Digital Commons Network^™

December 29, 2019: Secular Responses To Anti-Semitic Violence, Bruce Ledewitz

Hallowed Secularism

Blog post, “Secular Responses to anti-Semitic Violence“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Nancy Pelosi Is Defending The Constitution With Her Actions, Edward A. Purcell Jr.

Other Publications

This post originally appeared on https://thehill.com/opinion/judiciary/476021-nancy-pelosi-is-defending-the-constitution-with-her-actions

December 25, 2019: Christmas 2019, Bruce Ledewitz

Hallowed Secularism

Blog post, “Christmas 2019“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

December 22, 2019: Light In This Dark Season, Bruce Ledewitz

Hallowed Secularism

Blog post, “Light in this Dark Season“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

December 17, 2019: Today's Column On Hate Speech In The Pennsylvania Capital-Star, Bruce Ledewitz

Hallowed Secularism

Blog post, “Today's column on hate speech in the Pennsylvania Capital-Star“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Think We’Re Powerless Against Hate Speech? The Constitution Provides Plenty Of Room To Address It, Bruce Ledewitz

Newspaper Columns

Collected biweekly contributions to the Pennsylvania Capital-Star, a nonpartisan, nonprofit news site.

Let Locked-Up People Vote: Prisoners Are Still Citizens And Should Be Able To Exert Their Civic Rights, Rachel Landy

Online Publications

The Constitution does not guarantee all citizens the right to vote. Rather, the right to vote is implied through a patchwork of amendments that restrict how voting rights may be limited. For example, the 15th Amendment reads “[t]he right of citizens of the United States to vote shall not be denied or abridged...on account of race, color, or previous condition of servitude.” Subsequent amendments added gender, failure to pay poll taxes, literacy, and age over 18 to the list of characteristics for which denying the right to vote may not be based.

December 7, 2019: Churchill Champions Free Trade And Castigates Republican Tariffs As Secular, Bruce Ledewitz

Hallowed Secularism

Blog post, “Churchill Champions Free Trade and Castigates Republican Tariffs as Secular“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

The Constitutional Case For "Red Flag" Laws, Timothy Zick

Popular Media

No abstract provided.

December 4, 2019: A Good Day For The Rule Of Law, Bruce Ledewitz

Hallowed Secularism

Blog post, “A Good Day for the Rule of Law“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Calif. Supreme Court Right To Strike Down Law Requiring Trump To Release Tax Returns To Get On The Ballot, Bruce Ledewitz

Newspaper Columns

Collected biweekly contributions to the Pennsylvania Capital-Star, a nonpartisan, nonprofit news site.

The Special Norms Thesis: Why Congress's Constitutional Decision-Making Should Be Disciplined By More Than The Usual Norms Of Politics, Mark Rosen

All Faculty Scholarship

No abstract provided.

Educational Gerrymandering: Money, Motives, And Constitutional Rights, Derek Black

Faculty Publications

Public school funding plummeted following the Great Recession and failed to recover over the next decade, prompting strikes and protests across the nation. Courts did almost nothing to stop the decline. While a majority of state supreme courts recognize a constitutional right to an adequate or equal education, they increasingly struggle to enforce the right. That right could be approaching a tipping point. Either it evolves, or risks becoming irrelevant.

In the past, courts have focused almost exclusively on the adequacy and equity of funding for at-risk students, demanding that states provide more resources. Courts have failed to ask the …

The Case Against Expanding Defamation Law, Yonathan A. Arbel, Murat C. Mungan

Faculty Scholarship

It is considered axiomatic that defamation law protects reputation. This proposition—commonsensical, pervasive, and influential—is faulty. Underlying this fallacy is the failure to appreciate audience effects: the interaction between defamation law and members of the audience.

Defamation law seeks to affect the behavior of speakers by making them bear a cost for spreading untruthful information. Invariably, however, the law will also affect members of the audience, as statements made in a highly regulated environment tend to appear more reliable than statements made without accountability. Strict defamation law would tend to increase the perceived reliability of statements, which in some cases can …

Lawful Searches Incident To Unlawful Arrests: A Reform Proposal, Mark A. Summers

Faculty Scholarship

No abstract provided.

The President And Nuclear Weapons: Authorities, Limits, And Process, Mary B. Derosa, Ashley Nicolas

Georgetown Law Faculty Publications and Other Works

There is no more consequential decision for a president than ordering a nuclear strike. In the Cold War, the threat of sudden nuclear annihilation necessitated procedures emphasizing speed and efficiency and placing sole decision-making authority in the president’s hands. In today’s changed threat environment, the legal authorities and process a U.S. president would confront when making this grave decision merit reexamination. This paper serves as a resource in the national discussion about a president’s legal authority and the procedures for ordering a nuclear strike, and whether to update them.

November 28, 2019: Happy Thanksgiving, Bruce Ledewitz

Hallowed Secularism

Blog post, “Happy Thanksgiving“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

November 22, 2019: What Is The Point Of This Column?, Bruce Ledewitz

Hallowed Secularism

Blog post, “What is the Point of this Column?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

About Those Constitutional Norms, Mr. Attorney General, Deborah Pearlstein

Online Publications

Among the many jaw-dropping moments in Attorney General Bill Barr’s address to the Federalist Society last Friday was the assertion that he had been unable to glean from his “friends on the other side” any clear answer as to what constitutional norms President Donald Trump was really breaching.

