Constitutional Law Commons^™

The Post-Truth First Amendment, Sarah Haan

Indiana Law Journal

Post-truthism is widely viewed as a political problem. This Article explores posttruthism as a constitutional law problem, and argues that, because post-truthism offers a normative framework for regulating information, we should take it seriously as a basis for law.

In its exploration of the influence of post-truth ideas on law, the Article focuses on the compelled speech doctrine. When the State mandates disclosure, it pits the interests of unwilling speakers against the interests of listeners. In the twenty-first century, speakers who are targeted by mandatory disclosure laws are often organizational actors with informational advantages, such as corporations. Listeners who stand …

Understanding The Politics Of Resentment: Of The Principles, Institutions, Counter-Strategies, Normative Change, And The Habits Of Heart, Tomasz Tadeusz Koncewicz

Indiana Journal of Global Legal Studies

The paper asks, when is a constitutional design of any (domestic, international, supranational) polity in error? On the most general level, such a critical juncture occurs when a polity's founding document (treaty, convention, constitution) protects against dangers that no longer exist or does not protect against the dangers that were not contemplated by the founders. Constitutions not only rule but should also protect against deconstitution. When analyzed together, the cases of Hungary, Poland, South America, and more recently, the United States, suggest a worrying new pattern of the erosion of constitutional democracies. One may even speak of a recipe for …

"Believe Me," We Do Not Have A Foreign Emoluments Clause Violation, Scotty N. Teal

Indiana Journal of Global Legal Studies

President Trump was sued in New York District Court for allegedly violating the Foreign Emoluments Clause. In its brief, the Citizens for Responsibility and Ethics in Washington (CREW) alleged that the president's international businesses and real estate holdings positioned him to receive money from foreign governments. These business interests, or entanglements, could "sway" or create an opportunity for negative foreign influence in violation of the Emoluments Clause. CREW states that these "entanglements between American officials and foreign powers could pose a creeping, insidious threat to the Republic." CREW argued that President Trump violated the Emoluments Clause because the clause "cover[s] …

Marriage Equality And A Lawyer's Role In The Emergence Of "New" Rights, Daniel J. Canon

Indiana Journal of Law and Social Equality

The last few decades have seen a dramatic change in the way in which Americans view LGBT rights, and the right to same-sex marriage in particular. In 1972, the Supreme Court issued its first opinion on same-sex marriage. In sharp contrast with Obergefell v. Hodges, which established the constitutional right to marriage equality in 2015, the case of Baker v. Nelson held in one sentence that the idea that such a right might exist was not even worth discussing. What happened in the intervening forty years to change the outcome so profoundly? And how can attorneys seek to replicate …

Evidence Struggles: Legality, Legitimacy, And Social Mobilizations In The Catalan Political Conflict, Susana Narotzky

Indiana Journal of Global Legal Studies

Different kinds of evidence are put forward to make an argument and justify political action by agents situated in diverse social, cultural, and power positions. The Catalan political conflict is a case in point. The central Spanish government's arguments are mostly of a juridical nature and rest on the anti-constitutionality of the Catalan government and other civil society organizations' actions. Instead, most arguments of Catalan supporters of independence are based on historical interpretations of grievances referring to national institutions and identity. Supporters of independence, under the politically inspired actions of major civil society associations, have mobilized hundreds of thousands of …

Younger Generations Are Infected By Continuous Socialization To Accept Diminished Privacy: A Global Analysis Of How The United States' Constitutional Doctrine Is A Main Contributor To Eroded Privacy, Tiffany Kim

Indiana Journal of Global Legal Studies

Since the nineteenth century, privacy concerns have increased with the growth of technology. The invention of instantaneous photography, coupled with the enlarged presence of press, was met with concerns of degraded privacy. Society has formed expectations of privacy, but as time passes, those expectations continue to diminish. Younger generations have been socialized to accept lessened levels of privacy in this digitalized world of mass data and connectivity.

Individual privacy expectations vary globally. The construction of China's government and culture produces a lesser expectation of individual privacy than that of the United States. As outlined in the U.S. Constitution, U.S. citizens …

To Secede Or Not Secede? Is It Even Possible?, T. Z. Cook

Indiana Journal of Global Legal Studies

Secession seems like a concept of the past. In our increasingly globalizing world, nationalism was growing archaic and halting progress. But secession has seen a surge in the last ten years. Kosovo declared independence from Serbia in 2008. The United Kingdom seceded from the European Union in the infamous "Brexit." And in 2017, Catalonia's grab for independence sparked the worst crisis in Spain since the days of Francisco Franco.1 Alongside these high-profile secessions, smaller movements, which until now were simply brewing and bubbling, are becoming inspired. One such movement is "The South is My Country," a coalition of three southern …

