Constitutional Law Commons^™

Deference Vs. Evidence: An Exploration Of The Appropriate Application Of Putative Benefits To The Pike Balancing Test, Nathan Gniewek

Catholic University Law Review

The Supreme Court has long done battle with the intricacies and subtle implications of the interplay between state and federal power with regard to commerce. Although the Supreme Court crafted the Pike balancing test in 1970, that test has proven a jurisprudential headache due to a lack of a solid definition of the key phrase “putative benefits.”

Since the Supreme Court decided Pike v. Bruce Church, circuit courts have been unable to apply the term consistently when making use of the Pike test, generating a massive circuit split. This Comment teases out the differing treatment of states’ burden of …

At The Intersection Of Due Process And Equal Protection: Expanding The Range Of Protected Interests, Vincent J. Samar

Catholic University Law Review

Are the Due Process and Equal Protection clauses interconnected? Justice Kennedy in Obergefell v. Hodges, the Supreme Court case holding the fundamental right to marry includes the right to a same-sex marriage, stated that they are profoundly connected in that each clause “may be instructive as to the meaning and reach of the other.” But exactly what instruction each doctrine might afford the other, Justice Kennedy did not say. An earlier Supreme Court decision, Plyler v. Doe, also suggested a connection, when the Court held unconstitutional a Texas statute baring funding for the education of undocumented children. But …

The Constitutionality Of Appropriations Transfer Authority Under The Nondelegation Doctrine, Shelby Begany Telle

Catholic University Law Review

Article I, Section 9 of the U.S. Constitution provides the Legislative Branch with the power of the purse by granting it the exclusive authority to designate how federal dollars may be spent via appropriations laws. Congress often includes transfer authority, which provides Executive Branch recipients of appropriations the ability to shift funds from one budget account to another. Allowing an agency to transfer funds from one non-specific appropriation to another is arguably an unconstitutional abdication of the Legislative Branch’s exclusive power over the purse strings.

Appropriations transfers are unconstitutional under the nondelegation doctrine. Certain attempts to alleviate these nondelegation concerns …

Introduction: The Future Of Religious Liberty In America, Mark L. Rienzi

Catholic University Law Review

No abstract provided.

Smith, Scalia, And Originalism, Amul R. Thapar

Catholic University Law Review

To many principled Originalists and proponent of religious liberty, the opinion in Employment Division v. Smith poses a puzzle. Many commentators believe Smith contradicts the original meaning of the Free Exercise Clause and hinders the right to religious freedom. Yet it was written by Justice Scalia, a self-professed Originalist and lion of the law. I attempt to resolve this puzzle, reviewing Justice Scalia’s speeches and opinions on religious liberty. Ultimately, Justice Scalia’s opinion in Smith reflects his commitments to certain jurisprudential principles. Viewing these principles in the light of New Originalism, though, it becomes clear how Smith most likely does …

Mastering Masterpiece, Kristen K. Waggoner

Catholic University Law Review

Religious freedom ensures that every person has the right to explore life’s deepest questions and to live out their religious convictions in public life. Free speech similarly ensures that all have the liberty to express their views and pursue truth without fear of government punishment. Free exercise of religion and free speech are durable rights that do not turn on cultural popularity or political power; these freedoms enable us to coexist peacefully with each other despite deep differences. Yet these freedoms are being sorely tested today by government efforts to suppress the rights of creative professionals—painters, filmmakers, printers, and many …

From Innovation To Abuse: Does The Internet Still Need Section 230 Immunity?, Benjamin Volpe

Catholic University Law Review

In 1996, Congress passed the Communications Decency Act to allow the screening of offensive material from the internet, while preserving the continued development of the internet economy without burdensome regulation. However, for years, online intermediaries have successfully used the Act as a shield from liability when third parties use their online services to commit tortious or criminal acts. This Comment argues that a wholly-unregulated internet is no longer necessary to preserve the once-fledgling internet economy. After evaluating various approaches to intermediary liability, this Comment also argues that Congress should take a more comprehensive look at consumer protection online and establish …

Recognizing Anti-Zionism As An Attack On Jewish Identity, Alyza D. Lewin

Catholic University Law Review

This article answers the false assertion that Zionism is nothing more than a political movement that should be abandoned by Jewish students on American university campuses. Yearning for the Land of Israel and Jerusalem is, in fact, a deep spiritual integral part of Jewish identity. It dates back 3000 years to Biblical times. The connection of Jews to Zion is a key component of Jews' shared ancestry and ethnicity and has persisted throughout Jewish history. This dedication is demonstrated today by the custom that concludes a Jewish wedding ceremony and by the declaration ending the Passover Seder. Harassment of students …

A Hollow History Test: Why Establishment Clause Cases Should Not Be Decided Through Comparisons With Historical Practices, Alex J. Luchenitser, Sarah R. Goetz

Catholic University Law Review

Some judges, scholars, and advocates have criticized the Supreme Court’s Establishment Clause jurisprudence, arguing that existing Establishment Clause tests give courts too little guidance and too much discretion, and calling on the Court to replace those tests with a test that compares challenged practices to long-standing historically accepted ones. But such a historical-practice test would be much more difficult to apply than the Court’s current jurisprudence and would engender greater confusion among lower courts than there is now.

That’s because there are very few long-standing historical practices that are legitimate candidates for serving as evidence of the intent of the …