Constitutional Law Commons^™

Deal Leaves Court Issues Unresolved, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals

The Price Of Privacy, 1973 To The Present, Mary Ziegler

Scholarly Publications

The legal academy has not been kind to the privacy rationale set forth in Roe v. Wade. Roe is seen to have promoted a single-issue agenda based on the importance of privacy and choice. Because Roe so quickly came under attack, its defense became a priority, and activists speaking out in favor of the opinion felt encouraged to defend it on its own terms. If the abortion issue were a matter of ordinary politics rather than constitutional law, the argument goes, activists would be free to develop more compelling claims for reproductive rights and to pursue a broader reproductive-health …

Unitary Innovations And Political Accountability, Edward H. Stiglitz

Cornell Law Faculty Publications

An important trend in administrative and constitutional law is to attempt to concentrate ever-greater control over the administrative state in the hands of the President. As the Supreme Court recently reminded us in Free Enterprise Fund v. Public Company Accounting Oversight Board, one foundation for this doctrinal trend is a fear that diffusing power diffuses accountability. Here, I study whether institutional innovations resulting from such judicial decisions support this functionalist constitutional value of political accountability, emphasizing under-appreciated complications arising out of interbranch relations. For most of the Article, I conduct an indepth empirical case study of the legislative veto, one …

A Revolution At War With Itself? Preserving Employment Preferences From Weber To Ricci, Sophia Z. Lee

All Faculty Scholarship

Two aspects of the constitutional transformation Bruce Ackerman describes in The Civil Rights Revolution were on a collision course, one whose trajectory has implications for Ackerman’s account and for his broader theory of constitutional change. Ackerman makes a compelling case that what he terms “reverse state action” (the targeting of private actors) and “government by numbers” (the use of statistics to identify and remedy violations of civil rights laws) defined the civil rights revolution. Together they “requir[ed] private actors, as well as state officials, to . . . realize the principles of constitutional equality” and allowed the federal government to …

Beyond Backlash: Legal History, Polarization, And Roe V. Wade, Mary Ziegler

Scholarly Publications

On its fortieth anniversary, Roe v. Wade serves as the most prominent example of the damage judicial review can do to the larger society. Scholars from across the ideological spectrum have related how Roe helped to entrench the ideological positions held by those on either side of the abortion issue, precluding any form of productive compromise. This criticism, which the Article calls the “beyond backlash” argument, has profound legal consequences, serving as both a justification for overruling Roe and as a case study of the benefits of varying interpretive methods.

This Article reevaluates the beyond backlash claim through a careful …

Pa. Gay Marriage With An Exemption, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals

Outside Influence, Anthony Johnstone

Faculty Law Review Articles

This article considers how much outside influence matters to the constitutional analysis of state politics. It defends the political community principle applied in Bluman v. Federal Election Comm’n as an exception to the otherwise universal speaker-neutrality rule of Citizens United v. Federal Election Comm’n. It draws parallels between efforts to police national and state boundaries in politics, and the competing rights claims of outsiders to cross those boundaries and participate fully in domestic politics. The article suggests that the structural constitutional principle of political community supports certain state regulations of outside influence across a range of political activities. Part I …

The American Liberty League And The Rise Of Constitutional Nationalism, Jared Goldstein

Law Faculty Scholarship

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 …

Experimenting With Religious Liberty: The Quasi-Constitutional Status Of Religious Exemptions, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.

The Vietnam Draft Cases And The Pro-Religion Equality Project, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.

Introduction To The Workplace Constitution From The New Deal To The New Right, Sophia Z. Lee

All Faculty Scholarship

Today, most American workers do not have constitutional rights on the job. As The Workplace Constitution shows, this outcome was far from inevitable. Instead, American workers have a long history of fighting for such rights. Beginning in the 1930s, civil rights advocates sought constitutional protections against racial discrimination by employers and unions. At the same time, a conservative right-to-work movement argued that the Constitution protected workers from having to join or support unions. Those two movements, with their shared aim of extending constitutional protections to American workers, were a potentially powerful combination. But they sought to use those protections to …

The Anxiety Of Influence: The Evolving Regulation Of Lobbying, Richard Briffault

Faculty Scholarship

Lobbying has long been a source of anxiety. As early as the mid-nineteenth century courts expressed concern about the “designing and corrupt men” who sought to wield “secret influence.” Lobbying is a multi-billion dollar business today, but the association of “lobbying” with improper influence is so strong that the American League of Lobbyists – the lobbyists’ trade association – recently renamed itself to drop the word “lobbyist.” Yet, courts have also long recognized that people have a legitimate interest in being able to influence government action, and that they may need to be able to hire agents to help them, …

Constitutional Concern, Membership, And Race, Sarah Krakoff

Publications

American Indian Tribes in the United States have a unique legal and political status shaped by fluctuating federal policies and the over-arching history of this country’s brand of settler-colonialism. One of the several legacies of this history is that federally recognized tribes have membership rules that diverge significantly from typical state or national citizenship criteria. These rules and their history are poorly understood by judges and members of the public, leading to misunderstandings about the “racial” status of tribes and Indian people, and on occasion to incoherent and damaging decisions on a range of Indian law issues. This article, which …

Treaty Termination As Foreign Affairs Exceptionalism, Jean Galbraith

All Faculty Scholarship

No abstract provided.

