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Supreme Court Update: 2012-2013 Term (Civil Cases In Constitutional Law), Wilson Huhn

Wilson R. Huhn

During 2012-2013 the Supreme Court handed down several significant constitutional law, including United States v. Windsor (striking down Section 3 of the federal Defense of Marriage Act) and Shelby County v. Holder (striking down Section 4 of the Voting Rights Act). These and other decisions are summarized in this presentation.

The 2011-2012 Supreme Court Term: Decisions In Constitutional Law, Wilson Huhn

Wilson R. Huhn

This presentation reviews the principal decisions of the Supreme Court in the field of Constitutional Law during the 2011-2012 Term of Court. The presentation primarily focuses on the Court's decisions involving the Arizona immigration law (SB 1070), the federal Stolen Valor Act, the "ministerial exception" to the anti-discrimination laws, and above all the Patient Protection and Affordable Care Act.

Same-Sex Marriage Litigation Update - September 17, 2012, Wilson Huhn

Wilson R. Huhn

Same-sex marriage cases are reaching the federal circuit courts and may be heard by the Supreme Court in the near future. This presentation summarizes the status of same-sex marriage litigation.

The Future Interpretation Of The Constitution As A Result Of The Reelection Of President Barack Obama, Wilson Huhn

Wilson R. Huhn

On November 6, 2012, Barack Obama was reelected President of the United States. What effect will this have on the future interpretation of the Constitution? This article identifies 19 areas of constitutional law that would likely change if one more liberal justice is appointed to the Supreme Court.

The Future Interpretation Of The Constitution, Wilson Huhn

Wilson R. Huhn

On November 6, 2012, Barack Obama was reelected President of the United States. What effect will this have on the future interpretation of the Constitution? This article identifies 19 areas of constitutional law that would likely change if one more liberal justice is appointed to the Supreme Court.

The Growing Acceptance And Legal Recognition Of Same-Sex Marriage In America Constitutes A Victory For Reality-Based Thinking, Wilson Huhn

Wilson R. Huhn

During the 20th century “pragmatism” emerged as the leading American philosophy and policy analysis – also called “legal realism” – became the dominant method of interpreting American law. The lightning speed with which same-sex marriage is gaining acceptance in the United States is due to the fact that Americans embrace realistic rather than ideological forms of thinking, and the growing recognition of same-sex marriage in the law is due to the fact that we interpret our Constitution in accordance with realistic analysis.

The Civil Rights Movement And The Constitution, Wilson Huhn

Wilson R. Huhn

This presentation of March 3, 2012, describes the influence that the Civil Rights Movement has had on the interpretation of the Constitution. The Civil Rights Movement not only broadened our understanding of the principle of equality under Equal Protection, it also expanded opportunities for Freedom of Expression and the Right to Privacy. In addition, the Civil Rights Movement stimulated the courts to recognize the power of Congress to enact legislation under the Commerce Clause and Section 5 of the 14th Amendment. Finally, as a result of the Civil Rights Movement, the Supreme Court has moved to a more realistic, consequentialist …

A Higher Law: Abraham Lincoln's Use Of Biblical Imagery, Wilson Huhn

Wilson R. Huhn

Lincoln’s use of biblical imagery in seven of his works: the Peoria Address, the House Divided Speech, his Address at Chicago, his Speech at Lewistown, the Word Fitly Spoken fragment, the Gettysburg Address, and the Second Inaugural. Lincoln uses biblical imagery to express the depth of his own conviction, the stature of the founders of this country, the timeless and universal nature of the principles of the Declaration, and the magnitude of our moral obligation to defend those principles. Lincoln persuaded the American people to embrace the standard “all men are created equal” and to make it part of our …

Constitutionality Of The Patient Protection And Affordable Care Act Under The Commerce Clause And The Necessary And Proper Clause, Wilson Huhn

Wilson R. Huhn

The Patient Protection and Affordable Care Act is a comprehensive federal statute that attempts to extend health insurance coverage to tens of millions of Americans and to expand health insurance coverage by eliminating exclusions for preexisting conditions, increase medical loss ratios, abolish annual and lifetime limits, and other reforms. A necessary provision of this law (the individual mandate) requires most individuals to maintain health insurance coverage. The individual mandate has been challenged in a number of lawsuits on the ground that Congress lacks the power under the Constitution to require individuals to purchase health insurance. The power of Congress to …

Legacy Of Slaughterhouse. Bradwell, And Cruikshank In Constitutional Interpretation, Wilson Huhn

Wilson R. Huhn

The Slaughterhouse Cases, Bradwell v. Illinois, and Cruikshank v. United States, which were all decided between 1873 and 1876, were the first cases in which the Supreme Court interpreted the 14th Amendment. The reasoning and holdings of the Supreme Court in those cases have affected constitutional interpretation in ways which are both profound and unfortunate. The conclusions that the Court drew about the meaning of the 14th Amendment shortly after its adoption were contrary to the intent of the framers of that Amendment and a betrayal of the sacrifices which had been made by the people of that period. In …

Ten Questions On Gay Rights And Freedom Of Religion, Wilson Huhn

Wilson R. Huhn

In my opinion most of the legal and social problems that arise under the Constitution stem from the belief, held by some people, that they are better than other people. They do not hate anyone. They simply believe that they are superior and that the law ought to treat them better than the other group. This is true of whites who think they are superior to blacks, men who think they are superior to women, and heterosexuals who think they are superior to homosexuals.

