-ending debate between originalism\u27s advocates and critics. Originalists argue that certain historical facts determine the Constitution\u27s meaning. But determining these facts is difficult, if not impossible for judges, attorneys, and the public. Sachs seeks to rise above this debate, arguing that the legal community should not expect originalism to offer a procedure for interpreting the Constitution. Instead, the legal community should treat originalism as a standard to judge interpretations. This Article takes issue with this approach. Originalism is not like other instances in law where statutes or opinions refer to other opinions, statutes, or third-party publications. Instead, originalism requires rigorous and complex analysis of historical facts to determine the Constitution\u27s original public meaning-an undertaking that most judges, attorneys, the public, and even legal academics may find challenging. Treating originalism as a standard does not avoid this concern, and originalism therefore remains unappealing when compared with alternate approaches to interpretation that do offer procedures for their implementation. Regardless, the legal community should confront these issues, rather than evade them

    Historical Tradition: A Vague, Overconfident, and Malleable Approach to Constitutional Law

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    In New York State Rifle & Pistol Association, Inc. v. Bruen, the Supreme Court overturned a century-old firearms licensing scheme that required people seeking concealed carry permits to demonstrate that they had a special need for self-defense. The Court did so by applying a “historical tradition” approach to determine the scope of Second Amendment protection. Under this approach, where the Second Amendment’s plain text covers an individual’s conduct, a law restricting that conduct must be consistent with “the Nation’s historical tradition of firearm regulation.” At first glance, the historical tradition approach may seem objective and easier than an empirical analysis of gun restrictions and their impacts. These first impressions are mistaken. In fact, the historical tradition approach presents significant challenges for attorneys and judges—challenges that the Bruen Court minimizes. And, through its vague and virtually nonexistent guidance on drawing historical analogies, the Court leaves numerous avenues for judges and justices to inject their preferences as they weigh historical evidence and determine whether sufficient evidence exists to establish a historical tradition. Indeed, within the Bruen opinion itself there are multiple examples of shoddy historical analysis and inconsistent approaches to historic evidence, all aiming to achieve a desired result. In light of the complexity and malleability of the historical tradition approach, the Court will likely continue to twist this approach to achieve its desired ends—a phenomenon that will likely be magnified in the lower courts and in future decisions in Second Amendment and other constitutional cases

    Algeria\u27s fundamentalists: Their historical context and prospects for success

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    Islamic fundamentalism, also known as Islamicism or Islamic revivalism, is a move ment that has become much more visible in the last two decades. Fundamentalist groups have been growing in membership in many Middle Eastern nations, but the Islamic revivalist movement was most prominent in the 1979 Islamic Revolution in Iran, in which radical Shi\u27ites seizea power from the Shah and his monarchy. A decade later, as that Islamic regime maintains power, many Islamic fundamentalist groups and parties have proliferated throughout the Muslim world. Although they do not hold power in any other country, in many nations Islamic fundamentalists are exerting great pressure on politics and society. This situation raises important questions about the nature of such groups, their memberships and the historical context in which they have grown. This paper will attempt to address these questions, using the Islamic Salvation Front of Algeria as an example

    The Inequality of Participation: Re-examining the Role of Social Stratification and Post-Communism on Political Participation in Europe

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    This article compares the determinants of political participation, from voting and signing petitions to boycotting, across 23 European countries, posing the question whether and to what degree social inequalities in political participation differ between post-communist and Western countries. The data for the analysis is from the second round of the ESS survey, conducted in 2004–2005. The analysis focuses on the role of education, occupation, and gender in shaping the chances of engaging in political action, while also controlling for a range of sociological, political, and demographic variables. Interaction effects between individual variables and a post-communist dummy variable are used to directly compare the statistical signifi cance of the difference in coeffi cients between post-communist and Western countries. The article finds that the observed effects of the post-communist context are actually accounted for by the indirect effects of a number of individual-level variables. In particular, education, occupation, and gender have stronger effects in post-communist countries than Western countries on many forms of political participation; in other words, the post-communist countries exhibit somewhat larger inequalities in political participation than in the West

    The revision of social-democracy, nazism and anti-bolshevism in Western Europe : 1933-1945

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