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Self-Evident: Why The Declaration Of Independence Is America’S True Constitution, Chelsea H. Blake

Northwestern Law Journal des Refusés

No abstract provided.

It Is A Constitution We Are Expounding: John Marshall, Spencer Roane, And The Fundamental Conflicts Surrounding Mcculloch V. Maryland (1819), Catherine T. Meisenheimer

Compass: An Undergraduate Journal of American Political Ideas

Using a blend of primary and secondary sources, this research paper examines the lesser-known newspaper debate between Chief Justice John Marshall and Judge Spencer Roane of the Virginia Court of Appeals. The purpose of this research is to answer one question: What were the fundamental issues that divided early Americans as demonstrated by the landmark case of McCulloch v. Maryland (1819)? To contribute to the ongoing discussion of McCulloch and its significance, my paper attempts to understand the issues surrounding McCulloch within its broader, historical context. Instead of confining its importance to the Second Bank of the United States, I …

Federal Law Enforcement Reform: Depoliticization Into A Constitutional Framework To Restore Public Confidence, Christopher J. Boosey

Senior Honors Theses

This thesis proposes that there is a lack of public confidence in federal law enforcement agencies and that this is because these agencies have become political weapons, investigating individuals rather than crimes, in violation of the U.S. Constitution. Following multiple scandals, from the historical targeting of the Civil Rights movement to present attempts to designate parents critical of school administrators as domestic terrorists, wholesale reform of these agencies is urgent. Therefore, this thesis will address the issue of politicization, political corruption, and the lack of adherence to constitutional principles through the problem, significance, and solution method. This thesis will first …

Gone Fishing: Casting A Wide Net Using Geofence Warrants, Ryan Tursi

Washington Law Review

Technology companies across the country receive requests from law enforcement agencies for cell phone location information near the scenes of crimes. These requests rely on the traditional warrant process and are known as geofence warrants, or reverse location search warrants. By obtaining location information, law enforcement can identify potential suspects or persons of interest who were near the scene of a crime when they have no leads. But the use of this investigative technique is controversial, as it threatens to intrude upon the privacy of innocent bystanders who had the misfortune of being nearby when the crime took place. Innocent …

Addiction And Liberty, Matthew B. Lawrence

Faculty Articles

This Article explores the interaction between addiction and liberty and identifies a firm legal basis for recognition of a fundamental constitutional right to freedom from addiction. Government interferes with freedom from addiction when it causes addiction or restricts addiction treatment, and government may protect freedom from addiction through legislation empowering individuals against private actors’ efforts to addict them without their consent. This Article motivates and tests the boundaries of this right through case studies of emergent threats to liberty made possible or exacerbated by new technologies and scientific understandings. These include certain state lottery programs, addiction treatment restrictions, and smartphone …

Response To Professor Dinner, Martha Albertson Fineman

Faculty Articles

I want to thank the Texas A&M Law Review for including my work in this special Issue and express my appreciation to Professor Dinner for her thoughtful comments concerning the evolution of my scholarship. Professor Dinner raises the question of whether that earlier work is relevant to the Dobbs v. Jackson Women’s Health Organization opinion, specifically, and to broader issues of reproductive justice, more generally. For me, Dobbs illustrates—once again—how our American obsession with both individual rights and Supreme Court jurisprudence can distort our sense of the possibilities for achieving social (or reproductive) justice. I see my work as an …

The Ultimate Injustice: States' Failure To Take Steps To Prevent Wrongful Convictions And, When Wrongful Convictions Are Exposed, To Provide Adequate Assistance To Exonerees, Natalie Lahera

FIU Law Review

Among the many rights guaranteed by the Constitution are the rights to a presumption of innocence, equal protection, due process, a speedy trial, a trial by jury, and legal counsel, if indigent and charged with a serious crime. But those rights do not ensure that the justice system succeeds every time. The United States has exonerated over 3,000 individuals since 1989. The exonerees have collectedly lost over 26,700 years of their lives. Each exoneration has provided insight into the causes of wrongful convictions, the issues with current compensation laws, and even the changes that need to be implemented to avoid …

A New Supreme Court Case Threatens Another Body Blow To Our Democracy, Katherine A. Shaw, Leah Litman, Carolyn Shapiro

Online Publications

When the Supreme Court overruled Roe v. Wade, the justices in the majority insisted they were merely returning the issue of abortion to the democratic process. But a case the court has announced it will hear in its October term could make that democratic process a lot less democratic.

