Law Commons^™

Supreme Court Update: 2012-2013 Term (Civil Cases In Constitutional Law), Wilson Huhn

Wilson R. Huhn

During 2012-2013 the Supreme Court handed down several significant constitutional law, including United States v. Windsor (striking down Section 3 of the federal Defense of Marriage Act) and Shelby County v. Holder (striking down Section 4 of the Voting Rights Act). These and other decisions are summarized in this presentation.

Realism Over Formalism And The Presumption Of Constitutionality: Chief Justice Roberts’ Opinion Upholding The Individual Mandate, Wilson Huhn

Wilson R. Huhn

Chief Justice John Roberts upheld the individual mandate of the Affordable Care Act because he rejected formalism and embraced realism in constitutional analysis, and because he deferred to Congress, acknowledging its right to make policy choices.

Slaves To Contradictions: 13 Myths That Sustained Slavery, Wilson Huhn

Wilson R. Huhn

People have a fundamental need to think of themselves as “good people.” To achieve this we tell each other stories – we create myths – about ourselves and our society. These myths may be true or they may be false. The more discordant a myth is with reality, the more difficult it is to convince people to embrace it. In such cases to sustain the illusion of truth it may be necessary to develop an entire mythology – an integrated web of mutually supporting stories. This paper explores the system of myths that sustained the institution of slavery in the …

The 2011-2012 Supreme Court Term: Decisions In Constitutional Law, Wilson Huhn

Wilson R. Huhn

This presentation reviews the principal decisions of the Supreme Court in the field of Constitutional Law during the 2011-2012 Term of Court. The presentation primarily focuses on the Court's decisions involving the Arizona immigration law (SB 1070), the federal Stolen Valor Act, the "ministerial exception" to the anti-discrimination laws, and above all the Patient Protection and Affordable Care Act.

Same-Sex Marriage Litigation Update - September 17, 2012, Wilson Huhn

Wilson R. Huhn

Same-sex marriage cases are reaching the federal circuit courts and may be heard by the Supreme Court in the near future. This presentation summarizes the status of same-sex marriage litigation.

Realism Over Formalism And The Presumption Of Constitutionality: Chief Justice Roberts’ Opinion Upholding The Individual Mandate, Wilson Huhn

Wilson R. Huhn

In National Federation of Independent Business v. Sebelius Chief Justice John Roberts cast the deciding vote to uphold the individual mandate of the Affordable Care Act. Speaking for the Court in Part III-C of his opinion, Roberts found that the individual mandate was properly enacted pursuant to the General Welfare Clause. Two aspects of his opinion in particular drove this result. In deciding whether the individual mandate constitutes a “tax” within the meaning of the Constitution, the Chief Justice engaged in realistic analysis rather than legal formalism. In addition, Roberts reasoned that, if fairly possible, the statute had to be …

Excerpts From Chief Justice Roberts' Opinion In Nfib V. Sebelius, Wilson Huhn

Wilson R. Huhn

In NFIB v. Sebelius the Supreme Court upheld the constitutionality of all but one of the provisions of the Patient Protection and Affordable Care Act. The opinion of Chief Justice Roberts is the controlling opinion in all respects. This is an editted summary of the Chief Justice's opinion.

The Future Interpretation Of The Constitution As A Result Of The Reelection Of President Barack Obama, Wilson Huhn

Wilson R. Huhn

On November 6, 2012, Barack Obama was reelected President of the United States. What effect will this have on the future interpretation of the Constitution? This article identifies 19 areas of constitutional law that would likely change if one more liberal justice is appointed to the Supreme Court.

The Decision Of The Supreme Court On The Constitutionality Of The Ppaca, Wilson Huhn

Wilson R. Huhn

This powerpoint presentation summarizes the opinion of Chief Justice Roberts in NFIB v. Sebelius, upholding the constitutionality of the Patient Protection and Affordable Care Act

The Future Interpretation Of The Constitution, Wilson Huhn

Wilson R. Huhn

On November 6, 2012, Barack Obama was reelected President of the United States. What effect will this have on the future interpretation of the Constitution? This article identifies 19 areas of constitutional law that would likely change if one more liberal justice is appointed to the Supreme Court.

The Growing Acceptance And Legal Recognition Of Same-Sex Marriage In America Constitutes A Victory For Reality-Based Thinking, Wilson Huhn

Wilson R. Huhn

During the 20th century “pragmatism” emerged as the leading American philosophy and policy analysis – also called “legal realism” – became the dominant method of interpreting American law. The lightning speed with which same-sex marriage is gaining acceptance in the United States is due to the fact that Americans embrace realistic rather than ideological forms of thinking, and the growing recognition of same-sex marriage in the law is due to the fact that we interpret our Constitution in accordance with realistic analysis.

The Civil Rights Movement And The Constitution, Wilson Huhn

Wilson R. Huhn

This presentation of March 3, 2012, describes the influence that the Civil Rights Movement has had on the interpretation of the Constitution. The Civil Rights Movement not only broadened our understanding of the principle of equality under Equal Protection, it also expanded opportunities for Freedom of Expression and the Right to Privacy. In addition, the Civil Rights Movement stimulated the courts to recognize the power of Congress to enact legislation under the Commerce Clause and Section 5 of the 14th Amendment. Finally, as a result of the Civil Rights Movement, the Supreme Court has moved to a more realistic, consequentialist …

The Constitutionality Of The Patient Protection And Affordable Care Act, Wilson Huhn

Wilson R. Huhn

This presentation of April 26, 2012 presents data explaining why universal health care coverage is necessary, what the Patient Protection and Affordable Care Act will accomplish, and the constitutional challenges that the Supreme Court is considering.

