Digital Commons Network^™

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 …

Gerrymandering And The High Court, Alan E. Garfield

Alan E Garfield

No abstract provided.

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 …

Justice Douglas, Justice O'Connor, And George Orwell: Does The Constitution Compel Us To Disown Our Past, Steven D. Smith

Steven D. Smith

Justice William O. Douglas's majority opinion in Zorach v. Clauson famously asserted that "[w]e are a religious people whose institutions presuppose a Supreme Being." What did Douglas mean, and was he right? More recently, in cases involving the Ten Commandments, the Pledge of Allegiance and other public expressions and symbols, the Supreme Court has said that the Constitution prohibits government from endorsing religion. Can Douglas's "Supreme Being" assertion be reconciled with the "no endorsement" prohibition? And does the more modern doctrine demand that we forget, falsify, or forswear our pervasively religious political heritage? This essay, presented as the William O. …

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 …

The Constitutionality Of The Patient Protection And Affordable Care Act In The Courts Of Appeals, Mel Cousins

Mel Cousins

Having undergone an extensive process of political discussion and debate, the ACA (properly the Patient Protection and Affordable Care Act) is now under intensive legal challenge with over 20 different cases from both states and organizations and individuals having been initiated. The challengers argue that the Act lacks a constitutional basis and/or infringes on their constitutional rights. These cases involve a fascinating intersection of legal, political and policy issues and, regardless of the outcome, will have important implications for the future direction of US health care policy. There have now been four decisions of the courts of appeal on the …

Perfectly Legal To Mandate The Purchase Of Insurance, Alan E. Garfield

Alan E Garfield

No abstract provided.

A Tale Told By A President, Mark A. Graber

Mark Graber

Part I of this essay makes the case for symbolic politics. Presidents often have political reasons for subjecting courts to mere words. Part II makes the case for constitutional hardball.

Consensual Amorous Relationships Between Faculty And Students: The Constitutional Right To Privacy, Elisabeth A. Keller

Elisabeth Keller

Surveys of college students in the United States revealed that a significant number of students thought they had been victims of some form of sexual harassment. Growing awareness of the magnitude, dimensions, and effects of sexual harassment at educational institutions and the potential for institutional liability have prompted educators to adopt policies to avert such problems. The policies typically prohibit sexual harassment of employees and students and alert the university community to the serious effects of sexual harassment and the potential for student exploitation. Some universities have gone beyond establishing regulations directed at widely litigated problems of sexual harassment and …

Gps Tracking And The Fourth Amendment, Alan E. Garfield

Alan E Garfield

No abstract provided.

The Better Part Of Valor: The Real Id Act, Discretion, And The “Rule” Of Immigration Law, Daniel Kanstroom

Daniel Kanstroom

This article considers the problems raised by a federal law--the “REAL ID Act”--that seeks to preclude judicial review of discretionary immigration law decisions. Discretion, the flexible shock absorber of the administrative state, must be respected by our legal system. However, as Justice Felix Frankfurter once wrote, discretion is, “only to be respected when it is conscious of the traditions which surround it and of the limits which an informed conscience sets to its exercise.” The article suggests that judicial construction of the REAL ID Act will plumb the deep meaning of this qualification. The new law states, essentially, that constitutional …

A Comment On "Legisprudence", Vlad F. Perju

Vlad Perju

No abstract provided.

Cosmopolitanism And Constitutional Self-Government, Vlad F. Perju

Vlad Perju

This paper, which was selected for presentation at the 2010 Yale/Stanford Junior Faculty Forum, articulates the theoretical steps by which self-government in a free community of equals leads constitutional analysis outside the boundaries of that political community. Openness to the experiences in self-government of other peoples is commonly assumed to undermine political legitimacy by loosing citizens’ control over their political fate. But is it possible that such openness might in fact render that control more effective? Could it actually enhance political and constitutional legitimacy? This paper articulates and defends the following claims: 1) The legitimacy of a political order is …

In Defense Of Judicial Prudence, Nicholas Buccola, Aila Wallace

Nicholas Buccola

This essay has two basic aims. First, we want to show that the three major theories of judicial review – majoritarianism, perfectionism, and originalism – have at their core commitments to “cardinal virtues” – temperance, justice, fortitude. In the first part of the essay, we describe each of the cardinal virtues in conjunction with a description of each judicial philosophy and demonstrate how each virtue fits at the center of each philosophy. Second, we want to show how a full appreciation of the cardinal virtues should lead us to endorse “prudentialism” as the best approach to judicial review in the …

Friendly Fire Casualties Of American Civil Liberty In The War On Terror: Humanitarian Law Project V. Holder And The Erosion Of Free Speech, Alicia C. Armstrong Esq.