Commentary: The Pragmatic Consequentialism Of Justice Breyer, John M. Greabe

Law Faculty Scholarship

[Excerpt] "Justice Stephen Breyer’s announcement of his intention to retire at the end of the Supreme Court’s current term provides occasion to contrast his approach to judging with the very different approach of the court majority he leaves behind. The contrast is frequently explained in partisan terms: Justice Breyer is a “liberal” who was appointed by a Democratic president (Bill Clinton), whereas the majority is “conservative,” having been appointed by three different Republican presidents (George H.W. Bush, George W. Bush, and Donald Trump).

The use of partisan labels to describe the different approaches to judging employed by the court’s two …

Constitutional Rights As Human Rights: Freedom Of Speech, Equal Protection, And The Right Of Privacy, Michael J. Perry

Faculty Articles

Much of my recent scholarly work has addressed questions concerning the political morality - the global political morality of human rights. This essay continues in that vein; I focus on a relationship I began to discuss almost forty years ago, in my first book: the relationship between (some) constitutional rights and (some) human rights. My overarching claim here: There is a significant interface between the constitutional law of the United States and the political morality of human rights. My principal aim in this Essay is to defend (and illustrate) that broad claim by defending three narrower claims:

1. The constitutional …

Towards A Dramaturgical Theory Of Constitutional Interpretation, Jessica Rizzo

Seattle University Law Review

Like legal texts, dramatic texts have a public function and public responsibilities not shared by texts written to be appreciated in solitude. For this reason, the interpretation of dramatic texts offers a variety of useful templates for the interpretation of legal texts. In this Article, I elaborate on Jack Balkin and Sanford Levinson’s neglected account of law as performance. I begin with Balkin and Levinson’s observation that both legal and dramatic interpreters are charged with persuading audiences that their readings of texts are “authoritative,” analyzing the relationship between legal and theatrical authority and tradition. I then offer my own theory …

Taking Justification Seriously: Proportionality, Strict Scrutiny, And The Substance Of Religious Liberty, Stephanie H. Barclay, Justin Collings

Journal Articles

Last term, five Justices on the Supreme Court flirted with the possibility of revisiting the Court’s First Amendment test for when governments must provide an exemption to a religious objector. But Justice Barrett raised an obvious, yet all-important question: If the received test were to be revised, what new test should take its place? The competing interests behind this question have be-come even more acute in light of the COVID-19 pandemic. In a moment rife with lofty rhetoric about religious liberty but riven by fierce debates about what it means in practice, this Article revisits a fundamental question common to …

Constitutional Hinderance, Dena Wake

Helm's School of Government Conference - American Revival: Citizenship & Virtue

According to media outlets, the federal government has become the poster child for “Failure to Help the States” during this present crisis. It is nearly impossible to find an article or news segment that does not blame the federal government for the current pandemic. If the media is correct in blaming the federal government then why doesn’t the federal government just take over all COVID-19 related problems throughout the nation that would make everything easier according to the media. There are countless reasons why the federal government can’t take over, the ultimate reason being the Constitution, the law of the …

The Constitution, Covid-19, And Civil Disobedience: Federalism In Flames And The Slippery Slope To Socialism, Savannah Snyder

