Law Commons^™

Religious Liberty And The Constitution: Of Rules And Principles, Fixity And Change, Mitchell Berman

University of Pennsylvania Journal of Constitutional Law

Our constitutional law of religious liberty is a riot of principles: principles of freedom of conscience, neutrality, separation of church and state, and others. To resolve concrete disputes, we must identify what those principles are and how they could ever jointly deliver singular answers to constitutional questions. Furthermore, to identify what the principles are, we must grasp what makes them so. This Article aims to meet these three needs. It clarifies what grounds our constitutional principles, sketches what our constitutional principles of religious liberty are today, and explains how the law could ever lie decisively on the side of one …

Padilla's Broken Promise: Pennsylvania Case Study, Mikaela Wolf-Sorokin, Liz Bradley, Whitney Viets

University of Pennsylvania Journal of Constitutional Law

In 2010, the Supreme Court held in Padilla v. Kentucky that criminal defense attorneys have a constitutional obligation to advise noncitizen clients of the immigration consequences of a guilty plea in criminal court proceedings. Though it has been over a decade since the decision, little research has been done regarding Padilla’s implementation by defense counsel on a statewide level. This Article provides findings from a case study on Padilla advising in Pennsylvania. Pennsylvania is unique because its state courts have interpreted Padilla narrowly and permit immigration advisals that would be deemed constitutionally deficient in other jurisdictions. Pennsylvania also does not …

Child Sacrifices: The Precarity Of Minors' Autonomy And Bodily Integrity After Dobbs, Teri D. Baxter

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Salvaging The Speaker Clause: The Constitutional Case Against Nonmember Speakers Of The House, Tanner Wadsworth, Kade Allred, Adam Reed Moore

University of Pennsylvania Journal of Constitutional Law

As the Founding generation understood the word, “Speaker” meant an elected member of the House. Yet modern representatives nominate non-House-members for the speakership—and many argue the practice is constitutional. To correct this constitutional drift, this Article closely analyzes the text of the Speaker Clause, the structure of the Constitution, and 700 years of history and tradition to show that the Constitution requires the Speaker of the House to be a member of the House. It also considers the practicalities of correcting this drift. If, as this Article argues, the Constitution bars nonmembers from the speakership, who can enforce that rule, …

Original Understanding, Punishment, And Collateral Consequences, Brian M. Murray

University of Pennsylvania Journal of Constitutional Law

Can Founding-era understandings of punishment limit the reach of punitive state activity, specifically with respect to automatic collateral consequences? This Article begins to tackle that question. For over a century, the Supreme Court has struggled to define the boundaries of crime and punishment. Under current doctrine, a deprivation constitutes punishment when it furthers a legislatively assigned penal purpose. A retributive purpose is sufficient, whereas traditionally instrumentalist purposes, such as deterrence, rehabilitation, or incapacitation, are not. Scholars have criticized this framework for several reasons, highlighting its jurisprudential assumptions, philosophical confusion, historical inconsistency, unworkability, complexity, and failure to reflect the essentially punitive …

Rules For Robots: Constitutional Challenges With The Ai Bill Of Right's Principles Regulating Automated Systems, Melany Amarikwa

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

The Roberts Court Revolution, Institutional Legitimacy, And The Promise (And Peril) Of Constitutional Statesmanship, Thomas Donnelly

University of Pennsylvania Journal of Constitutional Law

Our nation is in the middle of a constitutional revolution. While many periods of constitutional transformation have arisen out of large-scale political realignments, the Roberts Court Revolution is a product of our nation’s long (and unusual) political interregnum. Even as neither political party has managed to secure enough support to reconstruct our nation’s politics, the Roberts Court—with its young and ambitious conservative majority—has already moved quickly to reconsider key pillars of the existing constitutional regime. This represents a challenging moment for the Roberts Court and its institutional legitimacy. To counteract this danger, the Justices might return to an old idea—one …

Polarized Contermajoritarianism, Jacob Eisler

University of Pennsylvania Journal of Constitutional Law

This Article identifies a radical transformation in constitutional law methodology: the central project of constitutional analysis has changed from offering value-neutral theories of interpretation to observing and critiquing conservative forces that undermine popular self-rule. This is most apparent in scholarly reactions to the Roberts Court’s refusal to strike down legislation that promulgates voter suppression, partisan gerrymandering, and abortion restrictions. Scholars treat these decisions to leave legislation standing as a direct assault on democracy, a distinction previously reserved for decisions that struck down legislation (such as Lochner v. New York). This new paradigm indicates a radical realignment in academic evaluation of …

Stopping "Stop The Steal" Why Article Ii Doesn't Let Legislatures Overturn Elections, Benjamin Della Rocca

University of Pennsylvania Journal of Constitutional Law

The 2020 presidential race was hard fought—before Election Day, and after. The loser, Donald Trump, spent weeks pressuring state legislatures to overturn his defeats. His arguments hinged on Article II of the U.S. Constitution, which, his lawyers insisted, permitted legislatures to intervene. While no legislature did so in 2020, the specter of postelection legislative interference still threatens our elections and risks a constitutional crisis.

