Digital Commons Network^™

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.

Public Rights, Private Privileges, And Article Iii, John Harrison

Georgia Law Review

PUBLIC RIGHTS, PRIVATE PRIVILEGES, AND ARTICLE III John Harrison* This Article addresses the constitutional justification for adjudication by executive agencies that rests on the presence of a public right. The public rights rationale originated in the nineteenth century and was for many decades the dominant explanation for the performance of adjudicative functions by executive agencies. The U.S. Supreme Court most recently relied on that rationale in Oil States Energy Services v. Greene’s Energy Group in 2018. In light of the Court’s interest in the nineteenth century system, this Article explores that system in depth and seeks to identify the ways …

Dimensions Of Delegation, Cary Coglianese

All Faculty Scholarship

How can the nondelegation doctrine still exist when the Supreme Court over decades has approved so many pieces of legislation that contain unintelligible principles? The answer to this puzzle emerges from recognition that the intelligibility of any principle dictating the basis for lawmaking is but one characteristic defining that authority. The Court has acknowledged five other characteristics that, taken together with the principle articulating the basis for executive decision-making, constitute the full dimensionality of any grant of lawmaking authority and hold the key to a more coherent rendering of the Court’s application of the nondelegation doctrine. When understood in dimensional …

What Can Brown Do For You?: Addressing Mccleskey V. Kemp As A Flawed Standard For Measuring The Constitutionally Significant Risk Of Race Bias

Erwin Chemerinsky

This Essay asserts that in McCleskey v. Kemp, the Supreme Court created a problematic standard for the evidence of race bias necessary to uphold an equal protection claim under the Fourteenth Amendment of the U.S. Constitution. First, the Court’s opinion reinforced the cramped understanding that constitutional claims require evidence of not only disparate impact but also discriminatory purpose, producing significant negative consequences for the operation of the U.S. criminal justice system. Second, the Court rejected the Baldus study’s findings of statistically significant correlations between the races of the perpetrators and victims and the imposition of the death …

Due Process Supreme Court Appellate Division Third Department

Touro Law Review

No abstract provided.

July 19, 2019: Justice Stevens R.I.P., Bruce Ledewitz

Hallowed Secularism

Blog post, “Justice Stevens R.I.P.“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

The Trump Travel Ban: Rhetoric Vs Reality, Jeffrey F. Addicott

Faculty Articles

President Trump's "Muslim ban" set the nation afire with debate. Opponents to the ban were motivated by the President's underlying motivations. Three iterations of the travel ban were struck down by lower courts. Before the Supreme Court, however, the travel ban was upheld. First, the plain language of § 1182(f) granted broad discretion to the President. Second, it did not violate the prohibition of discrimination against selected categories in § 1152(a)(1)(A). Finally, it failed to violate the Establishment Clause because it is facially legitimate, satisfying rational basis review. The Court found no facial evidence demonstrating discriminatory bias.

Masterpiece Cakeshop And The Future Of Religious Freedom, Mark L. Movsesian

Faculty Publications

Last term, the Supreme Court decided Masterpiece Cakeshop, one of several recent cases in which religious believers have sought to avoid the application of public accommodations laws that ban discrimination on the basis of sexual orientation. The Court’s decision was a narrow one that turned on unique facts and did relatively little to resolve the conflict between anti-discrimination laws and religious freedom. Yet Masterpiece Cakeshop is significant, because it reflects broad cultural and political trends that drive that conflict and shape its resolution: a deepening religious polarization between the Nones and the Traditionally Religious; an expanding conception of equality that …

June 23, 2019: All The Justices Get Religion Wrong Again, Bruce Ledewitz

Hallowed Secularism

Blog post, “All the Justices Get Religion Wrong Again“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

June 22, 2019: What The Supreme Court Should Have Said, But Didn't, In The Maryland Cross Case, Bruce Ledewitz

Hallowed Secularism

Blog post, “What the Supreme Court Should Have Said, But Didn't, in the Maryland Cross Case“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Equality Opportunity And The Schoolhouse Gate, Derek Black, Michelle Adams

Faculty Publications

Public schools have generated some of the most far-reaching cases to come before the Supreme Court. They have involved nearly every major civil right and liberty found in the Bill of Rights. The cases are often reflections of larger societal ills and anxieties, from segregation and immigration to religion and civil discourse over war. In that respect, they go to the core of the nation’s values. Yet constitutional law scholars have largely ignored education law as a distinct area of study and importance.

Justin Driver’s book cures that shortcoming, offering a three-dimensional view of how the Court’s education law jurisprudence …

Public Financing Of Elections In The States, Nicholas Meixsell

Honors Theses

In the US, there is a history of the courts striking down campaign finance reform measures as unconstitutional. As such, there are few avenues remaining for someone who is interested in 'clean government' reforms. One such avenue is publicly financed elections, where the state actually provides funding for campaigns. These systems can be quite varied in the restrictions and contingencies they attach to the money, and for examples one has to look no further than the states There are many states that have some form of public financing for elections, and by looking at the different states' systems we are …

Originalism And Second-Order Ipse Dixit Reasoning In Chisholm V. Georgia, D.A. Jeremy Telman

Cleveland State Law Review

This Article presents a new perspective on the Supreme Court’s constitutional jurisprudence during the Early Republic. It focuses on what I am calling second-order ipse dixit reasoning, which occurs when Justices have to decide between two incommensurable interpretive modalities. If first-order ipse dixit is unreasoned decision-making, second-order ipse dixit involves an unreasoned choice between or among two or more equally valid interpretive options. The early Court often had recourse to second-order ipse dixit because methodological eclecticism characterized its constitutional jurisprudence, and the early Court established no fixed hierarchy among interpretive modalities.

