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Hollow Hopes And Exaggerated Fears: The Canon/Anticanon In Context, Mark A. Graber Dec 2011

Hollow Hopes And Exaggerated Fears: The Canon/Anticanon In Context, Mark A. Graber

Faculty Scholarship

Students of American constitutionalism should add constitutional decisions made by elected officials to the constitutional canon and the constitutional anticanon. Neither the canonical nor the anticanonical constitutional decisions by the Supreme Court have produced the wonderful results or horrible evils sometimes attributed to them. In many cases, elected officials made contemporaneous constitutional decisions that had as much influence as the celebrated or condemned judicial rulings. More often than not, judicial rulings matter more as a result of changing the political dynamics than by directly changing public policy. Law students and others interested in constitutional change, for these reasons, need to ...


Religious Documents And The Establishment Clause, Brian Sites Oct 2011

Religious Documents And The Establishment Clause, Brian Sites

Faculty Scholarship

A priest, a rabbi, and an imam walk into a contract lawyer's office. Fortunately, this is not the opening of a lawyer joke, but it might well be the prelude to a complicated constitutional question about the interaction of the First Amendment and contract law. Pastors, priests, rabbis, imams, religious schools, churches, religious businesses, and a wealth of faith-based groups all enter into contractual agreements. Not surprisingly, these agreements often contain religious language, and sometimes they even hinge on provisions invoking expressly religious concepts. Religious documents come in a variety of forms, including marriage contracts, disposition of property documents ...


Covenants For The Sword, Alice Ristroph Oct 2011

Covenants For The Sword, Alice Ristroph

Faculty Scholarship

No abstract provided.


Bad News For Professor Koppelman: The Incidental Unconstitutionality Of The Individual Mandate, Gary Lawson, David Kopel Sep 2011

Bad News For Professor Koppelman: The Incidental Unconstitutionality Of The Individual Mandate, Gary Lawson, David Kopel

Faculty Scholarship

In "Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform," Professor Andrew Koppelman concludes that the individual mandate in the Patient Protection and Affordable Care Act (PPACA) is constitutionally authorized as a law "necessary and proper for carrying into Execution" other aspects of the PPACA. However, the Necessary and Proper Clause rather plainly does not authorize the individual mandate.

The Necessary and Proper Clause incorporates basic norms drawn from eighteenth-century agency law, administrative law, and corporate law. From agency law, the clause embodies the venerable doctrine of principals and incidents: a law enacted under the clause must ...


Playing Well With Others -- But Still Winning: Chief Justice Roberts, Precedent, And The Possibilities Of A Multi Member Court, William D. Araiza Jul 2011

Playing Well With Others -- But Still Winning: Chief Justice Roberts, Precedent, And The Possibilities Of A Multi Member Court, William D. Araiza

Faculty Scholarship

No abstract provided.


Framing The Fourth, Tracey Maclin Apr 2011

Framing The Fourth, Tracey Maclin

Faculty Scholarship

History is again an important element of the Supreme Court’s Fourth Amendment analysis. In Wyoming v. Houghton, Justice Scalia’s opinion for the Court announced that a historical inquiry is the starting point for every Fourth Amendment case. William Cuddihy’s book on the origins and original meaning of the Fourth Amendment will undoubtedly assist the Justices (and everyone else) in understanding the history of search and seizure law.

Cuddihy’s historical analysis is unprecedented. As Justice O’Connor has described it, Cuddihy’s work is “one of the most exhaustive analyses of the original meaning of the Fourth ...


The Anatomy Of A Search: Intrusiveness And The Fourth Amendment, Renée Mcdonald Hutchins Mar 2011

The Anatomy Of A Search: Intrusiveness And The Fourth Amendment, Renée Mcdonald Hutchins

Faculty Scholarship

No abstract provided.


The Fifth Freedom: The Constitutional Duty To Provide Public Education, Areto Imoukhuede Jan 2011

The Fifth Freedom: The Constitutional Duty To Provide Public Education, Areto Imoukhuede

Faculty Scholarship

“The fifth freedom is freedom from ignorance. It means that every[one], everywhere, should be free to develop his [or her] talents to their full potential – unhampered by arbitrary barriers of race or birth or income.” Lyndon B. Johnson This article argues that education is a fundamental human right that the U.S. Supreme Court has failed to recognize because of the Court’s bias towards negative, rather than positive rights. Viewed from the limited perspective of rights as liberties, the concern with declaring a fundamental right to education is that education legislation would be strictly scrutinized, thus causing the ...


