Law Commons^™

The Third Amendment In 2020, Michael L. Smith

Faculty Articles

Compared with other Amendments in the Bill of Rights, the Third Amendment does not get much attention. Its prohibition on the quartering of soldiers in houses during peacetime, along with its prohibition on similar quartering during times of war absent legal prescription, is rarely the subject of litigation or scholarship. Indeed, most people—and likely most attorneys—probably cannot tell you what the Third Amendment covers if put on the spot. This Article aims to fix this by giving the Third Amendment the respect that one of the Constitution's original amendments deserves. This Article surveys and analyzes caselaw, scholarship, and popular media …

The Immigrant Struggle For Effective Counsel: An Empirical Assessment, Jayanth K. Krishnan

Articles by Maurer Faculty

Recently, in Department of Homeland Security v. Thuraissigiam, the Supreme Court upheld 8 U.S.C. § 1252(e)(2), a statutory provision placing restrictions on certain noncitizens from seeking habeas review in the federal judiciary. The Court focused on the Constitution’s Suspension Clause, but it also discussed the Due Process Clause, declaring that there was no violation there either.

One question which flows from this decision is whether the federal courts will soon be precluded from hearing other types of claims brought by noncitizens. Consider ineffective assistance of counsel petitions, which in the immigration law context are rooted in the Due Process Clause. …

Originalism's Implementation Problem, Michael L. Smith, Alexander S. Hiland

Faculty Articles

Originalism has received a great deal of recent, mainstream attention. President Donald Trump's nomination of three justices to the Supreme Court amplified discussions of their judicial philosophies during and following their confirmation proceedings. Supporters of these nominations highlighted the nominees' originalist credentials, arguing that originalism was the dominant approach to constitutional interpretation.

In the academic sphere, volumes of articles and books set forth originalist theories and methodology. Its academic proponents also refer to it as the dominant form of constitutional interpretation—often asserting that opponents of originalism have failed to enunciate a coherent alternative theory. Some argue that originalism (at least, …

When Police Volunteer To Kill, Alexandra L. Klein

Faculty Articles

The Supreme Court has upheld the constitutionality of lethal injection, yet states continue to struggle with drug shortages and botched executions. Some states have authorized alternative methods of execution, including the firing squad. Utah, which has consistently carried out firing squad executions throughout its history, relies on police officers from the jurisdiction where the crime took place to volunteer to carry out these executions. This represents a plausible-and probable method for other states in conducting firing squad executions.

Public and academic discussion of the firing squad has centered on questions of pain and suffering. It has not engaged with the …

America’S Racial Stain: The Taint Argument And The Limits Of Constitutional Law And Rhetoric, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

How should reformers respond to America’s racial stain? The problem is more complex than many imagine. Political activists usually attempt to promote change by taking advantage of a gap between current reality and a touchstone they use to measure the normative desirability of that reality. But what if the touchstone itself is infected by the reality that activists want to change?

Questions raised by this problem do not lend themselves to definitive answers, and this essay does not offer them. Instead, I suggest a variety of responses that attempt to grapple with the difficulty. I also offer tentative assessments of …

Remapping Constitutional Theory, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

The time has come for constitutional theory to move beyond the stale argument between originalists and living constitutionalists. The declining significance of that debate provides a motivating backdrop for this Article, but it is not the main point of the discussion. Instead, this Article focuses on the possibility of remapping constitutional disagreement in a fresher, more generative, and more descriptively accurate fashion.

The discussion begins with another familiar dichotomy – the distinction between “judicial activism” and “judicial restraint.” Unfortunately, as employed in popular discussion and in some academic literature, this distinction is also confused and unhelpful. However, we can begin …

State Constitutions And Youth Voting Rights, Joshua A. Douglas

Law Faculty Scholarly Articles

Young voters suffer the lowest turnout rates in American elections. One study shows that younger voters face numerous barriers when attempting to cast a ballot, such as work responsibilities, not receiving an absentee ballot in time, inability to find or access their polling place, voter ID problems, or other issues. Many state election laws are a labyrinth of rules and regulations that make it more difficult to vote, especially for younger people. As one report notes, “many young voters are new voters who need to register for the first time and who may be unfamiliar with the process. Young people …