Let History Repeat Itself: Solving Originalism's History Problem In Interpreting The Establishment Clause, Neil Joseph

Duke Journal of Constitutional Law & Public Policy Sidebar

The Supreme Court's Establishment Clause jurisprudence is all over the place. The current justices have widely divergent views on the Establishment Clause's meaning, and the Lemon test has been widely panned by several justices. Originalist judges, however, have had a fairly consistent approach to interpreting the Establishment Clause. This largely stems from their reliance on history. This Note argues that their use of history in analyzing the Establishment Clause is flawed. Originalist Establishment Clause jurisprudence has been and is criticized for being unprincipled. And those criticisms are correct. Originalists encounter such criticism because the justices struggle to reconcile historical practice …

November 19, 2019: Court-Packing, Bruce Ledewitz

Hallowed Secularism

Blog post, “Court-Packing“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

November 14, 2019: What’S Wrong With Impeachment, Bruce Ledewitz

Hallowed Secularism

Blog post, “What’s Wrong With Impeachment“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Replaying The Past: Roles For Emotion In Judicial Invocations Of Legislative History, And Precedent, Emily Kidd White

Articles & Book Chapters

Legal reasoning in the common law tradition requires judges to draw on concepts, and examples that are meant to resonate with a particular emotional import and operate in judicial reasoning as though they do. Judicial applications of constitutional rights are regularly interpreted by reference to past violations (either through precedent, contextual framings, and/or legislative history), which in turn elicit a series of emotions which work to deepen and intensify judicial understandings of a right guarantee (freedom of association, freedom of expression, equality, security of the person, etc.). This paper examines the way in which invocations of past political histories, and …

November 7, 2019: The Politics Of Carl Schmidt Versus The Politics Of Abraham Lincoln, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Politics of Carl Schmidt versus the politics of Abraham Lincoln“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

A Literary Lens Into Constitutional Interpretation And A Possible Synthesis Of Natural And Positive Law: The Silmarillion, Charles Edward Andrew Lincoln Iv

Student Scholarship

The nature of identity in the United States lies in the Constitution. Perhaps this is due to “veneration” of the document. It has also been argued that the Declaration of Independence holds a seminal role in the American identity.

The rift seems to occur with the concept of a “living constitution,” whereby the concept of an ever-evolving jurisprudence allows for an evolving interpretation of the Constitution as society changes.

This rift can be demonstrated by the world of J.R.R. Tolkien. In The Lord of the Rings and Silmarillion, the various languages of groups of Middle Earth represent and have distinct …

The Implications Of Environmental Law And Latino Property Rights On Modern-Age Border Security: Rejecting A Physical Border And Embracing A Virtual Wall, Kevin Hernandez

Student Scholarship

For many, the construction of a physical border is a rational solution to national security concerns at the southern border. However, there is much evidence indicating that the negative impacts of building a physical border wall far outweigh its benefits. Particularly, the border region’s eco-systems have much to lose in the form of extinctions, biodiversity reduction, and critical habitat destruction. On top of that, a number of Latino communities would be the victims of various eminent domain claims that would strip them of land that, in many cases, has been in their family for multiple gener- ations. The broad, almost …

Contracting For Fourth Amendment Privacy Online, Wayne A. Logan, Jake Linford

Scholarly Publications

No abstract provided.

The Due Process And Other Constitutional Rights Of Foreign States, Ingrid W. Brunk

Vanderbilt Law School Faculty Publications

The rights offoreign states under the US. Constitution are becoming more important as the actions offoreign states andforeign state-owned enterprises expand in scope and the legislative protections to which they are entitled contract. Conventional wisdom and lower court cases hold that foreign states are outside our constitutional order and that they are protected neither by separation ofpowers nor by due process. As a matter ofpolicy, however, it makes little sense to afford litigation-related constitutional protections to foreign corporations and individuals but to deny categorically such protections to foreign states. Careful analysis shows that the conventional wisdom and lower court cases …

Fourth Amendment Textualism, Jeffrey Bellin

Faculty Publications

The Fourth Amendment’s prohibition of “unreasonable searches” is one of the most storied constitutional commands Yet after decades of Supreme Court jurisprudence, a coherent definition of the term “search” remains surprisingly elusive Even the justices know they have a problem Recent opinions only halfheartedly apply the controlling “reasonable expectation of privacy” test and its wildly unpopular cousin, “third-party doctrine,” with a few justices in open revolt.

These fissures hint at the Court’s openness to a new approach Unfortunately, no viable alternatives appear on the horizon The justices themselves offer little in the way of a replacement And scholars’ proposals exhibit …

Why Robert Mueller’S Appointment As Special Counsel Was Unlawful, Gary S. Lawson, Steven Calabresi

Faculty Scholarship

Since 1999, when the independent counsel provisions of the Ethics in Government Act expired, the Department of Justice (“DOJ”) has had in place regulations providing for the appointment of Special Counsels who possess “the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney.” Appointments under these regulations, such as the May 17,2017 appointment of Robert S. Mueller to investigate the Trump campaign, are patently unlawful, for three distinct reasons.

First, all federal offices must be “established by Law,” and there is no statute authorizing such an office in the DOJ. We conduct …