Constitutional Law Commons^™

Are Handguns A Matter Of Privacy?, Bret N. Bogenschneider

St. Mary's Law Journal

The thesis developed in this Article is that the Heller and Bruen cases involved primarily right-to-privacy concerns. By its terms, the Second Amendment involves the collective right to bear Arms in connection to regulated militia service and does not mention handguns. Handguns were not “ordinary military weapons” employed by a militia at the time of the American revolution under the originalist view. The Ninth and Fourteenth Amendments are more appropriate sources for an individual privacy right related to the possession of handguns for private purposes, such as for self-defense or suicide. However, a prohibition of handguns under this approach would …

Originalism And The Meaning Of "Twenty Dollars", Michael L. Smith

Faculty Articles

Originalism claims to provide answers, or at least assistance, for those hoping to interpret a Constitution filled with wide-ranging, morally loaded terminology. Originalists claim that looking to the original public meaning of the Constitution will constrain interpreters, maintain consistency and predictability in judicial decisions, and is faithful to ideals like democratic legitimacy. This essay responds with the inevitable, tough question: whether originalism can tell interpreters what the Seventh Amendment's reference to "twenty dollars" means--both as a matter of original meaning and for interpreters today.

While this appears to be an easy question, I demonstrate that rather than telling modern legal …

The American Tradition Of Self-Made Arms, Joseph G.S. Greenlee

St. Mary's Law Journal

No abstract provided.

The Dark Side Of Due Process: Part Iii, How To Use Irreverent Double-Talk To Speak Back To Bad Men, Joshua J. Schroeder

St. Mary's Law Journal

Most American lawyers take for granted that the common law established almost all the ordinary causes of action we know today. As Joseph Story’s Commentaries acknowledged, the common law is the basis of the entire U.S. system of law. Common law struggled with feudal and canon forms and eventually transformed them for the benefit of ordinary people even in the face of the most heinous travesties of the English and American past.

The Witch Judges of Salem, Massachusetts and the Parliament of Saints in England did not prevail through despotic radicalism to demolish the common law through codification. Legal positivism …

Answering The Call: A History Of The Emergency Power Doctrine In Texas And The United States, P. Elise Mclaren

St. Mary's Law Journal

During times of emergency, national and local government may be allowed to take otherwise impermissible action in the interest of health, safety, or national security. The prerequisites and limits to this power, however, are altogether unknown. Like the crises they aim to deflect, courts’ modern emergency power doctrines range from outright denial of any power of constitutional circumvention to their flagrant use. Concededly, courts’ approval of emergency powers has provided national and local government opportunities to quickly respond to emergency without pause for constituency approval, but how can one be sure the availability of autocratic power will not be abused? …

Judicial Federalism And The Appropriate Role Of The State Supreme Courts: A 20-Year (2000–2020) Study Of These Courts’ Interest Evaluations Of The Fruits And The Attenuation Doctrines, Dannye R. Holley Mr.

St. Mary's Law Journal

The current composition of the United States Supreme Court increases the probability that the Court will be more likely to side with the government with respect to identifying, evaluating, and reconciling the interest of the government versus those of the people when issues of “policing” reach the high court. This opens the door for state supreme court to independently assess individually and collectively these seemingly competing interests and potentially provide greater protections to the interest of the people.

This Article is a twenty-year study of dozens of state supreme court decisions made during the period of 2000–2020. The decisions focused …

Originalism And The Inseparability Of Decision Procedures From Interpretive Standards, Michael L. Smith

Faculty Articles

In his article, Originalism: Standard and Procedure, Professor Stephen E. Sachs describes a never-ending debate between originalism's advocates and critics. Originalists argue that certain historical facts determine the Constitution's meaning. But determining these facts is difficult, if not impossible for judges, attorneys, and the public. Sachs seeks to rise above this debate, arguing that the legal community should not expect originalism to offer a procedure for interpreting the Constitution. Instead, the legal community should treat originalism as a

standard to judge interpretations.

This Article takes issue with this approach. Originalism is not like other instances in law where statutes or …

The Militia: A Definition And Litmus Test, Marcus Armstrong

St. Mary's Law Journal

The United States Supreme Court, in its decision in Perpich v. Department of Defense, ruled that members of the National Guard are “troops” as that word is used in the Constitution. In doing so, the Court negated a long-standing, but obsolete, definition of the militia. However, this move away from an obsolete definition of the militia posed considerable difficulties that the Court was unable to rectify in its Perpich decision. In this Article, the author hopes to help rectify these difficulties by proposing four necessary characteristics that define the militia: first, the militia is a military force; second, the …

“We” The Jury: The Problem Of Peremptory Strikes As Illustrated By Flowers V. Mississippi, Kayley A. Viteo

St. Mary's Law Journal

Abstract forthcoming.

Evolution Of Legal Topics, Rights And Obligations In The United States, Roberto Rosas

Faculty Articles

What new constitutional rights does the American Legal system have to offer? The United States Constitution is a document that continues to be interpreted every year. The Supreme Court hears recent cases with the purpose of interpreting the meaning of the Constitution. Since the creation of the Supreme Court, the Constitution has been analyzed in different ways – some interpretations lasting decades and some amendments going through changes depending on the different ideologies of the Justices on the Court.

