Law Commons^™

The Cycle Of Delegitimization: Lessons From Dred Scott On The Relationship Between The Supreme Court And The Nation, Jonathon J. Booth

UC Law Constitutional Quarterly

This Article examines how Chief Justice Taney’s opinion in Dred Scott v. Sandford sparked a cycle of delegitimization that parallels contemporary debates about the Supreme Court’s legitimacy crisis. Part I explicates how one family’s fight for freedom in Missouri reached the Supreme Court, the resulting radical decision, and the nation’s reaction to show the initial stages of this cycle. Part II examines the impact of Dred Scott on politics and law during the James Buchanan administration (1857–1861). During this period, the federal government, Southern states, and some Western territories swiftly implemented the decision, for example by expelling free Black residents. …

How American Society And Law Continue To Undermine People With Disabilities Seeking Education And Employment, Angelica Guevara

UC Law Constitutional Quarterly

Our Founders specifically identified education as necessary to economic success and full participation in our democracy and society. However, the Supreme Court held in San Antonio Independent School District v. Rodriguez that education in America is not a constitutional right; instead, it is a commodity that few can afford. Then, in 2023, Biden v. Nebraska exposed the direct result of that ruling: the average American––regardless of their disability status––struggles to pay back their student loans, even when they have a well-paying job. The student debt crisis significantly impacts the economic future of students with disabilities, who make on average sixty-six …

Masthead

UC Law Constitutional Quarterly

No abstract provided.

Will The New Roberts Court Revive A Formalist Approach To Fourth Amendment Jurisprudence?, Roger Antonio Tejada

UC Law Constitutional Quarterly

While all Chief Justices leave behind distinctive periods of judicial thought and practice, the quantitative and qualitative data presented in this article show that the Roberts Court in particular stands out in the development of Fourth Amendment precedent. The key cases that shaped the search and seizure doctrine before and during his rise show that, contrary to what many may expect, Chief Justice Roberts will likely oversee limited, pro-defendant decisions that could grant additional legitimacy to the Court’s crime-control jurisprudence. On the other hand, the new Justices’ voting records and writings suggest that there are several potential coalitions that could …

Rethinking The Fundamentals: Applying The Evolving Standards Of Decency Test To The Court’S Evaluation Of Fundamental Rights., Nick Wolfram

UC Law Constitutional Quarterly

In 1910, the Supreme Court recognized in Weems v. United States that a constitution “must be capable of wider application than the mischief which gave it birth.” This principle led to the creation of the Court’s two-pronged “evolving standards of decency,” test: (1) evidence of an objective indicia of a national consensus, and (2) the reviewing court’s own independent judgment. To this day the Court has yet to apply this test outside of the Eighth Amendment context. But can the “evolving standards of decency,” test identify and protect other fundamental rights? This Article explores how the Court could apply the …

Terrorism Should Not Be A Crime: How Political Labels Are Dangerous To American Democracy, Abigail S. Grand

William & Mary Journal of Race, Gender, and Social Justice

This Note calls for a dismantling of the United States’ current method of prosecuting terrorism, rejecting the “terrorism” label as a mechanism for charging crimes. Prosecutors should instead charge individuals in terrorism cases for their underlying criminal actions rather than rely on material support statutes and political innuendos to secure a conviction. By examining the implications of the terrorism label in post-9/11 America, this Note addresses how a moral panic enabled the executive branch to overstep its constitutional restraints and threatened the delicate balance of powers central to American democracy. Next, it proposes, as many have before, that Article III …

Overturning Sffa V. Harvard, David Hinojosa, Chavis Jones

The Scholar: St. Mary's Law Review on Race and Social Justice

One of the first lessons law students learn is the importance of stare decisis. It not only serves as a tool to learn how to apply settled law to argument and persuasive writing, but foundationally stare decisis helps promote the public’s trust, confidence, and faith in the judicial system. Thus, when the Supreme Court issued its 6-3 opinion in 2023 in Students for Fair Admissions v. Harvard/University of North Carolina (“Harvard”), most onlookers viewed the decision as being the final nail in the coffin for affirmative action in higher education admissions. However, we—the authors—are among the minority.