Prophylactic Rules And State Constitutionalism, Arthur Leavens Jan 2011

Prophylactic Rules And State Constitutionalism, Arthur Leavens

Faculty Scholarship

When the post-Warren Supreme Court began trimming back individual rights, some state courts responded by interpreting analogous or cognate state constitutional provisions to find broader protections, prompting a vigorous debate concerning the legitimacy and interpretive methodology of such state constitutionalism. How can two constitutional provisions, sharing the same language and history, mean different things? This Article looks at that question in the context of so-called prophylactic rules—those specific constitutional rules meant to guide the implementation of broader federal constitutional principles. Miranda ’s warning-and-waiver construct is probably the best known prophylactic rule, but such rules abound, particularly in criminal procedure ...


State Constitutionalism: State-Court Deference Or Dissonance?, Arthur Leavens Jan 2011

State Constitutionalism: State-Court Deference Or Dissonance?, Arthur Leavens

Faculty Scholarship

This Article focuses on the debate concerning state constitutional expansion of criminal-procedure protections. It examines two such rights: (1) the protection against unreasonable searches and seizures; and (2) the right to the assistance of counsel in defending a criminal case. Each of these rights is embodied in both the federal and most, if not all, state constitutions. Each right is thus doubly applicable to the states, first, through the federal version by virtue of its incorporation into the Fourteenth Amendment’s due process protection and, second, through the state constitution’s version of the cognate right. So focused, the question ...


No Virtue In Passivity: The Supreme Court And Ali Al-Marri, Bruce K. Miller Jan 2011

No Virtue In Passivity: The Supreme Court And Ali Al-Marri, Bruce K. Miller

Faculty Scholarship

This Article discusses the case of Al-Marri v. Spagone, which the U.S. Supreme Court unjustifiably dismissed as moot on March 6, 2009. By dismissing this appeal, the Court ignored its duty to determine whether the military detention of a non-citizen residing lawfully in the United States was authorized by law. And that failure has in turn contributed significantly, and unnecessarily, to the cloud of legal uncertainty which now hovers over the preventive detention measures adopted and proposed by the Obama Administration.


Brady-Based Prosecutorial Misconduct Claims, Buckley, And The Arkansas Coram Nobis Remedy, J. Thomas Sullivan Jan 2011

Brady-Based Prosecutorial Misconduct Claims, Buckley, And The Arkansas Coram Nobis Remedy, J. Thomas Sullivan

Faculty Scholarship

No abstract provided.


Money Talks But It Isn't Speech, Deborah Hellman Jan 2011

Money Talks But It Isn't Speech, Deborah Hellman

Faculty Scholarship

This Article challenges the central premise of our campaign finance law, namely that restrictions on giving and spending money constitute restrictions on speech and thus can only be justified by compelling governmental interests. This claim has become so embedded in constitutional doctrine that in the most recent Supreme Court case in this area, Citizens United v. FEC, the majority asserts it without discussion or argument. This claim is often defended on the grounds that money is important or necessary for speech. While money surely facilitates speech, money also facilitates the exercise of many other constitutional rights. By looking at these ...


Money And Rights, Deborah Hellman Jan 2011

Money And Rights, Deborah Hellman

Faculty Scholarship

This chapter looks at when constitutionally protected rights are interpreted by courts to include a concomitant right to spend money to effectuate the underlying right and when they are not. It concludes that there are two strands in our constitutional law: the Integral Strand, in which a right includes the right to spend money and the Blocked Strand, in which it does not.


Constitutional Limitations On Land Use Controls, Environmental Regulations And Governmental Exactions (2011 Edition), Garrett Power Jan 2011

Constitutional Limitations On Land Use Controls, Environmental Regulations And Governmental Exactions (2011 Edition), Garrett Power

Faculty Scholarship

This electronic book is published in a searchable PDF format as a part of the E-scholarship Repository of the University of Maryland School of Law. It is an “open content” casebook intended for classroom use in courses in Land Use Control, Environmental Law and Constitutional Law. It consists of cases carefully selected from the two hundred years of American constitutional history which address the clash between public sovereignty and private property. It considers both the personal right to liberty and the personal right in property. The text consists of non-copyrighted material and readers are free to use it or re-mix ...