People have often justified these types of beliefs by appeal to religion and have attempted to …

Cross Burning A Hate Speech Under The First Amendment To The United States Constitution, Wilson Huhn

Wilson R. Huhn

Under the First Amendment of the Constitution of the United States, ‘hate speech’ is constitutionally protected unless the circumstances of the case indicate that the speaker intended to threaten violence or provoke an immediate act of violence. While a person may be removed from a classroom or fired from employment for engaging in ‘hate speech’, under the First Amendment a person may be charged with a crime only if their statements constitute a threat or provocation of immediate violence. Moreover, even in cases where it is clear that a person is threatening violence or that violence is imminent, the person …

Congress Has The Power To Enforce The Bill Of Rights Against The Federal Government: Therefore Fisa Is Constitutional And The President's Terrorist Surveillance Program Is Illegal, Wilson R. Huhn

Wilson R. Huhn

The principal point of this Article is that Congress has plenary authority to enforce the Bill of Rights against the federal government. Although this precept is a fundamental one, neither the Supreme Court nor legal scholars have articulated this point in clear, simple, and direct terms. The Supreme Court does not have a monopoly on the Bill of Rights. Congress, too, has constitutional authority to interpret our rights and to enforce or enlarge them as against the actions of the federal government.

Congress exercised its power to protect the constitutional rights of American citizens when it enacted the Foreign Intelligence …

Constitutional Jurisprudence Of Sandra Day O'Connor: A Refusal To "Foreclose The Unanticipated", Wilson R. Huhn

Wilson R. Huhn

Earlier this year, Justice Sandra Day O’Connor retired from the Supreme Court of the United States after 25 years of service. It would be difficult to overstate the impact that Justice O’Connor has had on the interpretation of the Constitution during her tenure on the Court. Her importance to the development of American constitutional law stems from her central position on the Supreme Court. Professor Erwin Chemerinsky has described her role in these terms:

O’Connor is in control. In virtually every area of constitutional law, her key fifth vote determines what will be the majority’s position and what will be …

State Action Doctrine And The Principle Of Democratic Choice, Wilson R. Huhn

Wilson R. Huhn

The state action doctrine is somewhat of a mystery to law students, legal scholars, lawyers, and judges. It is a key component of the Fourteenth Amendment--a threshold requirement that must be satisfied before triggering protection of our fundamental rights--but the doctrine itself seems to be curiously without purpose, a collection of arbitrary rules that impede constitutional protection of liberty, equality, and fairness for no good reason. Nearly forty years ago, Professor Charles Black called the state action doctrine “a conceptual disaster area” and characterized scholarly commentary upon it as “a torchless search for a way out of a damp echoing …

Ohio Issue 1 Is Unconstitutional, Wilson R. Huhn

Wilson R. Huhn

This article discusses the constitutionality of Ohio Issue 1, an amendment to the state constitution that was adopted in a referendum by the people of the State of Ohio in November, 2004. The article consists of two parts. Part I sets forth arguments in support of the proposition that Ohio Issue 1 is unconstitutional. Part II sets forth arguments that have been or may be raised in support of Ohio Issue 1, and responds to each of those arguments.

Scienter, Causation, And Harm: The Right-Hand Side Of The Constitutional Calculus, Wilson R. Huhn

Wilson R. Huhn

But, although the rights of free speech and assembly are fundamental, they are not in their nature absolute. Their exercise is subject to restriction, if the particular restriction proposed is required in order to protect the state from destruction or from serious injury, political, economic or moral.

Laws that infringe on freedom of expression, like all prohibitory laws, are enacted to prevent harm from occurring. The Supreme Court has refused to confer absolute protection upon freedom of expression, a position that would render all laws restricting expression unconstitutional. Instead, to determine the constitutionality of laws restricting expression, the Court has …

Assessing The Constitutionality Of Laws That Are Both Content Based And Content Neutral, Wilson R. Huhn

Wilson R. Huhn

Such a multi-faceted analysis cannot be conflated into two dimensions. Whatever the allure of absolute doctrines, it is just too simple to declare expression "protected" or "unprotected" or to proclaim a regulation "content-based" or "content-neutral." John Paul Stevens (1992)

American legal doctrine evolved from a formalistic categorical approach that dominated legal thinking during the nineteenth century to a realistic balancing approach that developed over the course of the twentieth century. A similar process is now occurring in the constitutional doctrine governing freedom of expression-a process that may culminate in the adoption of what United States Supreme Court Justice John Paul …