The Hohfeldian Approach to Constitutional Cases

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Vol: 9, Issue: 1

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Morse, H. Newcomb
Newcomb Hohfeld; constitution; constitutional law; Constitutional Law; Law
article description
INFERRED, OR AT THE MOST rebuttably presumed, is a slight acquaintanceship on the part of the reader with the work on jural opposites and jural correlatives by Professor W. Newcomb Hohfeld. The Founding Fathers, as though anticipating the coming of the Messianic logician, used all of the four Hohfeldian gravamen terms-rights, privileges, powers and immunities-in the Constitution of the United States,' and for this reason the author perceives a nexus between Hohfeldian logic and constitutional construction. The appropriate initial touchstone for contemporary use of this theory could appear to be the 1968 case of Flast v. Cohen, considering Mr. Justice Harlan's allusions to Hohfeld in his dissenting opinion."