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The Second Founding And Self-Incrimination, William M. Carter Jr.

Northwestern University Law Review

The privilege against self-incrimination is one of the most fundamental constitutional rights. Protection against coerced or involuntary self-incrimination safeguards individual dignity and autonomy, preserves the nature of our adversary system of justice, helps to deter abusive police practices, and enhances the likelihood that confessions will be truthful and reliable. Rooted in the common law, the privilege against self-incrimination is guaranteed by the Fifth Amendment’s Self-Incrimination and Due Process Clauses. Although the Supreme Court’s self-incrimination cases have examined the privilege’s historical roots in British and early American common law, the Court’s jurisprudence has overlooked an important source of historical evidence: the …

Voter Due Process And The "Independent" State Legislature, Michael P. Bellis

Northwestern University Law Review

In a series of opinions surrounding the 2020 presidential election, multiple U.S. Supreme Court Justices broke from precedent to signal support of the “independent state legislature theory” (ISLT), a formerly obscure interpretation of state legislatures’ power over the administration of federal elections. Proponents of the ISLT allege that the U.S. Constitution grants state legislatures plenary power in federal election contexts—including the power to discount ballots, redraw legislative maps, or appoint alternative slates of presidential electors. Although the Court denied certiorari in each case, across the denials four current Justices dissented because they considered the ISLT to be a proper interpretation …

Rationalizing Rational Basis Review, Todd W. Shaw

Northwestern University Law Review

As a government attorney defending economic legislation from a constitutional challenge under the Fourteenth Amendment—How would you rate your chances of success? Surely excellent. After all, hornbook constitutional law requires only the assembly of a flimsy underlying factual record for economic legislation to pass rational basis review.

But the recent uptick in courts questioning the credibility of legislative records might give pause to your optimism. As a growing body of scholarship has identified, the Supreme Court and federal courts of appeals increasingly invalidate laws under rational basis review despite the presence of an otherwise constitutionally sufficient legislative record. Under this …

Due Process Abroad, Nathan S. Chapman

Northwestern University Law Review

Defining the scope of the Constitution’s application outside U.S. territory is more important than ever. In February, the Supreme Court heard oral argument about whether the Constitution applies when a U.S. officer shoots a Mexican teenager across the border. At the same time, federal courts across the country scrambled to evaluate the constitutionality of an Executive Order that, among other things, deprived immigrants of their right to reenter the United States. Yet the extraterritorial reach of the Due Process Clause—the broadest constitutional limit on the government’s authority to deprive persons of “life, liberty, or property”—remains obscure.

Up to now, scholars …

Originalism And Loving V. Virginia, Steven G. Calabresi, Andrea Matthews

Faculty Working Papers

This article makes an originalist argument in defense of the Supreme Court's holding in Loving v. Virginia that antimiscegenation laws are unconstitutional. This article builds on past work by Professor Michael McConnell defending Brown v. Board of Education on originalist grounds and by Professor Calabresi defending strict scrutiny for gender classifications on originalist grounds. Professor Calabresi's work in this area was defended and praise recently by Slate magazine online. The article shows that Loving v. Virginia is defensible using the public meaning originalism advocated for by Justices Antonin Scalia and Clarence Thomas. This article shows that the issue in Loving …

Partiality And Disclosure In Supreme Court Opinions, Robert F. Nagel

Northwestern Journal of Law & Social Policy

This Essay begins by identifying the various kinds of partiality the Justices of the Supreme Court can have in the cases they decide. Although there is widespread recognition of the influence these biases might have, for the most part the Justices continue to write opinions as if they (and other judges) were entirely disinterested. This practice is often thought to be justified as a source of judicial legitimacy, but there are a number of reasons to doubt that a pretense of impersonality is actually important for maintaining respect for the Court. Consequently, the possibility has to be considered that the …