Helm's School of Government Conference - American Revival: Citizenship & Virtue

Our Constitution has been devastatingly corrupted from its original design and vision amid the COVID-19 pandemic. Governors usurped authority in the name of crisis mitigation. Our unalienable rights have been macerated and pulverized by droves of executive orders, each delivering a calamitous blow to the integrity of the American republican framework. Socialized medicine is on the horizon as our compliance is coerced. Conventional civil disobedience has been regulatorily revoked. We have succumbed to the decrees of depraved men who maintain that education, religious expression, and pursuits of happiness can be invalidated by whatever transgressions the state deems necessary. For the …

The Varying Interpretations Of The United States Constitution, Joseph Longo

Helm's School of Government Conference - American Revival: Citizenship & Virtue

The laws of these United States of America are in place to remedy the issues within and against American society by ensuring American’s citizens’ rights are protected against other citizens, organizations, and the government itself.[1] America’s founders gave future generations a framework, the supreme law of the land, to guide the path of the country in a way that they saw just.[2] The U.S. Constitution has been the framework for the American government and society for over 200 years to promote the country the founders of the nation had envisioned. The Constitutional debate today is over how this …

The Militia: A Definition And Litmus Test, Marcus Armstrong

St. Mary's Law Journal

The United States Supreme Court, in its decision in Perpich v. Department of Defense, ruled that members of the National Guard are “troops” as that word is used in the Constitution. In doing so, the Court negated a long-standing, but obsolete, definition of the militia. However, this move away from an obsolete definition of the militia posed considerable difficulties that the Court was unable to rectify in its Perpich decision. In this Article, the author hopes to help rectify these difficulties by proposing four necessary characteristics that define the militia: first, the militia is a military force; second, the …

Increasing Substantive Fairness And Mitigating Social Costs In Eviction Proceedings: Instituting A Civil Right To Counsel For Indigent Tenants In Pennsylvania, Robin M. White

Dickinson Law Review (2017-Present)

The U.S. Constitution provides criminal defendants the right to a court-appointed attorney but gives no similar protection to civil litigants. Although federal law does not supply any categorical rights to counsel for civil litigants, all 50 states have instituted the right in at least one category of civil law that substantially impacts individuals’ rights. Since 2017, several U.S. cities have enacted such a right for tenants facing eviction. In so doing, these cities responded to American families’ increasing rent burden, the recent publication of nationwide eviction data, the sociological research concerning the impact of eviction, and the lack of procedural …

Greenbacks, Consent, And Unwritten Amendments, John M. Bickers

Arkansas Law Review

I remember a German farmer expressing as much in a few words as the whole subject requires: “money is money, and paper is paper.”—All the invention of man cannot make them otherwise. The alchymist may cease his labours, and the hunter after the philosopher’s stone go to rest, if paper cannot be metamorphosed into gold and silver, or made to answer the same purpose in all cases. Every day Americans spend paper money, using it as legal tender. Yet the Constitution makes no mention of this phenomenon. Indeed, it clearly prevents the states from having the authority to make paper …

The Constitution And Democracy In Troubled Times, John M. Greabe

Law Faculty Scholarship

Does textualism and originalism approach positively impact democracy?

How The U.S. Constitution Connects With Covid-19, Richard Henry Seamon

Articles

No abstract provided.

The Fourth Amendment’S Forgotten Free-Speech Dimensions, Aya Gruber

Publications

No abstract provided.

How The Supreme Court Talks About The Press (And Why We Should Care), Helen Norton

Publications

No abstract provided.

An Analysis Of The Competing Views On The Interpretation Of The U.S. Constitution, Joseph Longo

Senior Honors Theses

This thesis will examine the competing interpretations of the United States Constitution and the different effects these interpretations would have on the American government and legal systems. By examining legal precedents and different philosophical views, the varying interpretations will be examined and put through real-world scenarios. The founding of America was over 200 years ago, but philosophical views throughout history shall be used in the understanding of the different interpretations and real-world consequences. The thesis will not claim that one interpretation is proper and the perfect one for the United States, rather it will challenge each view in an attempt …

What Constitution Says About Peaceful Transfer Of Power, John M. Greabe

Law Faculty Scholarship

[excerpt] I recently was asked whether the Constitution requires a peaceful transfer of power following an election. Sadly, the questions is not merely theoretical. President Trump has stated that, if he loses the upcoming election, it will be through fraud. And he has made it clear that he will be unrestrained in his response to any efforts to oust him from office through an election he pronounces fraudulent.

