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Forensic Constitutional Interpretation, Brian F. Havel

Brian Havel

No abstract provided.

Construction, Originalist Interpretation And The Complete Constitution, Richard Kay

Richard Kay

Constitutional Change And Wade's Ultimate Political Fact, Richard Kay

Richard Kay

A Comparison Of The Jurisprudence Of The Ecj And The Efta Court On The Free Movement Of Goods In The Eea: Is There An Intolerable Separation Of Article 34 Of The Tfeu And Article Of 11 Of The Eea?, Jarrod Tudor

Jarrod Tudor

Article 11 of the European Economic Area (“EEA”) and Article 34 of the Treaty on the Functioning of the European Union (“TFEU”) prohibit quantitative restrictions on the free movement of goods. The EEA is monitored by the European Free Trade Area Court (“EFTA Court”) and the TFEU is monitored by the European Court of Justice (“ECJ”). In theory, the EFTA Court and the ECJ should interpret Article 11 and Article 34 in the same manner in order to promote harmonization of the law on the free movement of goods and allow for further economic integration between EFTA and the EU. …

To Furman Or Not To Furman, Robert M. Sanger

Robert M. Sanger

In capital litigation, the United States Supreme Court in Furman v. Georgia and following cases required capital punishment systems to have a form of "narrowing" so that the death penalty was imposed only on the worst of the worst. The death penalty states have failed to successfully implement this concept. As a result, "narrowing" is currently raised in all capital cases by competent defense counsel both at trial and in post conviction litigation. It is raised in addition to all other issues, including issues related to the questions of whether exclusion from the death penalty should be expanded and whether …

An Essay On Christian Constitutionalism: Building In The Divine Style, For The Common Good(S), Patrick Mckinley Brennan

Patrick McKinley Brennan

Theocracy is a matter of growing global concern and therefore of renewed academic interest. This paper answers the following question: "What would a Christian constitution, in a predominantly Christian nation, look like?" The paper was prepared for presentation as the Clark Lecture at Rutgers School of Law (Camden), where papers answering the same question with respect to Jewish and Islamic constitutions and cultures, respectively, were also presented. A Christian constitution would not have as its aim the comparatively anodyne -- and ultimately futile -- business of introducing more "Judeo-Christian values" into the life of the typical nation state. The paper …

The Conservative-Libertarian Turn In First Amendment Jurisprudence, Steven J. Heyman

Steven J. Heyman

Conservative constitutional jurisprudence in the United States has an important libertarian dimension. In recent years, a conservative majority of the Supreme Court has strengthened the constitutional protections for property rights, recognized an individual right to own firearms, imposed limits on the welfare state and the powers of the federal government, cut back on affirmative action, and held that closely held corporations have a right to religious liberty that permits them to deny contraceptive coverage to their female employees. This libertarian streak also can be seen in decisions on freedom of speech and association. In several leading cases, conservative judges have …

Preventing Balkanization Or Facilitating Racial Domination: A Critique Of The New Equal Protection, Darren L. Hutchinson

Darren L Hutchinson

Abstract

Preventing Balkanization or Facilitating Racial Domination: A Critique of the

New Equal Protection

The Supreme Court requires that equal protection plaintiffs prove defendants acted with discriminatory intent. The intent rule has insulated from judicial invalidation numerous policies that harmfully impact racial and ethnic minorities. Court doctrine also mandates that state actors remain colorblind. The colorblindness doctrine has caused the Court to invalidate many policies that were designed to ameliorate the conditions of racial inequality. Taken together, these two equality doctrines facilitate racial domination. The Court justifies this outcome on the ground that the Constitution does not protect “group rights.” …

Interpreting Acronyms And Epithets: Examining The Jurisprudential Significance (Or Lack Thereof), Brian Christopher Jones

Brian Christopher Jones

Given the rise in short title sophistication and their prominent use as evidence in U.S. v. Windsor, this essay argues that acronym short titles are a relatively unexplored interpretive phenomenon. Examining how acronyms should be approached in jurisprudence, the essay further explains how many titles are designed around a symbolic epithet, thus calling into question the interpretative value of such titles. Additionally, the essay touches on the recent NY and D.C. decisions regarding the NSA’s bulk telephony metadata collection system, and how the USA PATRIOT acronym may have played a symbolic (psycholinguistic) role.

The Worst Test Of Truth: The "Marketplace Of Ideas" As Faulty Metaphor, Thomas W. Joo

Thomas W Joo

In his famous dissent in Abrams v. United States, Justice Holmes proclaimed that “the best test of truth is the power of the thought to get itself accepted in the competition of the market.” This Article critiques the basic argument against speech regulation that has developed from the “marketplace of ideas” metaphor: that speech should be “free” because markets are “free,” and because free markets produce “truth.” These assertions about markets are taken for granted, but they portray markets and market regulation inaccurately; thus economic markets provide a poor analogy for the deregulation of speech.

