Law Commons^™

Democracy, Federalism, And The Guarantee Clause, Carolyn Shapiro

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The Guarantee Clause of the Constitution promises that “[t]he United States shall guarantee to every State in this Union a Republican form of Government . . . .” The Supreme Court has long held this Clause to be nonjusticiable, and as a result, many see the Clause as purely vestigial. But nonjusticiable does not mean toothless, and this view fails to recognize the Clause’s grant of power to Congress. The Guarantee Clause provides Congress with the authority to ensure that each state’s internal governance meets a minimum standard of republicanism. The Framers included this promise because they feared that some …

The Conservative-Libertarian Turn In First Amendment Jurisprudence, Steven J. Heyman

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Conservative constitutional jurisprudence in the United States has an important libertarian dimension. In recent years, a conservative majority of the Supreme Court has strengthened the constitutional protections for property rights, recognized an individual right to own firearms, imposed limits on the welfare state and the powers of the federal government, cut back on affirmative action, and held that closely held corporations have a right to religious liberty that permits them to deny contraceptive coverage to their female employees. This libertarian streak also can be seen in decisions on freedom of speech and association. In several leading cases, conservative judges have …

The Civil Rights-Civil Liberties Divide, Christopher W. Schmidt

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Contemporary legal discourse differentiates “civil rights” from “civil liberties.” The former are generally understood as protections against discriminatory treatment, the latter as freedom from oppressive government authority. This Essay explains how this differentiation arose and considers its consequences.

Although there is a certain inherent logic to the civil rights-civil liberties divide, it in fact is the product of the unique circumstances of a particular moment in history. In the early years of the Cold War, liberal anticommunists sought to distinguish their incipient interest in the cause of racial equality from their belief that national security required limitations on the speech …

Section 1983 Is Born: The Interlocking Supreme Court Stories Of Tenney And Monroe, Sheldon Nahmod

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No abstract provided.

Why Broccoli? Limiting Principles And Popular Constitutionalism In The Health Care Case, Mark D. Rosen, Christopher W. Schmidt

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Crucial to the Court’s disposition in the constitutional challenge to the Affordable Care Act (ACA) was a hypothetical mandate to purchase broccoli, which Congress never had considered and nobody thought would ever be enacted. For the five Justices who concluded the ACA exceeded Congress’s commerce power, a fatal flaw in the government’s case was its inability to offer an adequate explanation for why upholding that mandate would not entail also upholding a federal requirement that all citizens purchase broccoli. The minority insisted the broccoli mandate was distinguishable. This Article argues that the fact that all the Justices insisted on providing …

The Long And Winding Road From Monroe To Connick, Sheldon Nahmod

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In this article, I address the historical and doctrinal development of § 1983 local government liability, beginning with Monroe v. Pape in 1961 and culminating in the Supreme Court’s controversial 2011 failure to train decision in Connick v. Thompson. Connick has made it exceptionally difficult for § 1983 plaintiffs to prevail against local governments in failure to train cases. In the course of my analysis, I also consider the oral argument and opinions in Connick as well as various aspects of § 1983 doctrine. I ultimately situate Connick in the Court’s federalism jurisprudence which doubles back to Justice Frankfurter’s view …

The Tea Party And The Constitution, Christopher W. Schmidt

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This Article considers the Tea Party as a constitutional movement. I explore the Tea Party’s ambitious effort to transform the role of the Constitution in American life, examining both the substance of the Tea Party’s constitutional claims and the tactics movement leaders have embraced for advancing these claims. No major social movement in modern American history has so explicitly tied its reform agenda to the Constitution. From the time when the Tea Party burst onto the American political scene in early 2009, its supporters claimed in no uncertain terms that much recent federal government action overstepped constitutionally defined limitations. A …

The Dark Side Of The Force: The Legacy Of Justice Holmes For First Amendment Jurisprudence, Steven J. Heyman

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Modern First Amendment jurisprudence is deeply paradoxical. On one hand, freedom of speech is said to promote fundamental values such as individual self-fulfillment, democratic deliberation, and the search for truth. At the same time, however, many leading decisions protect speech that appears to undermine these values by attacking the dignity and personality of others or their status as full and equal members of the community. In this Article, I explore where this Jekyll-and-Hyde quality of First Amendment jurisprudence comes from. I argue that the American free speech tradition consists of two very different strands: a liberal humanist view that emphasizes …

Popular Constitutionalism On The Right: Lessons From The Tea Party, Christopher W. Schmidt