Alicia C Armstrong

The holding in Humanitarian Law Project (HLP) v. Holder marks a significant shift in First Amendment doctrine, unprecedented since the early twentieth century “Red Scare” cases. The HLP decision suggests that free speech principles which have been developing for over half a century—culminating in the paramount protection of “subversive advocacy”—are less deserving of adherence in the face of terrorism than in times of relative peace. Throughout the past several decades, the Court has retreated from the notion that speech which is disturbing to public opinion but benign in its capability to incite imminent lawless action deserves lower legal protection. To …

Immigrant Laws, Obstacle Preemption And The Lost Legacy Of Mcculloch, Lauren Gilbert

Lauren Gilbert

Using Congress’ perceived failure to enforce the immigration laws as a backdrop, this paper will explore how the Supreme Court’s recent decision in Chamber of Commerce v.Whiting upholding the Legal Arizona Workers Act exposes some of the tensions and contradictions in modern preemption doctrine. Examining the relationship among express, field, impossibility and obstacle preemption, I explore three emerging trends, all evident in Chamber of Commerce v. Whiting. The first is an increasing reluctance of the Court to find implied obstacle preemption. The second related trend is an inclination to expand the scope of impossibility preemption beyond the physical impossibility cases. …

Bearing Injustice: Foster Care, Pregnancy Prevention, And The Law, Taylor I. Dudley

Taylor I Dudley

The State has numerous responsibilities to children and youth in and emancipating from foster care. Ensuring a foster child’s medical welfare is among the most imperative of the State’s obligations. Pregnancy prevention is a unique component of medical welfare and long-term well-being. Indeed, it stands out as a responsibility that the State must fulfill to counteract the likelihood of diminished life outcomes that so many former foster children face. However, like many problems facing foster children, pregnancy is noticed, yet unaddressed; contemplated, yet unresolved. The State’s failure to adequately address pregnancy prevention among youth in foster care is unconstitutional under …

For Carrying Into Execution The Foregoing Powers: Interpretative Theories Of The Necessary And Proper Clause In Light Of United States V. Comstock, Marianella Medelius

Marianella Medelius

The Necessary and Proper Clause, also known as the Sweeping Clause, is the last of the eighteen enumerated powers granted to Congress under Article I, Section 8 of the Constitution. The clause provides Congress with the ability to make laws necessary and proper to carry out the exercise of its powers. Contrary to what is often believed, the New Deal’s expansion of Congressional powers was not the product of the Supreme Court directly extending the scope of the Commerce Clause. Instead, it was the Court’s liberal interpretation of the Necessary and Proper Clause that enabled the Court to uphold laws …

For Carrying Into Execution The Foregoing Powers. Interpretative Theories Of The Necessary And Proper Clause In Light Of United States V. Comstock, Marianella Medelius

Marianella Medelius

The Necessary and Proper Clause, also known as the Sweeping Clause, is the last of the eighteen enumerated powers granted to Congress under Article I, Section 8 of the Constitution. The clause provides Congress with the ability to make laws necessary and proper to carry out the exercise of its powers. Contrary to what is often believed, the New Deal’s expansion of Congressional powers was not the product of the Supreme Court directly extending the scope of the Commerce Clause. Instead, it was the Court’s liberal interpretation of the Necessary and Proper Clause that enabled the Court to uphold laws …

For Carrying Into Execution The Foregoing Powers: Interpretative Theories Of The Necessary And Proper Clause In Light Of United States V. Comstock, Marianella Medelius

Marianella Medelius

The Necessary and Proper Clause, also known as the Sweeping Clause, is the last of the eighteen enumerated powers granted to Congress under Article I, Section 8 of the Constitution. The clause provides Congress with the ability to make laws necessary and proper to carry out the exercise of its powers. Contrary to what is often believed, the New Deal’s expansion of Congressional powers was not the product of the Supreme Court directly extending the scope of the Commerce Clause. Instead, it was the Court’s liberal interpretation of the Necessary and Proper Clause that enabled the Court to uphold laws …

Harvesting New Conceptions Of Equality: Opportunity, Results, And Neutrality, Cedric M. Powell

Cedric M. Powell

The Supreme Court 1974 Term: Note On Eastland V. United States Servicemen's Fund, James S. Rogers

James S. Rogers

No abstract provided.