Are The Federal Rules Of Evidence Unconstitutional?, Ethan J. Leib

Faculty Scholarship

The Federal Rules of Evidence (FRE) rest on an unacceptably shaky constitutional foundation. Unlike other regimes of federal rulemaking—for Civil Procedure, for Criminal Procedure, and for Appellate Procedure—the FRE rulemaking process contemplated by the Rules Enabling Act is both formally and functionally defective because Congress enacted the FRE as a statute first but purports to permit the Supreme Court to revise, repeal, and amend those laws over time, operating as a kind of supercharged administrative agency with the authority to countermand congressional statutes. Formally, this system violates the constitutionally-delineated separation of powers as announced in Chadha, Clinton, and the non-delegation …

Do Local Governments Really Have Too Much Power? Understanding The National League Of Cities' Principles Of Home Rule For The 21st Century, Nestor M. Davidson, Richard Schragger

Faculty Scholarship

This Article explains and defends the National League of Cities’ Principles of Home Rule for the 21st Century, which the authors participated in drafting. The Principles project both articulates a vision of state-local relations appropriate to an urban age and, as with previous efforts stretching back to the Progressive Era, includes a model constitutional home rule article designed to serve as the foundation for state-level constitutional law reform. This Article explains the origins of the Principles, outlines the major components of its model constitutional provision, and defends the model against a set of criticisms common to this and past home-rule …

The Roots Of Collapse: Imposing Constitutional Governance, Catherine Baylin Duryea

Faculty Publications

The foundational assumption of constitutional governance poses a conundrum for contemporary state-builders: a constitution heavily influenced by foreigners does not represent the views of the governed. Can a modern state-building effort foster democratic institutions when the new government reflects foreign? Nowhere was this tension more apparent than in Afghanistan, where the United States and the United Nations were heavily involved in drafting the 2004 Constitution. They shaped the process from the initial framework to the final, frenzied approval. Foreigners were engaged at both the procedural level—determining how the negotiations would occur and who would participate—and at the substantive level—providing input …

House Rules: Congress And The Attorney-Client Privilege, David Rapallo

Georgetown Law Faculty Publications and Other Works

In 2020, the Supreme Court rendered a landmark decision in Trump v. Mazars establishing four factors for determining the validity of congressional subpoenas for a sitting president’s personal papers. In an unanticipated move, Chief Justice John Roberts added that recipients of congressional subpoenas have “long been understood” to retain not only constitutional privileges, but common law privileges developed by judges, including the attorney-client privilege. This was particularly surprising since Trump was not relying on the attorney-client privilege and the Court had never treated this common law privilege as overriding Congress’s Article I power to set its own procedures for conducting …

Absolute Publishing Power And Bulletproof Immunity: How Section 230 Shields Internet Service Providers From Liability And Makes It Impossible To Protect Your Reputation Online, Victoria Anderson

Seattle University Law Review SUpra

No abstract provided.

The Place Of The Presidency In Historical Time, Robert L. Tsai

Faculty Scholarship

This Essay arises from a symposium based on Jack Balkin’s book, The Cycles of Constitutional Time, which argues that America’s constitutional development is marked by patterns of decline and renewal. I contend that the presidency today has become endowed with outsized expectations borne of popular frustrations with a centuries-old document that is desperately in need of updating. As a result, Presidents enjoy imbalanced and dangerous power to initiate legal reform or stymie it. Going forward, three dynamics are worth watching. First, noisy signals coming from performative transformation can obscure the true source and scope of legal changes initiated by a …

First Amendment Knowledge And Competence In United States Residents, Cynthia J. Najdowski, Kimberly M. Bernstein

Psychology Faculty Scholarship

Lacking adequate knowledge about one's rights could inhibit the likelihood of exercising one's rights or lead one to unwittingly violate laws that place legitimate limits on these rights. Thus, the present research examines First Amendment knowledge as well as competence to apply this knowledge in relevant circumstances. Results revealed that one-quarter of participants failed a test of objective knowledge on First Amendment rights. Furthermore, participants' belief in their ability varied depending on their level of knowledge, in line with the Dunning–Kruger effect. Participants also failed to transfer their limited objective knowledge to “real-world” situations, exhibiting impaired First Amendment competence. These …

Self-Determination In American Discourse: The Supreme Court’S Historical Indoctrination Of Free Speech And Expression, Jarred Williams

Honors Theses

Within the American criminal legal system, it is a well-established practice to presume the innocence of those charged with criminal offenses unless proven guilty beyond a reasonable doubt. Such a judicial framework-like approach, called a legal maxim, is utilized in order to ensure that the law is applied and interpreted in ways that legislative bodies originally intended.