Who's In Charge? Does The President Have Directive Authority Over Agency Regulatory Decisions?, Robert V. Percival Jan 2011

Who's In Charge? Does The President Have Directive Authority Over Agency Regulatory Decisions?, Robert V. Percival

Faculty Scholarship

No abstract provided.


Original Habeas Redux, Lee B. Kovarsky Jan 2011

Original Habeas Redux, Lee B. Kovarsky

Faculty Scholarship

This article explores what is perhaps the Supreme Court’s most exotic appellate power— its authority to issue (inaptly-named) “original” writs of habeas corpus. Although I have been working on Original Habeas Redux for some time, the Troy Davis case has recently thrust this topic into the national spotlight. In Davis (2009), the Supreme Court exercised, for the first time in over forty years, its power to transfer an original habeas petition to a district court for merits adjudication. Having collected and tabulated two decades of new data, I argue that Davis is not a blip in an otherwise constant ...


From Racial Discrimination To Separate But Equal: The Common Law Impact Of The Thirteenth Amendment, David S. Bogen Jan 2011

From Racial Discrimination To Separate But Equal: The Common Law Impact Of The Thirteenth Amendment, David S. Bogen

Faculty Scholarship

Many forces produced the shift in the United States from the acceptance of slavery and racial inequality to the doctrine of separate but equal. The 13th Amendment abolished slavery and authorized legislation to enforce that abolition, but these well-known direct effects are only part of the story. This paper examines the Amendment’s indirect impact on racial discrimination – furthering a standard of equality in public relationships without threatening the existing racial separation. The Amendment is evidence of a change in values that justified overturning prior decisions, and abolition created a new context for legislation and common law decisions. It reinforced ...


Prosecution Without Representation, Douglas L. Colbert Jan 2011

Prosecution Without Representation, Douglas L. Colbert

Faculty Scholarship

Nearly 50 years after the Supreme Court's landmark ruling in Gideon v. Wainwright established indigent defendants' constitutional right to counsel, poor people throughout the country still remain without a lawyer when first appearing before a judicial officer who determines pretrial liberty or bail. Absent counsel, low-income defendants unable to afford bail remain in jail for periods ranging from 3-70 days until assigned counsel appears in-court. Examining Walter Rothgery's wrongful prosecution, the article includes a national survey that informs readers about the limited right to counsel at the initial appearance and the extent of delay in each of the ...


Money And Rights, Deborah Hellman Jan 2011

Money And Rights, Deborah Hellman

Faculty Scholarship

This article looks at when constitutionally protected rights are interpreted by courts to include a concomitant right to spend money to effectuate the underlying right and when they are not. It concludes that there are two strands in our constitutional law: the Integral Strand, in which a right includes the right to spend money and the Blocked Strand, in which it does not.


Constitutional Democracy, Human Dignity, And Entrenched Evil, Mark A. Graber Jan 2011

Constitutional Democracy, Human Dignity, And Entrenched Evil, Mark A. Graber

Faculty Scholarship

The following essay pays tribute to Sandy Levinson's thoughts on constitutional compromises by paying tribute to the thoughts on constitutional compromises by our common mentor, Walter Murphy. Rather than directly engage in a dialogue with Compromise and Constitutionalism, the analysis below joins the preexisting dalogue between Professors Levinson and Murphy on how to construct a decent polity among people who have deep disputes over what constitutes political decency. Walter Murphy is unfortunately largely known to legal audiences only through the work of such outstanding mentees as Sandy Levinson, Jim Fleming, Christopher Eisgruber, Andrew Koppelman, Jennifer Nedelsky, and Robert George ...


Plus Or Minus One: The Thirteenth And Fourteenth Amendments, Mark A. Graber Jan 2011

Plus Or Minus One: The Thirteenth And Fourteenth Amendments, Mark A. Graber

Faculty Scholarship

The consensus that the Fourteenth Amendment incorporates the Thirteenth Amendment has come under sharp criticism in recent years. Several new works suggest that the Thirteenth Amendment, properly interpreted, protects some substantive rights not protected by the Fourteenth Amendment. Some of this scholarship is undoubtedly motivated by an effort to avoid hostile Supreme Court precedents. Nevertheless, more seems to be going on than mere litigation strategy. Scholars detected different rights and regime principles in the Thirteenth Amendment than they find in the Fourteenth Amendment. The 2011 Maryland Constitutional Law Schoomze, to which this is an introduction, provided an opportunity for law ...