In …

Police Shootings After Torres V. Madrid: Suspects Eluding Capture Are Seized Under Fourth Amendment, Travis R. Thickstun

The Scholar: St. Mary's Law Review on Race and Social Justice

In Torres v. Madrid, the Supreme Court held that the application of physical force to the body of a person with intent to restrain is a seizure even if the person does not submit and is not subdued. Because this new rule brings even the slightest touches within the Fourth Amendment’s protections against unreasonable searches and seizures, it allows more claims against police officers for violations of the Fourth Amendment’s prohibition on unreasonable searches and seizures.

Until the Torres decision though, only when someone shot by police was actually taken into custody could that person sue the police officers …

Hoardings, Emilio R. Longoria

Villanova Law Review

No abstract provided.

Public Employees As A Reflection Of A Religiously Diverse Culture, Steven T. Collis

Notre Dame Law Review Reflection

For decades, scholars and jurists have debated over whether government violates

the Establishment Clause when it endorses religion or if coercion is required. In

Kennedy v. Bremerton School District, the Supreme Court put this argument to

rest, at least as to public employees. It grounded its decision in some form of

originalism. While that will be sufficient to satisfy some readers, others will want to be

assured of the wisdom of the rule originalism demands. This Essay argues that a

coercion test for the private religious exercise of public employees is appropriate for a

pluralistic society.

It offers four …

Thoughts On The Architecture Of Freedom Of Religion And Freedom Of Speech, Perry Dane

Notre Dame Law Review Reflection

This symposium was convened to explore the rights of businesses

and employees to invoke freedom of religion or freedom of expression

to resist certain forms of state regulation. The most immediate

occasions for that discussion, at least for my purposes, are cases such

as 303 Creative LLC v. Elenis, in which the Supreme Court upheld the

right of a website designer to refuse to design a wedding website for a

same-sex couple. These sorts of cases, which pit the religious or

expressive rights of conscientious believers against the equality rights

of others, have proliferated in recent years.

I have …

First Amendment Imbalance: Kennedy V. Bremerton School District, Steven K. Green

Notre Dame Law Review Reflection

This Essay seeks to unpack the competing legal claims presented by a public-school employee engaging in religious expression in conjunction with their work duties and in the presence of students. The competing First Amendment issues are several: nonestablishment, free exercise, free speech (including the government-employee speech doctrine), and parental expressive rights. These various issues came to a head in 2022 in Kennedy v. Bremerton School District where a Court majority affirmed the right of a high school football coach to engage in demonstrative prayers on the football field at the conclusion of a game. In so holding, the majority prioritized …

Ordinary Conscience And Pretend Offenses: Protecting Those Left Out Of Title Vii After Groff, Robin Fretwell Wilson, Michael J. Petersen

Notre Dame Law Review Reflection

Part I reviews America’s foundational commitment to fairness and transparency by government, as well as the deep respect the Founders believed should be accorded to conscience specifically.

Part II applauds the unanimous decision in Groff to walk back the Supreme Court’s grievous error in Trans World Airlines, Inc. v. Hardison. We canvas illustrative cases pre-Groff in which employees, notwithstanding Hardison’s “de minimis” burden standard, proceeded to trial, and instances in which employees did not. We also illustrate how, post-Groff, employees are, rightfully, having an easier time getting to trial.