Election Law's Lochnerian Turn, Ellen D. Katz

Articles

This panel has been asked to consider whether "the Constitution [is] responsible for electoral dysfunction."' My answer is no. The electoral process undeniably falls well short of our aspirations, but it strikes me that we should look to the Supreme Court for an accounting before blaming the Constitution for the deeply unsatisfactory condition in which we find ourselves.

What Is Extraterritorial Jurisdiction?, Anthony J. Colangelo

Faculty Journal Articles and Book Chapters

The phenomenon of extraterritorial jurisdiction, or the exercise of legal power beyond territorial borders, presents lawyers, courts, and scholars with analytical onions comprising layers of national and international legal issues; as each layer peels away, more issues are revealed. U.S. courts, including the Supreme Court, have increasingly been wrestling this conceptual and doctrinal Hydra. Any legal analysis of extraterritorial jurisdiction leans heavily on the answers to two key definitional questions: What do we mean by “extraterritorial”? And, what do we mean by “jurisdiction”? Because the answer to the first question is often conditional on the answer to the second, the …

Reconciling Equal Protection Law In The Public And In The Family: The Role Of Racial Politics, Dorothy E. Roberts

All Faculty Scholarship

In Constitutional Colorblindness and the Family, Katie Eyer brings to our attention an intriguing contradiction in the Supreme Court's equal protection jurisprudence. Far from ending race‐based family law rules with its 1967 decision, Loving v. Virginia, the Court has ignored lower courts' decisions approving official uses of race in foster care, adoption, and custody decisions in the last half century. Thus, as Eyer observes, “during the same time that the Supreme Court has increasingly proclaimed the need to strictly scrutinize all government uses of race, family law has remained a bastion of racial permissiveness.”

Scholars who oppose race‐matching …

Tsilhqot'in Nation V. Bc: Reconfiguring Aboriginal Title In The Name Of Reconciliation, Constance Macintosh

Articles, Book Chapters, & Popular Press

In the text that follows, I start by explaining how Canada's behaviour in the Tsilhqot'in litigation undercuts, rather than fosters, the potential for a relationship of trust, which is foundational for reconciliation. In particular, I argue that Canada's behaviour suggests federal disregard for the state roles and responsibilities that the Supreme Court of Canada has found are mandated by the recognition and affirmation of Aboriginal and treaty rights in section 35 of the Constitution Act, 1982. I then focus on the judgment of the Court of Appeal. As discussed below, the Court of Appeal upheld the trial judge's decision, but …

The House Of Windsor: Accentuating The Heteronormativity In The Tax Incentives For Procreation, Anthony C. Infanti

Articles

Following the Supreme Court’s decision in United States v. Windsor, many seem to believe that the fight for marriage equality at the federal level is over and that any remaining work in this area is at the state level. Belying this conventional wisdom, this essay continues my work plumbing the gap between the promise of Windsor and the reality that heteronormativity has been one of the core building blocks of our federal tax system. Eradicating embedded heteronormativity will take far more than a single court decision (or even revenue ruling); it will take years of work uncovering the subtle …

Treaty Termination And Historical Gloss, Curtis A. Bradley

Faculty Scholarship

The termination of U.S. treaties provides an especially rich example of how governmental practices can provide a “gloss” on the Constitution’s separation of powers. The authority to terminate treaties is not addressed specifically in the constitutional text and instead has been worked out over time through political-branch practice. This practice, moreover, has developed largely without judicial review. Despite these features, Congress and the President—and the lawyers who advise them—have generally treated this issue as a matter of constitutional law rather than merely political happenstance. Importantly, the example of treaty termination illustrates not only how historical practice can inform constitutional understandings …

Constitutional Skepticism: A Recovery And Preliminary Evaluation, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

The aim of this article is to recover and reevaluate the American tradition of constitutional skepticism. Part I consists of a brief history of skepticism running from before the founding to the modern period. My aim here is not to provide anything like a complete description of the historical actors, texts, and events that I discuss. Instead, I link together familiar episodes and arguments that stretch across our history so as to demonstrate that they are part of a common narrative that has been crucial to our self-identity. Part II disentangles the various strands of skeptical argument. I argue that …

Toward An Ethics Of Being Lobbied: Affirmative Obligations To Listen, Heidi Li Feldman

Georgetown Law Faculty Publications and Other Works

Lobbying in the U.S. today grows out of a historical legal and, eventually, Constitutional right to petition the government for redress of grievances. English kings, the English Parliament, and American colonial legislatures had incentives for not only recognizing the right but treating it fulsomely, as a means for communicating extensively with the widest possible range of those over whom kings, Parliament, and legislatures had or sought to have power. Because of drastic changes in circumstance, today's officials do not have this incentive. Financial and structural forces tend to narrow the range of people legislators and elected executives hear from. In …