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In this Article, I consider the lessons that the Tea Party offers for scholars of popular constitutionalism. Specifically, I argue that the experience of the Tea Party should spark a reconsideration of some assumptions that tend to drive much of the interest in popular constitutionalism. Some who have embraced popular constitutionalism seem to assume that popular constitutional mobilization is a vehicle particularly well suited for advancing progressive constitutional claims. Alternately, some have assumed that popular constitutionalism has no particular ideological or partisan valence - that it is basically a neutral vehicle for advancing constitution claims of all kinds. But the …

Constitutional Torts, Over-Deterrence And Supervisory Liability After Iqbal (2010) (Symposium), Sheldon Nahmod

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My forthcoming Article is divided into the following parts. In Part I, I survey relevant aspects of the law of § 1983 and Bivens. Painting with a broad brush and for the most part descriptively, I maintain that the Court’s concern with over-deterrence has increasingly dominated constitutional torts. In Part II, I address the relevance of that concern for supervisory liability, set out what the Court said about supervisory liability in Iqbal and very briefly summarize the pre-Iqbal circuit consensus on supervisory liability. In Part III, I delve more deeply into the nature of supervisory liability and conclude that the …

Justice Souter On Government Speech, Sheldon Nahmod

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No abstract provided.

Global Constitutional Lawmaking, Sungjoon Cho

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Global Constitutional Lawmaking Abstract This article identifies a nascent phenomenon of “global constitutional lawmaking” in a recent WTO jurisprudence which struck down a certain calculative methodology (“zeroing”) in the antidumping area. The article interprets the Appellate Body’s uncharacteristic anti-zeroing hermeneutics, which departs from a traditional treaty interpretation under the Vienna Convention on the Law of Treaties and the past pro-zeroing GATT case law, as a “constitutional” turn of the WTO. The article argues that a positivist, inter-governmental mode of thinking, as is prevalent in other international organizations such as the United Nations, cannot fully expound this phenomenon. Critically, this turn …

Free Speech And Human Dignity, Steven J. Heyman

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No abstract provided.

Revisiting Youngstown: Against The View That Jackson's Concurrence Resolves The Relation Between Congress And The Commander-In-Chief, Mark D. Rosen

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Virtually all legal analysts believe that the tripartite framework from Justice Jackson’s Youngstown concurrence provides the correct framework for resolving contests between Congress (when it regulates pursuant to its powers to make rules and regulations for the land and naval forces, for instance) and the president when he acts pursuant to his commander-in-chief powers. This Article identifies a core assumption of the tripartite framework that, up to now, has not been recognized and that consequently has not been adequately analyzed or justified. While Jackson’s framework importantly recognizes that Congress’s regulatory powers may overlap with the president’s commander-in-chief powers, the framework …

Was Shelley V. Kraemer Incorrectly Decided? Some New Answers (Winner Of The 2006 Outstanding Scholarly Paper Award From The Association Of American Law Schools), Mark D. Rosen

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Shelley v. Kraemer, the 1948 decision that famously forbade state courts from enforcing racially restrictive covenants, has proven to be immensely difficult to justify. Under Shelley's attribution rationale, a contract's substantive provisions are to be attributed to the state when a court enforces the contract. Thus although Shelley ruled that racially restrictive covenants themselves were perfectly legal, it held that judicial enforcement of the covenants constituted state action that violated the Equal Protection Clause.

Shelley's attribution rationale meant that courts could not enforce contracts with provisions that could not have been constitutionally enacted by a legislature. This Article shows, however, …

Revisiting Youngstown: Against The View That Jackson's Concurrence Resolves The Relation Between Congress And The Commander-In-Chief, Mark D. Rosen

Mark D. Rosen

Virtually all legal analysts believe that the tripartite framework from Justice Jackson’s Youngstown concurrence provides the correct framework for resolving contests between Congress (when it regulates pursuant to its powers to make rules and regulations for the land and naval forces, for instance) and the president when he acts pursuant to his commander-in-chief powers. This Article identifies a core assumption of the tripartite framework that, up to now, has not been recognized and that consequently has not been adequately analyzed or justified. While Jackson’s framework importantly recognizes that Congress’s regulatory powers may overlap with the president’s commander-in-chief powers, the framework …

Why The Defense Of Marriage Act Is Not (Yet?) Unconstitutional: Lawrence, Full Faith And Credit, And The Many Societal Actors That Determine What The Constitution Requires, Mark D. Rosen

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This Article argues that the Defense of Marriage Act (DOMA) is not unconstitutional - at least not yet. DOMA provides that States need not recognize same-sex marriages (or judgments in connection with such marriages) performed in sister States. The Article first shows that the Supreme Court's recent opinion in Lawrence v. Texas, which struck down as unconstitutional state laws that criminalized sodomy, has not invalidated the DOMA. Lawrence is best understood as having left undecided the constitutional status of same-sex marriage, and the Article explains the benefits of the Court's having held back its constitutional judgment on this subject at …

Kramer's Popular Constitutionalism: A Quick Normative Assessment, Sarah K. Harding

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No abstract provided.