Habeas Verité, Lee B. Kovarsky Jan 2011

Habeas Verité, Lee B. Kovarsky

Faculty Scholarship

Three recent books from varied academic disciplines demonstrate that habeas is as much about power as it is about liberty - the power of some judges over other magistrates, the power of the judiciary over coordinagte governing institutions, and the power of dominant political coalitions ovefr the opposition.


Labor Values Are First Amendment Values: Why Union Comprehensive Campaigns Are Protected Speech, Charlotte Garden Jan 2011

Labor Values Are First Amendment Values: Why Union Comprehensive Campaigns Are Protected Speech, Charlotte Garden

Faculty Scholarship

Corporate targets of union “comprehensive campaigns” increasingly have responded by filing civil Racketeer Influenced and Corrupt Organizations Act (RICO) lawsuits alleging that unions’ speech and petitioning activities are extortionate. These lawsuits are the descendants of the Supreme Court’s unexplained treatment of much labor speech as less worthy of protection than other types of speech. Starting from the position that speech that promotes democratic discourse deserves top-tier First Amendment protection, this article argues that labor speech--which plays a unique role in civil society--should be on an equal footing with civil rights speech. Thus, even if union advocacy qualifies as legal ...


Retail Rebellion And The Second Amendment, Darrell A. H. Miller Jan 2011

Retail Rebellion And The Second Amendment, Darrell A. H. Miller

Faculty Scholarship

When, if ever, is there a Second Amendment right to kill a cop? This piece seeks to answer that question. In District of Columbia v. Heller, the Supreme Court held that the Second Amendment codifies a natural right to keep and bear arms for self-defense. That right to self-defense extends to both private and public threats, including self-defense against agents of a tyrannical government. Moreover, the right is individual. Individuals -- not just communities -- have the right to protect themselves from public violence. Individuals -- not just militias -- have the right to defend themselves against tyranny. In McDonald v. City of Chicago ...


Amicus Brief Of Antitrust Professors And Scholars, Hosanna-Tabor Evangelical Lutheran Church And School V. Eeoc, Barak D. Richman, Harry First Jan 2011

Amicus Brief Of Antitrust Professors And Scholars, Hosanna-Tabor Evangelical Lutheran Church And School V. Eeoc, Barak D. Richman, Harry First

Faculty Scholarship

Professional associations of clergy have invoked the ministerial exception to claim immunity from the antitrust laws. In claiming immunity, these clergy feel entitled to construct cartel-like arrangements that, absent such immunity, would violate section 1 of the Sherman Act, 15 U.S.C. § 1 (2006). The question presented in this case characterizes the ministerial exception as a bar to most “employment-related lawsuits brought against religious organizations by employees performing religious functions.” Such a characterization leaves open the possibility that “religious organizations” could include professional associations of clergy, in addition to churches, religious schools, or other employers of clergy, and “employment-related ...


Transforming Property Into Speech, Joseph Blocher Jan 2011

Transforming Property Into Speech, Joseph Blocher

Faculty Scholarship

No abstract provided.


The Conflicted Assumptions Of Modern Constitutional Law, H. Jefferson Powell Jan 2011

The Conflicted Assumptions Of Modern Constitutional Law, H. Jefferson Powell

Faculty Scholarship

Contribution to Symposium - The Nature of Judicial Authority: A Reflection on Philip Hamburger's Law and Judicial Duty


Constitutionalizing Local Politics, Joseph Blocher, Ilan Graff Jan 2011

Constitutionalizing Local Politics, Joseph Blocher, Ilan Graff

Faculty Scholarship

No abstract provided.


Reverse Incorporation Of State Constitutional Law, Joseph Blocher Jan 2011

Reverse Incorporation Of State Constitutional Law, Joseph Blocher

Faculty Scholarship

State supreme courts and the United States Supreme Court are the independent and final arbiters of their respective constitutions, and may therefore take different approaches to analogous state and federal constitutional issues. Such issues arise often, because the documents were modeled on each other and share many of the same guarantees. In answering them, state courts have, as a matter of practice, generally adopted federal constitutional doctrine as their own. Federal courts, by contrast, have largely ignored state constitutional law when interpreting the federal constitution. In McDonald v. Chicago, to take only the most recent example, the Court declined to ...