The central aim of this piece in relation to the First Amendment of the United States Constitution is to investigate whether the Supreme Court of the United States has utilized a specific legal maxim within cases that dispute government speech or expression regulation. …

2nd Annual Women In Law Leadership Lecture: A Fireside Chat With Debra Katz, Esq. 03-03-2021, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Self-Determination In American Discourse: The Supreme Court’S Historical Indoctrination Of Free Speech And Expression, Jarred Williams

Honors Theses

Within the American criminal legal system, it is a well-established practice to presume the innocence of those charged with criminal offenses unless proven guilty beyond a reasonable doubt. Such a judicial framework-like approach, called a legal maxim, is utilized in order to ensure that the law is applied and interpreted in ways that legislative bodies originally intended.

The central aim of this piece in relation to the First Amendment of the United States Constitution is to investigate whether the Supreme Court of the United States has utilized a specific legal maxim within cases that dispute government speech or expression regulation. …

Delegation At The Founding, Julian Davis Mortenson, Nicholas Bagley

Articles

This article refutes the claim that the Constitution was originally understood to contain a nondelegation doctrine. The founding generation didn’t share anything remotely approaching a belief that the constitutional settlement imposed restrictions on the delegation of legislative power---let alone by empowering the judiciary to police legalized limits. To the contrary, the overwhelming majority of Founders didn’t see anything wrong with delegations as a matter of legal theory. The formal account just wasn’t that complicated: Any particular use of coercive rulemaking authority could readily be characterized as the exercise of either executive or legislative power, and was thus formally valid regardless …

Constitutional Review Of Federal Tax Legislation, Reuven S. Avi-Yonah, Yoseph M. Edrey

Law & Economics Working Papers

What does the Constitution mean when it says that “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States” (US Const. Article I, Section 8, Clause 1)? The definition of “tax” for constitutional purposes has become important in light of the Supreme Court’s 2012 decision in NFIB v. Sebelius, in which Chief Justice Roberts for the Court upheld the constitutionality of the individual mandate of the Affordable Care Act under the taxing power. This has led to commentators questioning …

The Future Of Materialist Constitutionalism, Robert L. Tsai

Faculty Scholarship

This is a review essay of Camila Vergara, Systemic Corruption (Princeton 2020). In this lively and important book, Vergara argues that corruption should be given a structural definition, one that connects corruption with inequality and is plebeian rather than elitist. After surveying the work of thinkers from Machiavelli to Arendt, she proposes a set of solutions grounded in the civic republican tradition.

I press several points in my essay. First, Vergara's linkage of corruption with inequality is promising, but introduces tension between a general problem (domination of the many by the few) and a more specific problem (the domination of …

A Proper Burial, Robert L. Tsai

Faculty Scholarship

This is an invited response to Professor Mark Killenbeck's article, "Sober Second Thoughts? Korematsu Reconsidered." In his contrarian piece, Killenbeck argues that Korematsu was defensible, albeit on narrow grounds: it advanced the development of strict scrutiny. He goes on to argue that comparisons between the internment case and the Supreme Court's Muslim travel ban case are overwrought and that the latter case, too, is defensible. I'm not convinced. First, to say that a ruling is defensible is not saying much; far better for critiques to be tethered to sterner standards. Second, after all these years, Korematsu remains a poorly reasoned …

From Property Rights To Liberty Rights: We The Corporations, A Review Essay, Laura Phillips-Sawyer

Scholarly Works

A long-standing, and deeply controversial, question in constitutional law is whether or not the Constitution's protections for “persons” and “people” extend to corporations. Law professor Adam Winkler's We the Corporations chronicles the most important legal battles launched by corporations to “win their constitutional rights,” by which he means both civil rights against discriminatory state action and civil liberties enshrined in the Bill of Rights and the Constitution (p. xvii). Today, we think of the former as the right to be free from unequal treatment, often protected by statutory laws, and the latter as liberties that affect the ability to live …

