Constitutional Law Commons^™

Platforms And The Fall Of The Fourth Estate: Looking Beyond The First Amendment To Protect Watchdog Journalism, Erin C. Carroll

Maryland Law Review

No abstract provided.

Constitutional Crisis And Constitutional Rot, Jack M. Balkin

Maryland Law Review

No abstract provided.

Why Donald Trump Is Not Andrew Jackson (And Why That Matters For American Constitutional Democracy), Eric Lomazoff

Maryland Law Review

No abstract provided.

Reflections On The Aftermath Of Election 2016, Maxwell L. Stearns

Maryland Law Review

No abstract provided.

Threats To Democratic Stability: Comparing The Elections Of 2016 And 1860, Stuart Chinn

Maryland Law Review

No abstract provided.

The Collapse Of The New Deal Conceptual Universe: The Schmooze Project, Mark A. Graber

Maryland Law Review

No abstract provided.

Trump, Trust, And The Future Of The Constitutional Order, Stephen M. Griffin

Maryland Law Review

Sometimes constitutions fail. The unprecedented election of Donald Trump, a populist insurgent who lacks the prior political experience or military service of all presidents before him, is such a sharp break in American historical experience that it raises questions as to whether something is deeply amiss with the constitutional order.

Constitutional failure is not uncommon. A path-breaking global study of national constitutions shows that on average, they last only nineteen years. The U.S. Constitution is an uncommon outlier and, as such, is accounted by many a long-running success story. But could a bell be tolling for American constitutionalism?

In this …

A Jewish And (Declining) Democratic State? Constitutional Retrogression In Israel, Nadiv Mordechay, Yaniv Roznai

Maryland Law Review

This Article describes and analyzes an increasing trend of contemporary democratic hybridization and constitutional retrogression in Israel. We seek to reconstruct the Israeli case as a state of affairs where a strong leadership, coupled with rising political elites, are leading to a wide-ranging political risk to the constitutional liberal-democracy, to an erosion of its democratic institutions, and to an incremental democratic backslide.

This Article contributes to the evolving recent literature in comparative constitutional law on the constitutional implications of democratic retrogression by characterizing the Israeli case as one that might be categorized as constitutional retrogression. This, as we argue, carries …

How A Court Becomes Supreme: Defending The Constitution From Unconstitutional Amendments, Richard Albert

Maryland Law Review

High courts around the world have increasingly invalidated constitutional amendments in defense of their view of democracy, answering in the affirmative what was once a paradoxical question with no obvious answer: can a constitutional amendment be unconstitutional? In the United States, however, the Supreme Court has yet to articulate a theory or doctrine of unconstitutional constitutional amendment. Faced with a constitutional amendment that would challenge the liberal democratic values of American constitutionalism—for instance an amendment restricting political speech or establishing a national religion—the Court would be left without a strategy or vocabulary to protect the foundations of constitutional democracy. In …

The Fragility Of Constitutional Democracy, Yasmin Dawood

Maryland Law Review

Is the survival of constitutional democracy in America at serious risk? Given the actions of the Trump administration, and given the decline of democracy and concomitant rise of authoritarianism the world over, there is genuine cause for alarm. In light of these fears, it is worth remembering that the authors of The Federalist Papers were notably pessimistic about the survival chances of republican government. To what extent have their constitutional design innovations contributed to present woes, and conversely, to what extent will the Constitution ensure the survival of democracy? This Essay argues that while the design of the Constitution is …

Alternatives To Liberal Constitutional Democracy, David S. Law

Maryland Law Review

The global appeal of liberal constitutional democracy—defined as a competitive multiparty system combined with governance within constitutional limits—cannot be taken for granted due to the existence of competing forms of government that appear successful along a number of practical dimensions and consequently enjoy high levels of public acceptance. Proponents of liberal constitutional democracy must be prepared to proactively explain and defend its capacity to satisfy first-order political needs. A system of government is unlikely to command popular acceptance unless it can plausibly claim to address the problems of oppression, tribalism, and physical and economic security.

Along these dimensions, the advantages …

Mccutcheon V. Fec: Sacrificing Campaign Finance Regulation In The Name Of Free Speech, Haley S. Peterson

Maryland Law Review Online

No abstract provided.

In The Debt We Trust: The Unconstitutionality Of Defaulting On American Financial Obligations, And The Political Implications Of Their Perpetual Validity, Zachary K. Ostro

Student Articles and Papers

Starting in August 2011, America has undergone a series of fiscal and political crises surrounding the threat of defaulting on the national debt and the need to raise the debt ceiling. These crises have caused tremendous stress and irreparable harm to our financial markets and political system, causing a downgrade in United States debt for the first time in history, forcing drastic budget cuts, and contributing to a sixteen-day government shutdown this past October. What is most unfortunate, however, is that all of this was preventable for the simple reason that, as a matter of constitutional law, defaulting on the …

Of Civil Wrongs And Rights: Kiyemba V. Obama And The Meaning Of Freedom, Separation Of Powers, And The Rule Of Law Ten Years After 9/11, Katherine L. Vaughns, Heather L. Williams

Faculty Scholarship

This article is about the rise and fall of continued adherence to the rule of law, proper application of the separation of powers doctrine, and the meaning of freedom for a group of seventeen Uighurs—a Turkic Muslim ethnic minority whose members reside in the Xinjiang province of China—who had been held at the Guantanamo Bay Naval Base since 2002. Most scholars regard the trilogy of Hamdi v. Rumsfeld, Hamdan v. Rumsfeld, and Boumediene v. Bush as demonstrating the Supreme Court’s willingness to uphold the rule of law during the war on terror. The recent experience of the Uighurs …

Defining Corruption And Constitutionalizing Democracy, Deborah Hellman

Faculty Scholarship

The central front in the battle over campaign finance laws is the definition of corruption. The Supreme Court has allowed restrictions on giving and spending money in connection with elections only when they serve to avoid corruption or its appearance. The constitutionality of such laws, therefore, depends on how the Court defines corruption. Over the years, campaign finance cases have conceived of corruption in both broad and narrow terms, with the most recent cases defining it especially narrowly. While supporters and critics of campaign finance laws have argued for and against these different formulations, both sides have missed the more …