Digital Commons Network^™

Corporate Constituents: Corporations Have More Influence On The Federal Government Than Real People Under Current U.S. Campaign Finance Regulations, Colin Schoell

UC Law Constitutional Quarterly

No abstract provided.

Should The Power Of Presidential Pardon Be Revised?, Budd N. Shenkin, David I. Levine

UC Law Constitutional Quarterly

No abstract provided.

Rethinking Constitutional Interpretation To Affirm Human Rights And Dignity, Vincent J. Samar

UC Law Constitutional Quarterly

No abstract provided.

Masthead

UC Law Constitutional Quarterly

No abstract provided.

Releasing The 1040, Not So Ez Constitutional Ambiguities Raised By State Laws Mandating Tax Return Release For Presidential Candidates, Matthew M. Ryan

UC Law Constitutional Quarterly

No abstract provided.

The Unconstitutional Prosecution Of Asylum-Seeking Parents Under Trump’S Family Separation, Sergio Garcia

UC Law Constitutional Quarterly

President Donald Trump’s policy of separating families at the border, known as Trump’s “Zero Tolerance Policy,” was piloted in El Paso, Texas in 2017. Under Trump’s policy, the government separates asylum-seeking parents from their children in order to create “unaccompanied minors” and then prosecute parents. Trump’s policy is standard practice along the nation’s southern border. However, Trump’s prosecution and conviction of asylum–seeking parents violate the constitutional criminal law principles and constitute outrageous government conduct. For example, consider the cases of asylum-seeking parents Elba Luz Dominguez–Portillo, Natividad Zavala–Zavala, Jose Francis Yanes–Mancia, Blanca Nieve Vasquez– Hernandez, and Maynor Alonso Claudino–Lopez (collectively referred …

The Immigration Crisis In American Courts: Children Representing Themselves, Wendy Melissa Hernandez

UC Law Constitutional Quarterly

No abstract provided.

Abandoned Or Unattended? The Outer Limit Of Fourth Amendment Protection For Homeless Persons’ Property, Tim Donaldson

UC Law Constitutional Quarterly

Homelessness in America has become an epidemic problem. Homeless encampments can be found in public areas of almost every major city, and the resulting accumulation of waste, debris, and other items in those areas presents public health and safety concerns. Many cities have responded to those challenges by periodically clearing or cleaning campsites and must determine, often among tons of materials, what may be collected and discarded. This article reviews the constitutional treatment of abandoned property versus unabandoned property. It proposes guidelines for determining when unattended property left in public areas by homeless persons may be considered abandoned and beyond …

Protecting Native Women From Violence: Fostering State-Tribal Relations And The Shortcomings Of The Violence Against Women Act Of 2013, Dayna Olson

UC Law Constitutional Quarterly

Native American women face violence at astronomically high rates compared to any other ethnic group in the United States. These staggering statistics are laregly the result of conflicting criminal jurisdiction between tribal, state, and federal prosecutors. As a result, crimes of intimate partner violence that take place on tribal reservations often go unpunished, leaving these women with little to no recourse. In 2013, President Obama signed the reauthorization of the Violence Against Women Act. This landmark legislation created the Special Domestic Violence Criminal Jurisdiction, which gave Native American tribes the authority to prosecute a narrow set of non-tribal members for …

Adjudicating Dignity: Judicial Motivations And Justice Kennedy’S Jurisprudence Of Dignity, Allyson C. Yankle, Daniel Tagliarina

UC Law Constitutional Quarterly

Drawing primarily on scholarship concerning legal motivation and the decisionmaking of Supreme Court median justices, we use Justice Kennedy’s opinions as a case study to examine how institutional position on the Supreme Court allows median justices to look beyond policy goals and consider legal goals and motivations in their decision-making. We argue that Kennedy’s unique position on the Court as the median justice allows him to pursue legal considerations, including his seemingly idiosyncratic conception of dignity. Kennedy provides an example of how median justices can use their position to not only pursue policy and political outcomes, but also legal considerations …

British Impeachments (1376 - 1787) And The Preservation Of The American Constitutional Order, Frank O. Bowman Iii