Moral Truth And Constitutional Conservatism, Gerard V. Bradley

Journal Articles

Conservative constitutionalism is committed to "originalism," that is, to interpreting the Constitution according to its original public understanding. This defining commitment of constitutional interpretation is sound. For decades, however, constitutional conservatives have diluted it with a methodology of restraint, a normative approach to the judicial task marked by an overriding aversion to critical moral reasoning. In any event, the methodology eclipsed originalism and the partnership with moral truth that originalism actually entails. Conservative constitutionalism is presently a melange of mostly unsound arguments against the worst depredations of Casey's Mystery Passage.

The reason for the methodological moral reticence is easy to …

Amending A Racist Constitution, William J. Aceves

Faculty Scholarship

Ours is a racist Constitution. Despite its soaring language, it was founded on slavery and a commitment to racial inequality. This vision is etched in the constitutional text, from the notorious Three-Fifths Clause to the equally repugnant Fugitive Slave Clause. And despite the Civil War and the Reconstruction Amendments, the Constitution retains these vestiges of slavery in its fabric. After 230 years, it is time to remove these troubling provisions from the Constitution. This Essay offers a radical departure from prior constitutional practice. Instead of appending yet another amendment that would simply require readers to ignore the offending language, this …

Constitutional Skepticism And Local Facts, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

Are written constitutions evil? In his new book, Constitutional Idolatry and Democracy, Brian Christoper Jones argues that they are. He claims that written constitutions fail to unite societies, degrade democratic engagement, and obstruct necessary constitutional maintenance. This review of his book argues that he is mostly right about the effects of the American Constitution, but that the effects of other constitutions will vary depending upon local facts.

From Parchment To Dust: The Case For Constitutional Skepticism (Introduction), Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

This is the introduction to a new book entitled "From Parchment to Dust: The Case for Constitutional Skepticism." The introduction sets out a preliminary case for constitutional skepticism and outlines the arguments contained in the rest of the book.

The Case Of The Dishonest Scrivener: Gouverneur Morris And The Creation Of The Federalist Constitution, William M. Treanor

Georgetown Law Faculty Publications and Other Works

At the end of the Constitutional Convention, the delegates appointed the Committee of Style and Arrangement to bring together the textual provisions that the Convention had previously agreed to and to prepare a final constitution. Pennsylvania delegate Gouverneur Morris drafted the document for the Committee, and, with few revisions and little debate, the Convention adopted Morris’s draft. For more than two hundred years, questions have been raised as to whether Morris covertly altered the text in order to advance his constitutional vision, but modern legal scholars and historians studying the Convention have either ignored the issue or concluded that Morris …

Ruth Bader Ginsburg, Wise Legal Giant, Thomas A. Schweitzer

Scholarly Works

No abstract provided.

Towards A Law Of Inclusive Planning: A Response To “Fair Housing For A Non-Sexist City”, Olatunde C.A. Johnson

Faculty Scholarship

Noah Kazis’s important article, Fair Housing for a Non-sexist City, shows how law shapes the contours of neighborhoods and embeds forms of inequality, and how fair housing law can provide a remedy. Kazis surfaces two dimensions of housing that generate inequality and that are sometimes invisible. Kazis highlights the role of planning and design rules – the seemingly identity-neutral zoning, code enforcement, and land-use decisions that act as a form of law. Kazis also reveals how gendered norms underlie those rules and policies. These aspects of Kazis’s project link to commentary on the often invisible, gendered norms that shape …

Taking Appropriations Seriously, Gillian E. Metzger

Faculty Scholarship

Appropriations lie at the core of the administrative state and are be­com­ing increasingly important as deep partisan divides have stymied sub­stan­tive legislation. Both Congress and the President exploit appropria­tions to control government and advance their policy agendas, with the border wall battle being just one of several recent high-profile examples. Yet in public law doctrine, appropriations are ignored, pulled out for spe­cial legal treatment, or subjected to legal frameworks ill-suited for appro­priations realities. This Article documents how appropriations are mar­ginalized in a variety of public law contexts and assesses the reasons for this unjustified treatment. Appro­priations’ doctrinal marginalization does not …