The question of whether the Constitution requires a peaceful transfer of power prompts consideration of how we should conceptualize our Constitution. Is the Constitution merely the document that was written in 1787, …

Scholarship In Review: A Response To David S. Schwartz's The Spirit Of The Constitution: John Marshall And The 200-Year Odyssey Of Mcculloch V. Maryland, Law Review Editors

Arkansas Law Review

We are elated to introduce, and the Arkansas Law Review is honored to publish, this series discussing and applauding David S. Schwartz’s new book: The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland. Schwartz sets forth meticulous research, coupled with unparalleled insight, into the opinion penned by Chief Justice John Marshall and details the winding path Marshall’s words have traveled over the past 200 years. Schwartz argues that the shifting interpretations of McCulloch, often shaped to satisfy the needs of the time, echoes the true spirit of the Constitution.

Preparing The Public For A Contested Election, Deborah Pearlstein

Online Publications

While perhaps once thought too far-fetched to discuss out loud in serious company, concerns that Donald Trump will refuse to leave office even if he loses the November election have gained increasing mainstream attention in recent months. Indeed, it would be foolish to assume that such a possibility is out of the question. The president has spent the past four years making clear his desire to remain more than two terms in office, and has worked especially diligently of late to lay the rhetorical groundwork for declaring the results of the federal election – particularly one reliant on absentee voting …

Why Trump’S Lawyers Should Talk Like Lawyers, Katherine A. Shaw

Online Publications

The Constitution says that what’s happening in the Senate right now is a trial. But it’s no ordinary trial: As we’re all now well aware, a Senate trial is a hybrid affair, part law and part politics.

'It Wasn't Supposed To Be Easy': What The Founders Originally Intended For The Senate's 'Advice And Consent' Role For Supreme Court Confirmation Processes, Michael W. Wilt

Channels: Where Disciplines Meet

The Founders exerted significant energy and passion in formulating the Appointments Clause, which greatly impacts the role of the Senate and the President in appointing Supreme Court Justices. The Founders, through their understanding of human nature, devised the power to be both a check by the U.S. Senate on the President's nomination, and a concurrent power through joint appointment authority. The Founders initially adopted the Senate election mode via state legislatures as a means of insulation from majoritarian passions of the people too. This paper seeks to understand the Founders envisioning for the Senate's 'Advice and Consent' role as it …

Faithful Execution And Article Ii, Andrew Kent, Ethan J. Leib, Jed Handelsman Shugerman

Faculty Scholarship

Article II of the U.S. Constitution twice imposes a duty of faithful execution on the President, who must "take Care that the Laws be faithfully executed" and take an oath or affirmation to 'faithfully execute the Office of President." These Faithful Execution Clauses are cited often, but their background and original meaning have never been fully explored. Courts, the executive branch, and many scholars rely on one or both clauses as support for expansive views of presidential power, for example, to go beyond standing law to defend the nation in emergencies; to withhold documents from Congress or the courts; or …

Controversy And The Death Penalty, Samantha Pineo

Across the Bridge: The Merrimack Undergraduate Research Journal

The Declaration of Independence guarantees a right to life that was given by a creator. The Constitution guarantees a right to life, which can be found in both the explicit text itself as well as in between the lines. After looking at the founding documents through the lens of a moral reading, examining the case law, and reviewing the process of execution itself, it becomes clear that the death penalty violates one’s inalienable right to life, and is, in fact, a cruel and unusual punishment.