This Article explains why Article II permits no such thing. Specifically, it argues that Article II’s grant of power—whatever its content—must be read as directed only toward pre-election legislatures, not postelection ones. This claim fills major …

Taking Interstate Rights Seriously, Michael Zschokke

University of Pennsylvania Journal of Constitutional Law

When the U.S. Supreme Court in the 2019 case of Franchise Tax Board v. Hyatt held that the Constitution bars private suits against a state in another state’s courts, it endorsed a surprisingly shallow conception of state sovereign power. But the doctrinal alternative from the now-overruled Nevada v. Hall is no better. Where Hyatt gives too much constitutional protection to would-be defendant states, Hall gives too little. And both approaches mistakenly conceive of interstate sovereign immunity as an on/off switch that the Constitution locks in one position.

Finding neither Hyatt III nor Hall satisfactory, I offer a third view. The …

Voting Registration And Federal Housing Assistance: A Practical Solution To Increase Democratic Participation, Arlo Blaisus

University of Pennsylvania Journal of Constitutional Law

Congress passed the National Voter Registration Act of 1993 (NVRA) to maximize voter registration opportunities and correct a century of discriminatory and overly complicated State voter registration laws. Section 7 of the NVRA was designed to increase voter registration among low-income and minority citizens by requiring States to provide voter registration services at public assistance agencies. However, a three-decade campaign by state governments to resist implementing the NVRA has undermined its effectiveness.

As a part of this campaign, States interpret Section 7 narrowly to limit its scope. Under Section 7, each State must designate as Voter Registration Agencies (VRAs) “all …

First Amendment And Consumer Advertisement, S. Kelvin Fang

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

The Brilliance In Slaughterhouse: A Judicially Restrained And Original Understanding Of "Privileges Or Immunities", Lawrence Lessig

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Immigration In The Shadow Of Death, Eunice Lee

University of Pennsylvania Journal of Constitutional Law

In this piece, I examine the immigration enforcement and adjudication system as a whole from the perspective of life and death. Drawing upon social theory frames as well as legal scholarship, I look to how doctrines and laws continually devalue and risk noncitizens’ lives. Although scholarly work has examined how differing aspects of immigration law and enforcement take lives—e.g., via detention, cross-border shootings, and deportation— explorations have yet to consider the system as a whole from this perspective.

My contribution illuminates how laws as well as legal doctrines serve as mechanisms for assigning differential value to human life, ultimately taking …

"The Key-Stone To The Arch": Unlocking Section 13'S Original Meaning, Kevin Bendesky

University of Pennsylvania Journal of Constitutional Law

The Supreme Court of Pennsylvania holds that Section 13 of the State’s constitution, which prohibits all “cruel punishments,” is coextensive with the Eighth Amendment, which prohibits only punishments that are both “cruel and unusual.” Rather than analyze the state provision independently, the court defers to the U.S. Supreme Court’s interpretation of the Eighth Amendment. This, says the court, is because Pennsylvania history does not provide evidence that the Commonwealth’s prohibition differs from the federal one. And without that historical basis, the court believes it is bound by federal precedent. This is mistaken.

History reveals that Pennsylvanians had a distinct, original …

The Federal War On Guns: A Story In Four-And-A-Half Acts, Brandon E. Beck

University of Pennsylvania Journal of Constitutional Law

“History is a jangle of accidents, blunders, surprises and absurdities, and so is our knowledge of it, but if we are to report it at all we must impose some order upon it.”

Beginning in the early 1990s, the Executive Branch took a novel approach to the enforcement of federal firearms offenses. It replaced traditional notions of restraint with a newfound willingness to exercise its power broadly, leading to a sharp increase in the number of federal firearms offenders that continues today. A recent development, however, threatens to dismantle the core of the federal firearms scheme. Decided in 2022, the …

What Is The Matter With Dobbs?, Andrew Coan

University of Pennsylvania Journal of Constitutional Law

Contrary to its critics, Dobbs v. Jackson Women’s Health Organization is not illegitimate or lawless. It is a highly consequential but fundamentally ordinary example of the inextricable connections between morality and constitutional law. If abortion is akin to murder, Dobbs could not—and should not—have come out any other way. If abortion is essential to personal autonomy and equal citizenship, the case was wrongly decided and should be reversed at the earliest opportunity.

The appropriate response to decisions like Dobbs is to criticize the moral judgments underlying them. Depending on the circumstances, institutional responses, such as court packing and jurisdiction stripping, …

Lavatories Of Democaracy: Recognizing A Right To Public Toilets Through International Human Rights And State Constitutitonal Law, Rick Weinmeyer

University of Pennsylvania Journal of Constitutional Law

The United States is a public toilet nightmare. Truly public toilets are a rarity, while the restrooms provided by private businesses are inconsistently available via “customer only” policies and the discriminatory actions of owners and their employees. Some jurisdictions have made tepid attempts at providing more bathrooms, but all have failed. The result: an accumulation of entirely preventable public health harms, including outbreaks of infectious disease, illness, and dignitary harms.