Church Autonomy Versus Civil Rights, Alan E. Garfield

Alan E Garfield

No abstract provided.

When The Emperor Has No Clothes Ii: A Proposal For A More Serious Look At “The Weight Of The Evidence”, Carrie Leonetti

Carrie Leonetti

While the Bail Reform Act and state statutes modeled after it command courts to consider the weight of the evidence in making pretrial release/detention decisions, as a practical matter, courts do not do so – at least not when the weight-of-the-evidence factor cuts in favor of release – and they should. In particular, courts should accord substantially more weight to the “weight of the evidence” factor in making or reviewing pretrial-detention determinations when one or more jury has already refused unanimously to convict the defendant of the crime(s) charged. Unless the prosecution has obtained significant, material new evidence between the …

When The Emperor Has No Clothes Ii: A Proposal For A More Serious Look At “The Weight Of The Evidence”, Carrie Leonetti

Carrie Leonetti

While the Bail Reform Act and state statutes modeled after it command courts to consider the weight of the evidence in making pretrial release/detention decisions, as a practical matter, courts do not do so – at least not when the weight-of-the-evidence factor cuts in favor of release – and they should. In particular, courts should accord substantially more weight to the “weight of the evidence” factor in making or reviewing pretrial-detention determinations when one or more jury has already refused unanimously to convict the defendant of the crime(s) charged. Unless the prosecution has obtained significant, material new evidence between the …

The Jurisprudence Of Dignity, Leslie Meltzer Henry

Leslie Meltzer Henry

Few words play a more central role in modern constitutional law without appearing in the Constitution than dignity. The term appears in nearly one thousand Supreme Court opinions, but despite its popularity, dignity is a concept in disarray. Its meaning and functions are commonly presupposed, but rarely articulated. The result is a cacophony of uses so confusing that some critics argue that word ought to be abandoned altogether. This Article fills a void in the literature by offering the first empirical study of Supreme Court opinions that invoke dignity, and then proposing a typology of dignity based on a Wittgensteinian …

Commerce Games And The Individual Mandate, Leslie Meltzer Henry, Maxwell L. Stearns

Leslie Meltzer Henry

While the Supreme Court declined an early invitation to resolve challenges to the Patient Protection and Affordable Care Act (“PPACA”), a recent split between the United States Courts of Appeals for the Sixth Circuit (sustaining the PPACA’s “individual mandate”) and the Eleventh Circuit (striking it down) virtually ensures that the Court will decide the fate of this centerpiece of the Obama Administration’s regulatory agenda. Whatever the Court’s decision, it will likely affect Commerce Clause doctrine- and related doctrines - for years or even decades to come. Litigants, judges, and academic commentators have focused on whether the Court’s “economic activity” tests, …

The Accommodation Of The Shari’A Within Western Legal Systems, Rex J. Ahdar

Rex J Ahdar

The article addresses the highly topical and controversial issue of the accommodation of the Shari'a within Western legal systems. It argues that the issue raises fundamental questions, not only about the nature of shari'a, but also about the liberal-constitutional foundations of 'the West' as we know it. The article closely analyzes and scrutinizes these questions from various historical, philosophical, religious and legal points of view. We conclude that when these matters are properly considered, there is room for a carefully defined accommodation of Shari'a within the legal systems of the West, but with certain important qualifications.

The Constitution And Economic Policy, Alan E. Garfield

Alan E Garfield

No abstract provided.

A Comment On Costs In Constitutional Cases, Iain Field

Iain Field

Professor Patrick Keyzer and Stephen Lloyd SC are both well qualified to speak to the legal principles that govern the determination of costs in constitutional cases, and I am, with respect, happy to accept their combined review of these principles. I do not think that there are any significant disagreements between them in this regard. They have, nevertheless, provided us with two usefully distinct perspectives on the topic, and offered two contrasting views as to the need for special costs rules in constitutional cases. I have only a small number of observations (perhaps it is better to say questions), which …