Constitutional Education For The People Themselves, Sheldon Nahmod

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No abstract provided.

Kramer's Popular Constitutionalism: A Quick Normative Assessment, Sarah K. Harding

Sarah K. Harding

No abstract provided.

A Brief History Of The Fifth Amendment Guarantee Against Double Jeopardy, David S. Rudstein

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No abstract provided.

The Surprisingly Strong Case For Tailoring Constitutional Principles, Mark D. Rosen

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Many constitutional principles apply to more than one level of government. This is true not only of Bill of Rights guarantees that have been incorporated against the States, but of many constitutional principles whose source lies outside of the Bill of Rights. The conventional wisdom is that such multi-level constitutional principles apply identically to all levels of government. The Article's thesis is that this One-Size-Fits-All approach is problematic because the different levels of government - federal, state, and local - sometimes are sufficiently different that a given constitutional principle may apply differently to each level. This Article critically examines an …

Institutional Context In Constitutional Law: A Critical Examination Of Term Limits, Judicial Campaign Codes, And Anti-Pornography Ordinances, Mark D. Rosen

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No abstract provided.

The Surprisingly Strong Case For Tailoring Constitutional Principles, Mark D. Rosen

Mark D. Rosen

Many constitutional principles apply to more than one level of government. This is true not only of Bill of Rights guarantees that have been incorporated against the States, but of many constitutional principles whose source lies outside of the Bill of Rights. The conventional wisdom is that such multi-level constitutional principles apply identically to all levels of government. The Article's thesis is that this One-Size-Fits-All approach is problematic because the different levels of government - federal, state, and local - sometimes are sufficiently different that a given constitutional principle may apply differently to each level. This Article critically examines an …

The Pledge As Sacred Political Ritual, Sheldon Nahmod

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No abstract provided.

Exporting The Constitution, Mark D. Rosen

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If a foreign government enacts a law that would be unconstitutional if passed in the United States, can a foreign judgment based on that law be enforced in an American court? For example, can an American court enforce an English judgment based on English defamation law, which is more pro-plaintiff than the First Amendment permits American law to be? The same issue was presented by recent litigation involving Yahoo!, where a federal district court considered whether it could enforce a French judgment based on a French law that regulated hate speech more broadly than the First American allows American polities …

Ideological Conflict And The First Amendment, Steven J. Heyman

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According to the prevailing view, constitutional interpretation ideally should consist in the development and application of a single, unified set of principles. This Essay challenges this position in the context of free speech jurisprudence. As the constitutional debates of 1787-91 show, the First Amendment and the Bill of Rights did not reflect a single view, but instead were intended to reconcile conflicting views on the proper relationship between liberty and government. In order to obtain the broad support necessary for adoption, the Bill of Rights was deliberately drafted on the level of general principles that could command a consensus. When …

Entrance, Voice And Exit: The Constitutional Bounds Of The Right Of Association, Evelyn Brody

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Despite the central role of organized groups as intermediary bodies in American society, the constitutional right of association is surprisingly recent and limited. As the Supreme Court struggles to define the bounds of 'the' freedom of association, it is time to take a critical look at a difficult set of questions. First, many private organizations engage in various types of selection criteria, but what subjects the Jaycees to State anti-discrimination laws but insulates the Boy Scouts of America? Second, the typical American nonprofit organization is a corporation that lacks both shareholders and members, so are there any 'associates' whose rights …

Extraterritoriality And Political Heterogeneity In American Federalism, Mark D. Rosen

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It is commonly understood that as a matter of federal law, states' substantive policies may diverge in respect of those matters that are not violative of the United States Constitution. As a practical matter, however, what degree of political heterogeneity among states is possible vis-a-vis substantive policies that are not unconstitutional? The answer to the question turns in large part on whether states, if they so choose, can regulate their citizens even when they are out-of-state. If they cannot, citizens can bypass their home state’s laws by simply traveling to a more legally permissive state to do there what is …

The Radical Possibility Of Limited Community-Based Interpretation Of The Constitution, Mark D. Rosen

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This Article explores a radical method under the U.S. Constitution for devolving extraordinary political power to select communities. The United States Constitution places limitations on the exercise of public power by sub-federal polities. When insular groups seek to exercise public power to govern themselves, however, there may be special constitutional limitations that are operative - doctrines that afford their local governments more options in the exercise of power than ordinary state and local governments enjoy. The Article shows that Congress may grant the communities the authority to construe designated provisions of the United States Constitution insofar as the provisions apply …