What Is Puerto Rico?, Samuel Issacharoff, Alexandra Bursak, Russell Rennie, Alec Webley

Indiana Law Journal

Puerto Rico is suffering through multiple crises. Two are obvious: a financial crisis triggered by the island’s public debts and the humanitarian crisis brought on by Hurricane Maria. One is not: the island’s ongoing crisis of constitutional identity. Like the hurricane, this crisis came from outside the island. Congress, the U.S. Supreme Court, and the Executive Branch have each moved in the last twenty years to undermine the “inventive statesmanship” that allowed for Puerto Rico’s self-government with minimal interference from a federal government in which the people of Puerto Rico had, and have, no representation. From the point of view …

Implicit Racial Bias And Students' Fourth Amendment Rights, Jason P. Nance

Indiana Law Journal

Tragic acts of school violence such as what occurred in Columbine, Newtown, and, more recently, in Parkland and Santa Fe, provoke intense feelings of anger, fear, sadness, and helplessness. Understandably, in response to these incidents (and for other reasons), many schools have intensified the manner in which they monitor and control students. Some schools rely on combinations of security measures such as metal detectors; surveillance cameras; drug-sniffing dogs; locked and monitored gates; random searches of students’ belongings, lockers, and persons; and law enforcement officers. Not only is there little empirical evidence that these measures actually make schools safer, but overreliance …

The Recent Unpleasantness: Understanding The Cycles Of Constitutional Time, Jack M. Balkin

Indiana Law Journal

In this Article, I will talk about what I expect is going to happen in the next five to ten years. Unlike eclipses, however, one can’t be entirely sure of the future. Politics is not astronomy, and human affairs do not operate like clockwork. Moreover, we can’t assume that everything is already foreordained: that if people simply sit on their hands and do nothing, the cycles I describe in this lecture will take care of themselves. Quite the contrary. I am telling a story about what happens in the long run, but it is not a deterministic story. The actions …

Dirty Thinking About Law And Democracy In Rucho V. Common Cause, Luis Fuentes-Rohwer, Guy-Uriel E. Charles

Articles by Maurer Faculty

In order to understand the division in Rucho and, as importantly, to understand why the plaintiffs in Rucho failed to win over the conservatives on the Court, we have to come to terms with these different worldviews on the Court. Is sordid politics an inherently necessary and arguably normatively good part of the political process, and thus a necessary part of our representative institutions? Relatedly, do substantive fairness principles exist—outside of race and the equal-population principle—that constrain political actors when they design electoral structures to favor themselves at the expense of their opponents? We take up these questions in the …

Animus And Its Alternatives: Constitutional Principle And Judicial Prudence, Daniel O. Conkle

Articles by Maurer Faculty

In a series of cases addressing sexual orientation and other issues, the Supreme Court has ruled that animus-based lawmaking is constitutionally impermissible. The Court treats animus as an independent and sufficient basis for invalidation. Moreover, it appears to regard animus as a doctrine of first resort, to be utilized even when an alternative constitutional rationale, such as declaring a challenged classification suspect or quasi-suspect, would readily justify the same result. Responding especially to Professor William D. Araiza’s elaboration and defense of the Court’s animus doctrine, I agree that this doctrine is sound, indeed compelling, as a matter of constitutional principle. …

Public/Private Distinction In Islamic Jurisprudence: Reflection On Islamic Constitutionalism, Faris F. Almalki

Maurer Theses and Dissertations

The study seeks to attract scholars' attention to the importance of normative theory in the process of constitutionalism in the Islamic world. The study argues that Islamic jurisprudence requires a state or a public authority to ensure the conformity of outward with Islamic norms. Accordingly, the preservation of Islamic norms is a central value controlling the dynamics of public/private distinction. Thus, the central value determines the meaning of limited government, and the study argues this central value in constitutional level defines people's liberties. Then, the study discusses the effect of the Islamic normative theory on the liberal-Islamic model of constitutionalism. …

Dignity And Social Meaning: Obergefell, Windsor, And Lawrence As Constitutional Dialogue, Steve Sanders

Articles by Maurer Faculty

The U.S. Supreme Court’s three most important gay and lesbian rights decisions—Obergefell v. Hodges, United States v. Windsor, and Lawrence v. Texas—are united by the principle that gays and lesbians are entitled to dignity. Beyond their tangible consequences, the common constitutional evil of state bans on same-sex marriage, the federal Defense of Marriage Act, and sodomy laws was that they imposed dignitary harm. This Article explores how the gay and lesbian dignity cases exemplify the process by which constitutional law emerges from a social and cultural dialogue in which the Supreme Court actively participates. In doing …