Constantly Approximating Popular Sovereignty: Seven Fundamental Principles Of Constitutional Law, Wilson Huhn

Wilson R. Huhn

The concept of “popular sovereignty” is not a simple, singular, unified concept; instead, as it has developed in the United States, popular sovereignty embraces the following seven fundamental principles:

1. The Rule of Law. The people are sovereign and their will is expressed through law.

2. Limited Government. The people are sovereign, not the government. By adopting the Constitution the people created the government, imposed limits upon its power, and divided that power among different levels and branches.

3. Inalienable Rights. Every individual person is sovereign in the sense that he or she retains certain inalienable rights, which the government …

The Influence Of Abraham Lincoln On The Supreme Court’S Interpretation Of The Constitutional Principles Of Liberty And Equality, Wilson Huhn

Wilson R. Huhn

The purpose of this article is to demonstrate that the Supreme Court has embraced Abraham Lincoln’s transcendent understanding of the principles of liberty and equality – transcendent in the sense that these principles are considered to be timeless, universal, and morally binding. The article briefly summarizes the Transcendental Movement, sets forth Lincoln’s understanding of liberty and equality, and describes how, in the modern era, the Supreme Court has “constantly approximated” the principles that Lincoln believed that this country is dedicated to.

Legacy Of Slaughterhouse. Bradwell, And Cruikshank In Constitutional Interpretation, Wilson Huhn

Wilson R. Huhn

The Slaughterhouse Cases, Bradwell v. Illinois, and Cruikshank v. United States, which were all decided between 1873 and 1876, were the first cases in which the Supreme Court interpreted the 14th Amendment. The reasoning and holdings of the Supreme Court in those cases have affected constitutional interpretation in ways which are both profound and unfortunate. The conclusions that the Court drew about the meaning of the 14th Amendment shortly after its adoption were contrary to the intent of the framers of that Amendment and a betrayal of the sacrifices which had been made by the people of that period. In …

Ten Questions On Gay Rights And Freedom Of Religion, Wilson Huhn

Wilson R. Huhn

In my opinion most of the legal and social problems that arise under the Constitution stem from the belief, held by some people, that they are better than other people. They do not hate anyone. They simply believe that they are superior and that the law ought to treat them better than the other group. This is true of whites who think they are superior to blacks, men who think they are superior to women, and heterosexuals who think they are superior to homosexuals.

People have often justified these types of beliefs by appeal to religion and have attempted to …

Cross Burning A Hate Speech Under The First Amendment To The United States Constitution, Wilson Huhn

Wilson R. Huhn

Under the First Amendment of the Constitution of the United States, ‘hate speech’ is constitutionally protected unless the circumstances of the case indicate that the speaker intended to threaten violence or provoke an immediate act of violence. While a person may be removed from a classroom or fired from employment for engaging in ‘hate speech’, under the First Amendment a person may be charged with a crime only if their statements constitute a threat or provocation of immediate violence. Moreover, even in cases where it is clear that a person is threatening violence or that violence is imminent, the person …

Waterboarding Is Illegal, Wilson R. Huhn

Wilson R. Huhn

In his 2007 confirmation hearing before the Senate Judiciary Committee considering his nomination to be Attorney General of the United States, Judge Michael Mukasey refused to address the legality of waterboarding. In my opinion there is no reasonable dispute about this matter. The laws of the United States make waterboarding unlawful in no uncertain terms.

Congress Has The Power To Enforce The Bill Of Rights Against The Federal Government: Therefore Fisa Is Constitutional And The President's Terrorist Surveillance Program Is Illegal, Wilson R. Huhn

Wilson R. Huhn

The principal point of this Article is that Congress has plenary authority to enforce the Bill of Rights against the federal government. Although this precept is a fundamental one, neither the Supreme Court nor legal scholars have articulated this point in clear, simple, and direct terms. The Supreme Court does not have a monopoly on the Bill of Rights. Congress, too, has constitutional authority to interpret our rights and to enforce or enlarge them as against the actions of the federal government.

Congress exercised its power to protect the constitutional rights of American citizens when it enacted the Foreign Intelligence …

Ohio Issue 1 Is Unconstitutional, Wilson R. Huhn

Wilson R. Huhn

This article discusses the constitutionality of Ohio Issue 1, an amendment to the state constitution that was adopted in a referendum by the people of the State of Ohio in November, 2004. The article consists of two parts. Part I sets forth arguments in support of the proposition that Ohio Issue 1 is unconstitutional. Part II sets forth arguments that have been or may be raised in support of Ohio Issue 1, and responds to each of those arguments.

Assessing The Constitutionality Of Laws That Are Both Content Based And Content Neutral, Wilson R. Huhn

Wilson R. Huhn

Such a multi-faceted analysis cannot be conflated into two dimensions. Whatever the allure of absolute doctrines, it is just too simple to declare expression "protected" or "unprotected" or to proclaim a regulation "content-based" or "content-neutral." John Paul Stevens (1992)

American legal doctrine evolved from a formalistic categorical approach that dominated legal thinking during the nineteenth century to a realistic balancing approach that developed over the course of the twentieth century. A similar process is now occurring in the constitutional doctrine governing freedom of expression-a process that may culminate in the adoption of what United States Supreme Court Justice John Paul …