Chisholm, the pre-Marshall Court’s most important constitutional decision, illustrates …

May 15, 2019: What Impeachment And Court-Packing Have In Common, Bruce Ledewitz

Hallowed Secularism

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

The President, Foreign Policy, And War Powers: A Survey On The Expansion And Setbacks Of Presidential Power, Michael W. Wilt

Channels: Where Disciplines Meet

How powerful is the President of the United States in the arena of foreign policy? This question has opened many discussions, and hotly contested debates as to the extent of the president’s actual power. To make matters more complicated, the United States’ foreign policy has developed and evolved over the course of the United States’ more than two-hundred years history. These foreign policy concerns and international conflicts have mired the presidency into debates and consistent trials over the constitutional extent of the presidency, specifically concerning presidential war powers. Moreover, the Presidents have varied in their approaches to each of these …

April 14, 2019: Two Cases Of Independence--The Court And The Fed--And What They Tell Us About American Nihilism, Bruce Ledewitz

Hallowed Secularism

Blog post, “ Two Cases of Independence--the Court and the Fed--and What They Tell Us About American Nihilism“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

In This Issue, What Would Justice Brennan Say To Justice Thomas?, Stephen Wermiel

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Reshaping American Jurisprudence In The Trump Era - The Rise Of Originalist Judges, Jeffrey F. Addicott

Faculty Articles

One of the factors that is often cited as a key reason why President Donald J. Trump was elected as the forty-fifth president, was his pledge to the American people to "make America great again" by appointing "conservative judges" to the bench, particularly when it came to filling any vacancies that might open on the United States Supreme Court. Since the never ending fight for securing an ideological majority on the Supreme Court is always viewed with great concern by both political parties, many wondered whether then candidate Trump was simply telling potential voters what they wanted to hear, or …

Judicial Review And Constitutional Interpretation In Afghanistan: A Case Of Inconsistency, Shoaib Timory

Loyola of Los Angeles International and Comparative Law Review

No abstract provided.

March 17, 2019: The Response To My Anti-Court-Packing Message, Bruce Ledewitz

Hallowed Secularism

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

February 23, 2019: Opening Of The Memphis Talk On Court-Packing, Bruce Ledewitz

Hallowed Secularism

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

March 21, 2019: My Op-Ed On The Bladesnburg Cross, Bruce Ledewitz

Hallowed Secularism

Blog post, “ My op-ed on the Bladesnburg Cross“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

John Quincy Adams Influence On Washington’S Farewell Address: A Critical Examination, Stephen Pierce

Undergraduate Research

John Quincy Adams is seen by the American public today as a failed one-term president. When one starts to see his diplomatic work and his service in Congress, however, he becomes one of the most important figures in American history. The diplomatic historian Samuel Flagg Bemis was in 1944 the first historian to suggest that Adams’ early writings influenced Washington’s Farewell Address. He looked through some of Adams’ early published writings and concluded that it was, “Conspicuous among the admonitions of the Farewell Address are: (1) to exalt patriotically the national words, America, American, Americans; (2) to beware of foreign …

There Is No Such Thing As Freedom Of Religion: How Constitutional Law Complicates The Divide Between Church And State, Annah Mae Heckman

Senior Projects Spring 2019

Senior Project submitted to The Division of Social Studies of Bard College.

Republicans And The Voting Rights Act, Michael T. Morley

Scholarly Publications

No abstract provided.

Christian Legislative Prayers And Christian Nationalism, Caroline Mala Corbin

Articles

No abstract provided.

State Constitutional General Welfare Doctrine, Gerald S. Dickinson

Articles

It is black-letter law that the U.S. Supreme Court’s takings doctrine presupposes exercises of eminent domain are in pursuit of valid public uses that require just compensation. But, neither federal doctrine nor the text of the Takings Clause offers any additional constraints. The story of the Supreme Court’s takings jurisprudence is, in other words, incomplete and deserves reexamination. However, the usual protagonists, such as the Supreme Court or federal courts, are not central to this Article’s reexamination. Instead, this Article’s narrative is federalism, its characters are state courts, and its script is state constitutions.

In the post-Kelo v. New London …

Justice Jackson In The Jehovah's Witnesses' Cases, John Q. Barrett

Faculty Publications

(Excerpt)

I will address Justice Jackson and Jehovah’s Witnesses in four parts. First, I will begin with Robert Jackson himself, introducing the man who became a Supreme Court Justice, and who came to author Barnette and at least one other very notable opinion in a Jehovah’s Witness case. Second, I will turn to the Barnette case in its Supreme Court legal context, which turns out to be two Court terms, 1941–42 and 1942–43, of many Jehovah’s Witnesses cases. These cases produced a run of Court decisions that are a framework surrounding Barnette, and thus understanding them is important to …

Passive Avoidance, Anita S. Krishnakumar

Faculty Publications

In its nascent years, the Roberts Court quickly developed a reputation—and drew sharp criticism—for using the canon of constitutional avoidance to rewrite statutes in controversial, high-profile cases. In recent years, however, the Court seems to have taken a new turn, quietly creating exceptions or reading in statutory conditions in order to evade potentially serious constitutional problems without expressly discussing the constitutional issue or invoking the avoidance canon. In fact, the avoidance canon seems largely, and conspicuously, missing from many cases decided during the Court’s most recent Terms, playing a significant role in justifying the Court’s construction in only one majority …

How To Get Away With Murder: The “Gay Panic” Defense, Omar T. Russo

Touro Law Review

No abstract provided.