First Amendment jurisprudence invokes the …

Scotus Short Title Turmoil: Time For A Congressional Bill Naming Authority, Brian Christopher Jones

Brian Christopher Jones

This past summer saw the U.S. Supreme Court’s landmark decision in United States v. Windsor, and while the case has generated copious amounts of commentary and scholarship, relatively little attention has been paid to the case’s discussion of bill short titles. Central to the case’s analysis was a dispute over the role of short titles in inferring legislative purpose, and given this dispute, this Remark will argue that it’s time for a Congressional bill naming authority to ensure sensible, descriptive bill names.

New Paths For The Court: Protections Afforded Juveniles Under Miranda; Effective Assistance Of Counsel; And Habeas Corpus Decisions Of The Supreme Court’S 2010/2011 Term, Richard Klein

Richard Daniel Klein

No abstract provided.

The Conflict Between Stare Decisis And Ov Erruling In Constitutional Adjudication, Steven J. Burton

steven J. burton

This article argues that the Constitution constrains the Supreme Court's power to overrule its constitutional precedents. It bases this argument on the Fifth Amendment's Due Process Clause and the conjunction of Marbury v. Madison, Martin v. Hunter's Lessee, Cohens v. Virginia, and the "case or controversy" limit on federal court jurisdiction.

The Conflict Between Stare Decisis And Overruling In Constitutional Adjudication, Steven J. Burton

steven J. burton

There is a near-consensus among Supreme Court Justices and constitutional scholars that there is no significant law, and need not be a law, constraining the Court's power to overrule its constitutional precedents. This Essay/Article argues, to the contrary, that the Court's overruling power should be constitutionally constrained for essentially the same reasons that virtually every other federal government power is constrained. It proposes and defends a constitutional law of overruling.

Deadly Dicta: Roe’S “Unwanted Motherhood”, Gonzales’S “Women’S Regret” And The Shifting Narrative Of Abortion Jurisprudence, Stacy A. Scaldo

Stacy A Scaldo

For thirty-four years, the narrative of Supreme Court jurisprudence on the issue of abortion was firmly focused on the pregnant woman. From the initial finding that the right to an abortion stemmed from a constitutional right to privacy[1], through the test applied and refined to determine when that right was abridged[2], to the striking of statutes found to over-regulate that right[3], the conversation from the Court’s perspective maintained a singular focus. Pro-life arguments focusing on the fetus as the equal or greater party of interest were systematically pushed aside by the Court.[4] The consequences of an unwanted pregnancy, or as …

On Reading And Using The Tenth Amendment, Kathryn Abrams

Kathryn Abrams

No abstract provided.

The Second Amendment´S Fixed Meaning And Multiple Purposes, Thiago L. B. Sturzenegger

Thiago L. B. Sturzenegger

The Second Amendment’s Fixed Meaning and Multiple Purposes

The faith to the Constitution’s textual meaning may provide the interpreter with the ability to perceive the adaptability of a constitutional provision to different social and political contexts. The text of the Constitution refers to principles of law; principles that are indispensable in different ways throughout time. Textualism as a constitutional interpretation model may offer the path to a more versatile Constitution.

To support this statement, this work examines the cases in which the Supreme Court interpreted the Second Amendment to the Constitution. The focal point of interest is the uses of …

The Right To Quantitative Privacy, David Gray, Danielle Citron

David C. Gray

We are at the cusp of a historic shift in our conceptions of the Fourth Amendment driven by dramatic advances in surveillance technology. Governments and their private sector agents continue to invest billions of dollars in massive data-mining projects, advanced analytics, fusion centers, and aerial drones, all without serious consideration of the constitutional issues that these technologies raise. In United States v. Jones, the Supreme Court signaled an end to its silent acquiescence in this expanding surveillance state. In that case, five justices signed concurring opinions defending a revolutionary proposition: that citizens have Fourth Amendment interests in substantial quantities of …

A Shattered Looking Glass: The Pitfalls And Potential Of The Mosaic Theory Of Fourth Amendment Privacy, David Gray, Danielle Citron

David C. Gray

On January 23, 2012, the Supreme Court issued a landmark non-decision in United States v. Jones. In that case, officers used a GPS-enabled device to track a suspect’s public movements for four weeks, amassing a considerable amount of data in the process. Although ultimately resolved on narrow grounds, five Justices joined concurring opinions in Jones expressing sympathy for some version of the “mosaic theory” of Fourth Amendment privacy. This theory holds that we maintain reasonable expectations of privacy in certain quantities of information even if we do not have such expectations in the constituent parts. This Article examines and explores …

Changing The United Kingdom Constitution: The Blind Sovereign, Richard Kay

Richard Kay

The traditional doctrine of the sovereignty of Parliament in the United Kingdom is being transformed. The change is the cumulative result of a series of legislative acts, judicial decisions, statements of officials and academic opinions. This paper is not directed to the extent or to the propriety of this change. It examines rather the process by which it has been effected. In most of the world, wholesale constitutional revision is an event. It takes place in a defined period of time and is the work of an identifiable group of people. The striking thing about the changes in the UK …