This article discusses some of the rights established by the Supreme Court from 2016 to 2019 and provides the background as …

Can We Have Our Cake And Eat It Too?: What Masterpiece Cakeshop And Religious Refusals Mean For Texas’S Adoption Bill, Nadeen Abou-Hossa

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

Peña-Rodriguez V. Colorado: Carving Out A Racial-Bias Exception To The No-Impeachment Rule, John Austin Morales

St. Mary's Law Journal

The Sixth Amendment safeguards an accused in criminal proceedings and affords them “the right to a speedy and public trial, by an impartial jury.” Consistent with this right, the no-impeachment rule prohibits a juror from testifying after a verdict has been handed down about the jurors’ deliberations. While there are limited exceptions to the no-impeachment rule, juror expressed racial bias is not one of them. When presented with the dilemma of a juror using racial bias in deliberations, courts must weigh two competing doctrines that serve as the foundation to our judicial system: (1) affording a defendant his or her …

Rules To Impeach By - What It Takes To Remove A President, David Dittfurth

Faculty Articles

Professor David Dittfurth explains the steps that must be taken by Congress to impeach a president or other official.

Undocumented Citizens Of The United States: The Repercussions Of Denying Birth Certificates, Anna L. Lichtenberger

St. Mary's Law Journal

Abstract forthcoming

The Texas Supreme Court Retreats From Protecting Texas Students, Albert Kauffman

The Scholar: St. Mary's Law Review on Race and Social Justice

This Article criticizes the 2016 Texas Supreme Court school finance decision, the latest of seven decisions starting in 1989, for its disregard of both the record in the case and the realities of the Texas Constitution and Texas politics. The Article also focuses on how standards for reviewing legislation have changed and the Texas Supreme Court's irrational and unfounded retreat to the "money doesn't make a difference" theory of school finance. Finally, the Article recommends a return to an objective, comprehensible, enforceable and constitutional system of review, and concludes with a prayer for holdings that recognize the inequities of the …

Prior Sexual Misconduct Evidence In State Courts: Constitutional And Common Law Challenges, Michael L. Smith

Faculty Articles

Prosecuting sex crimes is a sensitive, challenging process, and many who commit these crimes end up going unpunished. While a defendant may have a history of prior sexual misconduct, the rules of evidence in most states and at the federal level generally prohibit the introduction of prior misconduct to show a defendant's propensity to commit a present crime. In response, the federal government and numerous state legislatures have adopted rules of evidence that permit the introduction of prior sexual misconduct in cases where a defendant is charged with a sexual crime.

While commentators have written in great detail about federal …

Developing Environmental Law For All Citizens, Patricia W. Moore, Eliana S. Pereira, Gillian Duggin

Faculty Articles

On 20 May 2002, Timor-Leste became a country. Its Constitution, which came into force on 20 May 2002, is based on civil law, with many similarities to Portugal's legal system. The Constitution also laid the foundation for environmental law, which the government has been developing ever since. This overview of the development of environmental law in Timor-Leste describes the constitutional provisions that are the source of environmental law in the country; presents the policy basis for environmental law; reviews the legal instruments governing the environment that the government has adopted since 2002; introduces draft laws under consideration at the end …

Regulating Law Enforcement's Use Of Drones: The Need For State Legislation, Michael L. Smith

Faculty Articles

The recent rise of domestic drone technology has prompted privacy advocates and members of the public to call for the regulation of the use of drones by law enforcement officers. Numerous states have proposed legislation to regulate government drone use, and thirteen have passed laws that restrict the use of drones by law enforcement agencies. Despite the activity in state legislatures, commentary on drones tends to focus on how courts, rather than legislative bodies, can restrict the government's use of drones. Commentators call for wider Fourth Amendment protections that would limit government surveillance. In the process, in-depth analysis of state …

Universities As Constitutional Law Makers (And Other Hidden Actors In Our Constitutional Orders), Adam J. Macleod

Faculty Articles

In the stories told by opinion makers and many law professors, American constitutional law is concerned with two things-individual rights and the powers of government-and it is settled by the Court, which was established by Article III of our national Constitution. In those now-familiar tales, the United States Supreme Court creates constitutional law when heroic individuals assert their fundamental rights against an overreaching state and when Congress, state legislatures, and executive agencies are called upon to justify their expert enactments to an overreaching judiciary. To settle these constitutional disputes the Court looks either to the text of the written Constitution …

Second Amendment Challenges To Student Housing Firearms Bans: The Strength Of The Home Analogy, Michael L. Smith

Faculty Articles

Public colleges and universities or state governments often ban the possession of firearms on public university or college property. These bans typically extend to student housing. While much has been written about campus bans on the carrying of concealed firearms, the topic of gun bans in the student housing context has been largely unaddressed in Second Amendment literature. This Comment seeks to fill that gap by evaluating potential student challenges to firearms bans in the student housing context in light of potential standards of review courts may apply and in light of the U.S. Supreme Court's decisions in District of …

Writing In The Margins: Brennan, Marshall, And The Inherent Weaknesses Of Liberal Judicial Decision-Making (Essay), Donna F. Coltharp

Faculty Articles

No abstract provided.