UC Law Constitutional Quarterly

Impeachment is a British invention. It arose as one of a set of tools employed by Parliament in its long contest with the Crown over the reach of the monarch’s authority. British impeachment practice matters to Americans because the Founders’ understanding of British history influenced their decision to include impeachment in the American constitution and their conception of how impeachment fit in a balanced system of ostensibly co-equal branches. The Article traces the evolution of Parliament’s use of impeachment and of the categories of behavior it designated as impeachable. These included: armed rebellion and other overt treasons; common crimes like …

Corpus Evidence Illuminates The Meaning Of Bear Arms, Dennis Baron

UC Law Constitutional Quarterly

In his opinion in District of Columbia v. Heller (2008), the late Justice Antonin Scalia insisted that the phrase “bear arms” did not refer to military contexts in the founding era. An examination of corpus data not available in 2008 clearly shows that founding-era sources almost always use “bear arms“ in an unambiguously military sense. This suggests that the plain, ordinary, natural, and original meaning of bear arms in the eighteenth century was ‘carry weapons in war,’ or in other forms of military or quasi-military action, not in hunting or individual self-defense. Corpus evidence shows as well that the phrases …

A Different Constitutionality For Gun Regulation, Lindsay Schakenbach Regele

UC Law Constitutional Quarterly

District of Columbia v. Heller hinged on the Second Amendment, defining for the first time an individual’s right to own a firearm unconnected with militia use, so long as the firearm is in “common use.” This essay argues that because the government determined which firearms were in “common use” throughout the nation’s early history, the Second Amendment allows regulating the types of weapons available to civilians, and their usage. It uses evidence from Congress, the War Department, and private arms manufacturers to examine the role of the federal government in developing and shaping the firearms industry from the nation’s founding …

The Second Amendment As A Fundamental Right, Timothy Zick

UC Law Constitutional Quarterly

The Second Amendment has been suffering from an inferiority complex. Litigants, scholars, and judges have complained that the right to keep and bear arms is not being afforded the respect and dignity befitting a fundamental constitutional right. They have asserted that on its own terms and relative to rights in the same general class, the Second Amendment is being disrespected, under-enforced, and even orphaned. Reviewing the available evidence, this Article generally rejects secondclass claims as either false or significantly overstated. Many of the claims are based on false premises, including the notion that the Supreme Court and lower courts immediately …

A Triggered Nation: An Argument For Extreme Risk Protection Orders, Caroline Shen

UC Law Constitutional Quarterly

In recent years, the U.S. has experienced an unprecedented number of mass shootings and other gun-related injuries and deaths. In spite of all of this gun violence, there is still an unyielding resistance against the passage of common sense gun laws. Many laws restricting large capacity magazines and gun silencers, for example, are continuously shot down by federal and state courts, and the National Rifles Association and its constituents in Congress continue to hitch their arguments to the decision of the Supreme Court in District of Columbia v. Heller.

In this time of political gridlock, perhaps the best solution is …

Reciprocal Concealed Carry: The Constitutional Issues, William D. Araiza

UC Law Constitutional Quarterly

Legislation introduced in recent congressional sessions would enact some version of “concealed carry reciprocity” for firearms. This legislation would create a regime in which a holder of a concealed firearms carry permit issued by one state can carry a concealed weapon in any state that allows some form of concealed carry. Concealed carry reciprocity legislation raises a complex web of constitutional issues. After Part I of this Article introduces the concept of concealed carry reciprocity, as exemplified by a bill that the House passed in December, 2017, Parts II and III consider those constitutional issues. Part II considers the three …

Meritless Historical Arguments In Second Amendment Litigation, Mark Anthony Frassetto

UC Law Constitutional Quarterly

Since Heller Second Amendment litigation and scholarship has focused in large part on questions about the historical understanding of the Second Amendment. One area where this historical analysis has been especially pronounced is in litigation over the scope of the Second Amendment right outside of the home. Litigants, amici, and scholars fiercely debate the meaning of historical statutes, treatises, and cases, arguing about the scope of the right to carry arms outside of the home at the time of the Second and Fourteenth Amendments’ ratifications. Most law review articles attempt to address difficult or hotly contested legal issues. This is …