This Article is the first to provide a comprehensive review of U.S. toilet law—the laws and policies that determine where bathrooms are provided and who has access to them—and diagnose …

A Sword And A Shield: An Antidiscrimination Analysis Of Academic Freedom Protections, Apratim Vidyarthi

University of Pennsylvania Journal of Constitutional Law

Academic freedom is an essential principle undergirding education in the United States. Its purpose is to further the freedom of thought and inquiry in the academic profession by advancing knowledge and the search for truth. Academic freedom goes back more than a century, and is now intertwined with First Amendment doctrine. Yet today’s academic freedom doctrine suffers from serious problems, some of which perpetuate discrimination in the classroom and systemically in educational institutions.

The definition of academic freedom in theory is misaligned with that in case law. Courts have done little to analyze what protections academic freedom provides, and case …

Concretizing Abstract Rights: Damages For Intangible Constitutional Injuries Under The Prison Litigation Reform Act, Abigail Kasdin

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

The Shadow Constitution: Rescuing Our Inheritance From Neglect And Disuse, Stephen Menendian

University of Pennsylvania Journal of Constitutional Law

The United States Constitution is the foundation of American law and one of the most venerated documents in the American political community. Although most constitutional scholarship focuses on the meaning of the more heavily litigated provisions, such as the equal protection clause and the due process clause, prior scholarship has also identified and pressed for the revival or re-interpretation of many neglected or largely overlooked provisions of the United States Constitution. Much of this prior scholarship, however, is narrowly focused on a particular provision or small set of interrelated provisions. This article surveys twelve constitutional provisions characterized in prior scholarship …

Dobbs V. Jackson Women's Health Organization: Reckoning With Its Impact And Charting A Path Forward, Hillary A. Schneller, Diana Kasdan, Risa E. Kaufman, Alexander Wilson

University of Pennsylvania Journal of Constitutional Law

Dobbs v. Jackson Women’s Health Organization undid 50 years of precedent guaranteeing the constitutional right to abortion in the United States. At the one-year anniversary of the decision, and as the devastating consequences continue to play out across the country, this article analyzes Dobbs and its impact. It also charts a way forward for rebuilding a more robust Fourteenth Amendment jurisprudence. It draws on the authors’ individual perspective and expertise, and the Center for Reproductive Rights’ role as lead counsel in the case and as a global human rights organization advancing reproductive rights in the United States and around the …

Transportation: The Hidden Right To Exclude, Saleema Snow

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Missing Doctrines In Fifth Circuit Caselaw: Injury And Causation In Environmental Litigators' Standing, Karen Joo

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Sovereignty And Separation: John Taylor Of Caroline And The Division Of Powers, Noah C. Zimmermann

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Implicit Bias, Structural Bias, And Implications For Law And Policy, Goodwin Liu

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Intraparty Conflict And The Separation Of Powers, Gregory Elinson

University of Pennsylvania Journal of Constitutional Law

Intent on reconciling constitutional theory to political reality, public law scholars have in recent decades dismissed as naïve both the logic of the Constitution’s design set forth in The Federalist and the Framers’ dismal view of political parties. They argue that, contrary to the Madisonian vision, competition between our two national political parties undergirds the horizontal and vertical separation of powers. But, in calling attention to the fights that take place between political parties, they underestimate the constitutional significance of the conflicts that persist within them. Reconsidering the law and theory of the separation of powers with attention to intraparty …

In The Room Where The Constitution Happens, Lorianne Updike Toler

University of Pennsylvania Journal of Constitutional Law

Constitution-writing, according to the United Nations, should be participatory, non-exclusionary, and transparent. Recent scholarship has identified group inclusion, or ensuring that a broad swath of enfranchised groups is welcomed into the drafting room, as the lodestar of constitutional process.

In making this comparative case—one which has important implications for modern constitution-writing— scholarship provides precious little empirical evidence, particularly from the historical genre. This ignores the benefit of studying the oldest constitution-writing traditions in America and all that can be learned by tracing a practice or idea to its roots.

This study, the first monogram on New Hampshire’s five constitution-writing processes …

Reconstructing As Revolution: The Fourteenth Amendment And The Destruction Of Founding America, Kermit Roosevelt Iii

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Background As Foreground: Section Three Of The Fourteenth Amendment And January 6th, Gerard N. Magliocca

University of Pennsylvania Journal of Constitutional Law

[I]t is undoubted that those provisions of the constitution which deny to the legislature power to deprive any person of life, liberty, and property, without due process of law, or to pass a bill of attainder or an ex post facto, are inconsistent in their spirit and general purpose with a provision which, at once without trial, deprives a whole class of persons of offices held by them, for cause, however grave. It is true that no limit can be imposed on the people when exercising their sovereign power in amending their own constitution of government. But it is a …