Constitutional Law Commons^™

Corporate Personhood And Limited Sovereignty, Elizabeth Pollman

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This Article, written for a symposium celebrating the work of Professor Margaret Blair, examines how corporate rights jurisprudence helped to shape the corporate form in the United States during the nineteenth century. It argues that as the corporate form became popular because of the way it facilitated capital lock-in, perpetual succession, and provided other favorable characteristics related to legal personality that separated the corporation from its participants, the Supreme Court provided crucial reinforcement of these entity features by recognizing corporations as rights-bearing legal persons separate from the government. Although the legal personality of corporations is a distinct concept from their …

The Inequality Of America's Death Penalty: A Crossroads For Capital Punishment At The Intersection Of The Eighth And Fourteenth Amendments, John Bessler

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We live in a divided society, from gated communities to cell blocks congested with disproportionate numbers of young African-American men. There are rich and poor, privileged and homeless, Democrats and Republicans, wealthy zip codes and stubbornly impoverished ones. There are committed "Black Lives Matter" protesters, and there are those who—invoking "Blue Lives Matter" demonstrate in support of America‘s hardworking police officers. In her new article, "Matters of Strata: Race, Gender, and Class Structures in Capital Cases," George Washington University law professor Phyllis Goldfarb highlights the stratification of our society and offers a compelling critique of America‘s death penalty regime—one, she …

The Fight For Equal Protection: Reconstruction-Redemption Redux, Kermit Roosevelt Iii, Patricia Stottlemyer

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With Justice Scalia gone, and Justices Ginsburg and Kennedy in their late seventies, there is the possibility of significant movement on the Supreme Court in the next several years. A two-justice shift could upend almost any area of constitutional law, but the possible movement in race-based equal protection jurisprudence provides a particularly revealing window into the larger trends at work. In the battle over equal protection, two strongly opposed visions of the Constitution contend against each other, and a change in the Court’s composition may determine the outcome of that struggle. In this essay, we set out the current state …

What Gideon Did, Sara Mayeux

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Many accounts of Gideon v. Wainwright’s legacy focus on what Gideon did not do—its doctrinal and practical limits. For constitutional theorists, Gideon imposed a preexisting national consensus upon a few “outlier” states, and therefore did not represent a dramatic doctrinal shift. For criminal procedure scholars, advocates, and journalists, Gideon has failed, in practice, to guarantee meaningful legal help for poor people charged with crimes.

Drawing on original historical research, this Article instead chronicles what Gideon did—the doctrinal and institutional changes it inspired between 1963 and the early 1970s. Gideon shifted the legal profession’s policy consensus on indigent defense away from …

The Ironies Of Affirmative Action, Kermit Roosevelt Iii

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The Supreme Court’s most recent confrontation with race-based affirmative action, Fisher v. University of Texas, did not live up to people’s expectations—or their fears. The Court did not explicitly change the current approach in any substantial way. It did, however, signal that it wants race-based affirmative action to be subject to real strict scrutiny, not the watered-down version featured in Grutter v. Bollinger. That is a significant signal, because under real strict scrutiny, almost all race-based affirmative action programs are likely unconstitutional. This is especially true given the conceptual framework the Court has created for such programs—the way …

Resolving The Original Sin Of Bolling V. Sharpe, Gregory Dolin

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On May 17, 1954 the Supreme Court handed down two decisions that for the first time categorically held that racial segregation in public schools was per se unlawful – Brown v. Board of Education and Bolling v. Sharpe. Ostensibly, both cases dealt with a same question; however, in Brown the entity accused of discrimination was a creature of the State of Kansas, while in Bolling the discrimination was practiced by the federal government. The problem that the Supreme Court faced was the language of the Fourteenth Amendment, which, by its own terms, guaranteed “equal protection of the laws” only vis-à-vis …

The Anomaly Of Executions: The Cruel And Unusual Punishments Clause In The 21st Century, John Bessler

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This Article describes the anomaly of executions in the context of the U.S. Supreme Court’s Eighth Amendment jurisprudence. While the Supreme Court routinely reads the Cruel and Unusual Punishments Clause to protect prisoners from harm, the Court simultaneously interprets the Eighth Amendment to allow inmates to be executed. Corporal punishments short of death have long been abandoned in America’s penal system, yet executions — at least in a few locales, heavily concentrated in the South — persist. This Article, which seeks a principled and much more consistent interpretation of the Eighth Amendment, argues that executions should be declared unconstitutional as …