A Secret Weapon?: Applying Privacy Doctrine To The Second Amendment, Jody Lyneé Madeira

UC Law Constitutional Quarterly

In the past decade, “gun rights” advocates have attempted to strategically articulate a Second Amendment privacy interest in being free from interference from both governmental actors and private actors with ownership of, access to, or use of firearms. This essay explores why privacy is an appealing framework for these purposes, and how courts have responded to such claims thus far. Part I analyzes privacy as a legal and sociocultural construct, assesses claims that firearms ownership and use are stigmatized, and discusses how privacy doctrine can be a stigma management strategy. Part II examines three cases in which gun rights supporters …

Ghosting In Tax Law: Sunset Provisions And Their Unfaithfulness, Alli Sutherland

UC Law Constitutional Quarterly

Tax is a subject that could easily put many to sleep. It is dense, convoluted, and intimidating. But it also touches practically every American. This note will discuss how the recent tax overhaul by the Trump Administration includes dangerous provisions, called sunset provisions. These sunset provisions, which get their name from how the law expire after a specified date, are dangerous because they constitute a legislative runaround. Rarely, if ever, do these provisions actually expire. Rather, law makers are able to avoid procedural requirements by placing an end date on the law, but then extending the law’s effective date. This …

Waiving Goodbye To First Amendment Protections: First Amendment Waiver By Contract, Brittany Scott

UC Law Constitutional Quarterly

The First Amendment is an embodiment of American freedom and therefore is often considered inviolable. This is a fallacy. First Amendment rights are not absolute and may be waived. The Supreme Court has declined to outline a rule for First Amendment waiver, but the Circuit Courts have filled this gap and adapted the waiver rules from criminal procedure to permit waiver of First Amendment rights by contract. In permitting waiver of First Amendment rights, the Courts give deference to contracts and strain the outer boundaries of First Amendment protections.

The Extraterritorial Reach Of Tribal Court Criminal Jurisdiction, Grant Christensen

UC Law Constitutional Quarterly

Conflicts over the jurisdiction between tribal, state, and federal courts arise regularly due to the nature of overlapping sovereignty. The Supreme Court accepts an average of almost three Indian law cases a year and has decided more than twenty Indian law cases with a jurisdictional focus since 1978. As tribes become wealthier, they are increasingly acquiring new lands outside of their existing reservations. This expansion of territory generates new border zones where state and tribal interests converge. The Sixth Circuit recently decided the first federal appellate case dealing with the inherent criminal powers of tribal court jurisdiction over the conduct …

Kennedy’S Legacy: A Principled Justice, Mitchell N. Berman, David Peters

UC Law Constitutional Quarterly

After three decades on the Supreme Court, Justice Anthony Kennedy enters retirement as, arguably, both its most widely maligned member and its most enigmatic. These distinctions are related, for commentators’ inability to identify any coherent, law-like explanation for Kennedy’s decisions, especially in constitutional disputes, significantly fuels the widespread judgment that no such explanation exists and that he was simply “making it up.” We think the common wisdom largely mistaken. This Article argues that Kennedy’s constitutional decision making reflects a genuine grasp (less than perfect, more than rudimentary) of a coherent and, we think, compelling theory of constitutional law—the account, more …

Filling The Gap In The Efficiency Gap: Measuring Partisan Gerrymandering On A Per-District Basis, Richard E. Finneran, Steven K. Luther

UC Law Constitutional Quarterly

In Gill v. Whitford, the Supreme Court dismissed a challenge to Wisconsin’s state legislative map based upon a lack of standing. While the plaintiffs alleged that the statewide map violated the Equal Protection Clause of the Constitution by being gerrymandered to asymmetrically advantage one political party over the other, the Court held that such allegations were insufficient to state a personal, individualized injury under Article III’s Case or Controversy Clause. Since the plaintiffs had not alleged that their voting power in their particular legislative districts had been diluted, the Court found that the plaintiffs’ complaint stated only a “generalized grievance” …