Harvard Journal of Law & Public Policy

Tri-annual journal featuring scholarly review of law and issues of importance to students, educators, and practioners.

Articles from Vol. 34, No. 3, Summer

Direct Democracy: Government of the People, by the People, and for the People?
In the Gettysburg Address, President Lincoln declared ours a "government of the people, by the people, [and] for the people." (1) Is the Gettysburg Address an appropriate template for the American Constitution? Are national referenda and initiatives...
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Elections Matter
The invitation to speak at the 2010 Federalist Society National Lawyers Convention was especially meaningful to me as I consider myself to be the last of a dying breed. When pressed, I usually have considered myself a moderate, and I have long feared...
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Embodied Equality: Debunking Equal Protection Arguments for Abortion Rights
I. SITUATING THE EQUAL PROTECTION PROBLEM: SEX DISCRIMINATION, PREGNANCY, AND ABORTION A. Why the Equal Protection Clause? B. Early History of Sex Discrimination Law C. Casey, Virginia, Hibbs--and Nyugen II....
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Entrenching Good Government Reforms
Those concerned with enumerated powers, the Tenth Amendment, and limited governance have many questions about current trends in U.S. governance: Has the federal government grown too large? Is it doing too much? Has it transgressed lawful limits? Is...
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How to Count to Thirty-Four: The Constitutional Case for a Constitutional Convention
INTRODUCTION Thirty-four is a magic number. A mathematician might explain that thirty-four is the smallest whole number greater than two-thirds of fifty. A political scientist, or a first grader, might explain that fifty has been the number of states...
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Machinegunning Reason: Sentencing Factors and Mandatory Minimums in United States V. O'Brien
Although the competition between the institutions of the judge and jury for power within the legal system is hardly new, extending back well into the hazy mist of our legal system's common law origins, (1) the Supreme Court's decision last Term in...
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May Lawyers Be Given the Power to Elect Those Who Choose Our Judges? "Merit Selection" and Constitutional Law
INTRODUCTION Imagine that Congress enacted a law under which the nation's bank presidents elect three people to serve as candidates for Secretary of the Treasury, and the President is required to appoint one of these candidates. Or suppose that...
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Preface
In the past decade, we as Americans have faced new legal and political challenges to a unique degree. Many of those challenges have led us to new questions regarding constitutional interpretation and application. The 2010 Annual National Federalist...
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The Changing Landscape of Firearm Legislation in the Wake of McDonald V. City of Chicago
The Second Amendment, which enshrined the right to keep and bear arms, (1) has become one of the most contentiously debated amendments in the Bill of Rights. (2) Recently, legislation has restricted the ability to carry, use, or even own firearms....
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The Constitutionality of Proposition 8
Is Proposition 8 (1) unconstitutional? This straightforward question is a very difficult topic to address, particularly because the entire litigation is ill-conceived, and because I am a fairly ardent libertarian with respect to matters of personal...
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The Constitutionality of Social Cost
INTRODUCTION I. LIBERTY AND EXTERNALITIES--A COASEAN VIEW OF FREEDOM II. THE SUPREME COURT AND THE SECOND AMENDMENT A. District of Columbia v. Heller and McDonald v. City of Chicago B. Breyer's Balancing Test C. Scalia's...
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What's the Harm? Nontaxpayer Standing to Challenge Religious Symbols
I. CURRENT CASE LAW A. The Supreme Court's (Limited) Guidance B. Circuit Court Precedent 1. The Direct and Unwelcome Contact Test 2. The Altered Behavior Test II. THE WEAK BASIS FOR THE TESTS APPLIED ...
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Why We Cannot Ask Why: Ethical Independence and Voter Intent
Should a vote still count if cast for the wrong reason? More specifically, when citizens decide a legislative question themselves, whether through initiative, referendum, or plebiscite, should judges require their votes to be backed by a certain level...
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