Even as Groff makes actual Title …

Cleaning The Mess Of 303 Creative V. Elenis, Netta Barak-Corren

Notre Dame Law Review Reflection

No piece of academic writing can clean, by itself, the mess left by 303 Creative v. Elenis. Only the Court can. This symposium piece can only offer analytical clarity on 303 Creative, which can help to understand and organize the mess. I will proceed to do so in three steps. First, I point out the glaring omissions of the Court’s opinion and criticize the dangerous consequences of the Court’s inexplicable approach. Second, I discuss the inconsistency of the dissent and the truth it reveals about the unviability of its sweeping position. Finally, I argue that the only way …

Guns, Analogies, And Constitutional Interpretation Across Centuries, Frederick Schauer, Barbara A. Spellman

Notre Dame Law Review

In New York State Rifle & Pistol Ass’n v. Bruen, the Supreme Court acknowledged the difficulties in applying its constitutional originalism to the question of firearms regulation. After all, the fully automatic assault rifles whose sale, possession, and use lie at the center of many contemporary debates about gun control and the Second Amendment simply did not exist in 1791, when the Second Amendment was ratified. Nor did they exist in 1868, when the Fourteenth Amendment, the vehicle for applying the Second Amendment to the states, was added to the Constitution. The firearms that existed in 1791 were largely …

The Nineteenth Amendment And Dobbs, Paula A. Monopoli

ConLawNOW

There was a surge in legal scholarship around the Nineteenth Amendment to the United States Constitution—the Woman Suffrage Amendment—leading up to its centennial in August 2020. But this scholarly interest around the Nineteenth peaked two years before the U.S. Supreme Court’s historic decision in Dobbs v. Jackson Women’s Health Organization in June 2022. This paper revisits the Nineteenth Amendment in light of the Court’s decision in Dobbs. It argues that the Nineteenth should be understood as a ban on sex discrimination that extends beyond the right to vote. The Amendment expands the scope of women’s citizenship as a matter …

The General-Law Right To Bear Arms, William Baude, Robert Leider

Notre Dame Law Review

In this Article, we argue that Bruen's intended methodological shift has been widely misunderstood by the bench and bar. This has led to confusion and misapplication in the lower courts, as well as much scholarly criticism of the test that is, we think, misdirected. As we will explain, Bruen calls for a form of legal originalism, applying a classical view of fundamental rights as a form of unwritten customary law. This is consistent with the text and history of the Constitution and leads to results that are less mechanical and more sensible than many lower courts have thought. Understanding …

Bruen’S Enforcement Puzzle: Unearthing And Adjudicating The Historical Enforcement Record In Second Amendment Cases, Andrew Willinger

Notre Dame Law Review

The Supreme Court’s 2022 decision in New York State Rifle & Pistol Ass’n v. Bruen brings historical complexity to the fore by instituting a history-focused test for the Second Amendment that demands analogues from the Founding or Reconstruction eras to support modern gun regulations. The majority opinion in Bruen considers, in multiple places, how certain historical gun regulations may have been enforced. In each instance, the Court suggests that evidence of racially disparate enforcement of a historical law is relevant to whether that law is part of the American historical tradition and an appropriate analogue. Historical enforcement data appear to …

Technology, Tradition, And “The Terror Of The People”, Darrell A.H. Miller, Alexandra Filindra, Noah Kaplan

Notre Dame Law Review

In New York State Rifle & Pistol Ass’n v. Bruen, the Supreme Court mandated a text, history, tradition, and analogy–only approach to Second Amendment cases.

No longer can policymakers rely on empirical data alone to carry their litigation burden. Now such data must conform to a still-emerging “historical tradition of firearm regulation” to meet constitutional muster. Some despair that reams of data, careful experiments, and rigorous statistical analyses no longer have any relevance to the gun debate.