Debate: The Constitutionality Of Stop-And-Frisk In New York City, David Rudovsky, Lawrence Rosenthal

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Stop-and-frisk, a crime prevention tactic that allows a police officer to stop a person based on “reasonable suspicion” of criminal activity and frisk based on reasonable suspicion that the person is armed and dangerous, has been a contentious police practice since first approved by the Supreme Court in 1968. In Floyd v. City of New York, the U.S. District Court for the Southern District of New York ruled that New York City’s stop-and-frisk practices violate both the Fourth and Fourteenth Amendments. Professors David Rudovsky and Lawrence Rosenthal debate the constitutionality of stop-and-frisk in New York City in light of …

Originalism And The Other Desegregation Decision, Ryan C. Williams

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Critics of originalist approaches to constitutional interpretation often focus on the “intolerable” results that originalism would purportedly require. Although originalists have disputed many such claims, one contention that they have been famously unable to answer satisfactorily is the claim that their theory is incapable of justifying the Supreme Court’s famous 1954 decision in Bolling v. Sharpe. Decided the same day as Brown v. Board of Education, Bolling is the case that is most closely associated with the Supreme Court’s so-called “reverse incorporation” doctrine, which interprets the Due Process Clause of the Fifth Amendment as if it effectively "incorporates" the Fourteenth …

The Structural Constitutional Principle Of Republican Legitimacy, Mark D. Rosen

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Representative democracy does not spontaneously occur by citizens gathering to choose laws. Instead, republicanism takes place within an extensive legal framework that determines who gets to vote, how campaigns are conducted, what conditions must be met for representatives to make valid law, and many other things. Many of the “rules-of-the-road” that operationalize republicanism have been subject to constitutional challenges in recent decades. For example, lawsuits have been brought against “partisan gerrymandering” (which has led to most congressional districts not being party-competitive, but instead being safely Republican or Democratic) and against onerous voter identification requirements (which reduce the voting rates of …

What If Slaughter-House Had Been Decided Differently?, Kermit Roosevelt Iii

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In The Slaugherhouse Cases, the Supreme Court gutted the Privileges or Immunities Clause of the Fourteenth Amendment. Though academics continue to argue that Slaughterhouse was wrongly decided and should be overruled, the practical consequences of doing so might not be enormous. The constitutional rights the dissenters found in the Privileges or Immunities Clause are part of our current law anyway, through the Due Process and Equal Protection Clauses. But this does not mean that Slaughterhouse cost us nothing. This article explores how our law might be different had Slaughterhouse been decided differently. Rather than taking up the role that Privileges …

Lecture: Second Founding: The Story Of The Fourteenth Amendment, Garrett Epps

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The story of the Framing of the Fourteenth Amendment is a lost story of American history, covered over by Southern inspiring myth making and an unwillingness to grapple with the central role of slavery in American history. Americans can take new inspiration from that story and use it as an example of how our popular democracy can be perfected. Even today, nearly a century and a half after the Second Founders did their work, their words and example move before us as a people, a cloud by day, a pillar of fire by night.

Federalism Re-Constructed: The Eleventh Amendment's Illogical Impact On Congress' Power, Marcia L. Mccormick

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The Constitution is designed to protect individual liberty and equality by diffusing power among the three branches of the federal government and between the federal and state governments, and by providing a minimum level of protection for individual rights. Yet, the Supreme Court seems to think that federalism is about protecting states as states rather than balancing governmental power to protect individuals. In the name of federalism, the Supreme Court has been paring away at Congress' power to enact civil rights legislation. In doing so, it has transformed the Fourteenth Amendment into a vehicle for protecting states rights rather than …

The Constitutionality Of Enjoining Criminal Street Gangs As Public Nuisances, Christopher S. Yoo

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California jurisdictions have increasingly used injunctions to combat the growth criminal street gangs. The use of civil sanctions to redress criminal activity raises difficult constitutional questions, potentially creating personal criminal codes that may infringe upon defendants’ substantive constitutional rights. In addition, employing civil remedies may deprive defendants of constitutional procedural protections that would have been provided if the jurisdiction had elected to deter the same behavior with available criminal sanctions. Although the use of injunctions places pressure on a number of substantive constitutional rights, including the freedom of association, freedom of expression, right to travel, the injunction terms will likely …