The Right To Quantitative Privacy, David C. Gray, Danielle Keats Citron

Danielle Keats Citron

We are at the cusp of a historic shift in our conceptions of the Fourth Amendment driven by dramatic advances in surveillance technology. Governments and their private sector agents continue to invest billions of dollars in massive data-mining projects, advanced analytics, fusion centers, and aerial drones, all without serious consideration of the constitutional issues that these technologies raise. In United States v. Jones, the Supreme Court signaled an end to its silent acquiescence in this expanding surveillance state. In that case, five justices signed concurring opinions defending a revolutionary proposition: that citizens have Fourth Amendment interests in substantial quantities of …

The Constitution As If Consent Mattered, Tom W. Bell

Tom W. Bell

Libertarians do not fit into the left-right spectrum very comfortably; by their own account, they transcend it. This brief paper, written for a Chapman Law Review symposium on libertarian legal theory, argues that libertarians should likewise transcend the dichotomy currently dividing constitutional theory. The Left tends to regard the Constitution as adaptable to current needs and defined by judicial authority; the Right tends to search the historical record for the Constitution’s original meaning. Each of those conventional approaches has its own virtues and vices. Combining the best of both — the responsiveness of living constitutionalism and the textual fidelity of …

A Shattered Looking Glass: The Pitfalls And Potential Of The Mosaic Theory Of Fourth Amendment Privacy, David C. Gray, Danielle Keats Citron

Danielle Keats Citron

On January 23, 2012, the Supreme Court issued a landmark non-decision in United States v. Jones. In that case, officers used a GPS-enabled device to track a suspect’s public movements for four weeks, amassing a considerable amount of data in the process. Although ultimately resolved on narrow grounds, five Justices joined concurring opinions in Jones expressing sympathy for some version of the “mosaic theory” of Fourth Amendment privacy. This theory holds that we maintain reasonable expectations of privacy in certain quantities of information even if we do not have such expectations in the constituent parts. This Article examines and explores …

Book Review - 'The Elements Of Legislation' By Neil Duxbury, Brian Christopher Jones

Brian Christopher Jones

No abstract provided.

Principles Of Contracts For Governing Services, Tom Bell

Tom W. Bell

The state provides governance services within a specified territory, demanding payment in the form of taxes, regulations, and compulsory service. Some citizens expressly consent to that bargain, as when the President of the United States swears to preserve, protect, and defend the Constitution. With regard to many of its subjects, however, the state can claim no more than hypothetical consent, leaving its use of force only weakly justified. Governing services provided under contract, founded in express consent, enjoy a more justified relationship with their citizen-customers. Private institutions already provide the same legal services as the state, offering rules, dispute resolution, …

Enforcing Animal Welfare Statutes: In Many States, It’S Still The Wild West, Elizabeth Rumley, Rusty Rumley

Elizabeth Rumley

Authority to enforce animal welfare laws has been delegated to private citizens involved with humane organizations since the 1880s when the majority of those statutes were originally passed. Currently, over half of the states and the District of Columbia grant some form of law enforcement power to members or officers of humane societies. The authority ranges from the power to arrest to the ability to seize and destroy private property. In some cases it includes the right to carry a firearm-- even, in one state, as a convicted felon-- while engaging in law enforcement activities. After a brief history of …

Moral Limits On Morals Legislation: Lessons For U.S. Constitutional Law From The Declaration On Religious Freedom, Gregory A. Kalscheur S.J.

Gregory A. Kalscheur, S.J.

A persistent American confusion regarding the proper relationship between law and morality is manifest in the opinions in Lawrence v. Texas. The Second Vatican Council’s Declaration on Religious Freedom provides the foundation for an analytical framework that can bring clarity to that confusion. The heart of this framework is the moral concept of public order. This concept offers a principled explanation of both the holding in Lawrence and the limitations the Court placed on that holding. The Court could clarify the confusion manifest in Lawrence by explicitly acknowledging that a state interest only becomes legitimate for purposes of rational basis …

The Hollowness Of The Harm Principle, Steven D. Smith

Steven D. Smith

Among the various instruments in the toolbox of liberalism, the so-called “harm principle,” presented as the central thesis of John Stuart Mill’s classic On Liberty, has been one of the most popular. The harm principle has been widely embraced and invoked in both academic and popular debate about a variety of issues ranging from obscenity to drug regulation to abortion to same-sex marriage, and its influence is discernible in legal arguments and judicial opinions as well. Despite the principle’s apparent irresistibility, this essay argues that the principle is hollow. It is an empty vessel, alluring but without any inherent legal …

The Tenuous Case For Conscience, Steven D. Smith

Steven D. Smith

If there is any single theme that has provided the foundation of modern liberalism and has infused our more specific constitutional commitments to freedom of religion and freedom of speech, that theme is probably “freedom of conscience.” But some observers also perceive a progressive cheapening of conscience– even a sort of degradation. Such criticisms suggest the need for a contemporary rethinking of conscience. When we reverently invoke “conscience,” do we have any idea what we are talking about? Or are we just exploiting a venerable theme for rhetorical purposes without any clear sense of what “conscience” is or why it …

A Comment On "Legisprudence", Vlad F. Perju

Vlad Perju

No abstract provided.