But those that claim that Bruen signals the end of empirically grounded policy solutions badly misread the opinion. Empirical studies can still …

Strengthening State Constitutions, Jared C. Huber

Notre Dame Law Review

This Note argues that state constitutions should have more difficult amendment procedures than most states currently do. Part I highlights the ease of amending most state constitutions by evaluating state constitutional amendment procedures. Next, Part II argues that because constitutions are fundamental, organizing laws, their amendment procedures should reflect such status. Finally, Part III of this Note examines state constitutional amendments that resulted from national political turmoil and argues amendment procedures should be stringent enough to temper such reactionism. If a constitution is to be a constitution, it must be resilient enough to function as one. State constitutions largely fail …

Historical Fact, Ryan C. Williams

Notre Dame Law Review

The growing emphasis on history as a criterion of constitutional decision-making in Supreme Court jurisprudence has raised the importance of a distinctive type of judicial fact-finding—namely, the investigation and resolution of contested questions of historical fact. Although history has always played an important role in constitutional adjudication, its primary role has traditionally been as an input to constitutional interpretation. But in cases like New York State Rifle & Pistol Ass’n v. Bruen, the Court has increasingly demanded that factual determinations regarding the content, meaning, purposes, and effects of decisions taken in the distant past should also guide the lower …

Diverse Originalism, History & Tradition, Christina Mulligan

Notre Dame Law Review

The Supreme Court’s New York State Rifle & Pistol Ass’n v. Bruen decision appears to be an originalist opinion, ostensibly looking for the meaning of the Constitution’s text by looking to the public’s understanding of the language used. But Bruen's test actually fails to follow a public meaning originalist methodology. The Court focuses present-day constitutional interpreters on evidence of constitutional meaning that only reflects a portion of the public—the politically empowered men who were in a position to pass legislation. Two unfortunate outcomes follow. First, by limiting potential evidence of public meaning so severely, the Court raises the risk …

What The Cluck? Backyard Chickens And Maine's Mysterious Right To Food, Lucy Weaver

Maine Law Review

When Maine voters approved the nation’s first “right to food” constitutional amendment, many were concerned about the amendment’s potential to conflict with animal welfare, food safety, and other regulations currently in place at the state and local level. Born from a decade of advocacy, the amendment represents a new era for Maine’s food sovereignty movement. However, the boundaries of the amendment remain unclear, and Maine’s municipalities lack sufficient guidance as they attempt to navigate how this amendment applies to them. This Comment explores one example of the many challenges that may arise from the enactment of the right to food …

You Can Grow Your Own Way: Maine's Constitutional "Right To Food" Amendment, Kristin Hebert

Maine Law Review

Maine is the first state to constitutionalize a right to food. This is significant not only because no other states have enshrined such a right, but because this is Maine’s first foray into constitutionalizing any new individual rights. This raises a host of questions for courts to grapple with: What level of scrutiny should apply? What kinds of protections does this right afford? What are its limitations? This Comment offers a framework for courts to use when interpreting the right to food that is grounded in the legislative and voter intent. Given the amendment’s broad language, this comment argues that …

“Food Of Their Own Choosing”: Improving Access To Locally Grown, Sustainable, And Real Food, Alexia M. Kulwiec, Tom Starck

Maine Law Review

The State of Maine is leading the nation in efforts not only to promote production of locally and sustainably grown food, but the right of consumers to grow, produce, and consume the food of their choosing. This includes creation of a constitutional right to food, a right recognized in the global community but not throughout the United States. Many advocates in the United States emphasize the right to food as a human right, advocating for the same attention and protection as other human rights such as the right to life, liberty, freedom from slavery, and freedom from discrimination. The right …

Realizing The Right To Food In Maine: Insights From International Law, Smita Narula

Maine Law Review

In November 2021, Maine made history as the first U.S. state to constitutionally recognize the right to food. Maine’s right to food amendment—which sought to address widespread food insecurity and corporate control of the food supply—proclaims food as a “natural, inherent and unalienable right,” and empowers Mainers to grow and consume food of their own choosing, affirming their right to food sovereignty. This Article makes three key contributions to scholarly examinations of this historic amendment. First, it situates the amendment within the broader landscape of domestic and global struggles for the right to food and food sovereignty. Second, the Article …