Constitutional Law Commons^™

First Amendment And Consumer Advertisement, S. Kelvin Fang

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

The Brilliance In Slaughterhouse: A Judicially Restrained And Original Understanding Of "Privileges Or Immunities", Lawrence Lessig

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Immigration In The Shadow Of Death, Eunice Lee

University of Pennsylvania Journal of Constitutional Law

In this piece, I examine the immigration enforcement and adjudication system as a whole from the perspective of life and death. Drawing upon social theory frames as well as legal scholarship, I look to how doctrines and laws continually devalue and risk noncitizens’ lives. Although scholarly work has examined how differing aspects of immigration law and enforcement take lives—e.g., via detention, cross-border shootings, and deportation— explorations have yet to consider the system as a whole from this perspective.

My contribution illuminates how laws as well as legal doctrines serve as mechanisms for assigning differential value to human life, ultimately taking …

"The Key-Stone To The Arch": Unlocking Section 13'S Original Meaning, Kevin Bendesky

University of Pennsylvania Journal of Constitutional Law

The Supreme Court of Pennsylvania holds that Section 13 of the State’s constitution, which prohibits all “cruel punishments,” is coextensive with the Eighth Amendment, which prohibits only punishments that are both “cruel and unusual.” Rather than analyze the state provision independently, the court defers to the U.S. Supreme Court’s interpretation of the Eighth Amendment. This, says the court, is because Pennsylvania history does not provide evidence that the Commonwealth’s prohibition differs from the federal one. And without that historical basis, the court believes it is bound by federal precedent. This is mistaken.

History reveals that Pennsylvanians had a distinct, original …

The Federal War On Guns: A Story In Four-And-A-Half Acts, Brandon E. Beck

University of Pennsylvania Journal of Constitutional Law

“History is a jangle of accidents, blunders, surprises and absurdities, and so is our knowledge of it, but if we are to report it at all we must impose some order upon it.”

Beginning in the early 1990s, the Executive Branch took a novel approach to the enforcement of federal firearms offenses. It replaced traditional notions of restraint with a newfound willingness to exercise its power broadly, leading to a sharp increase in the number of federal firearms offenders that continues today. A recent development, however, threatens to dismantle the core of the federal firearms scheme. Decided in 2022, the …

What Is The Matter With Dobbs?, Andrew Coan

University of Pennsylvania Journal of Constitutional Law

Contrary to its critics, Dobbs v. Jackson Women’s Health Organization is not illegitimate or lawless. It is a highly consequential but fundamentally ordinary example of the inextricable connections between morality and constitutional law. If abortion is akin to murder, Dobbs could not—and should not—have come out any other way. If abortion is essential to personal autonomy and equal citizenship, the case was wrongly decided and should be reversed at the earliest opportunity.

The appropriate response to decisions like Dobbs is to criticize the moral judgments underlying them. Depending on the circumstances, institutional responses, such as court packing and jurisdiction stripping, …

Lavatories Of Democaracy: Recognizing A Right To Public Toilets Through International Human Rights And State Constitutitonal Law, Rick Weinmeyer

University of Pennsylvania Journal of Constitutional Law

The United States is a public toilet nightmare. Truly public toilets are a rarity, while the restrooms provided by private businesses are inconsistently available via “customer only” policies and the discriminatory actions of owners and their employees. Some jurisdictions have made tepid attempts at providing more bathrooms, but all have failed. The result: an accumulation of entirely preventable public health harms, including outbreaks of infectious disease, illness, and dignitary harms.

This Article is the first to provide a comprehensive review of U.S. toilet law—the laws and policies that determine where bathrooms are provided and who has access to them—and diagnose …

A Sword And A Shield: An Antidiscrimination Analysis Of Academic Freedom Protections, Apratim Vidyarthi

University of Pennsylvania Journal of Constitutional Law

Academic freedom is an essential principle undergirding education in the United States. Its purpose is to further the freedom of thought and inquiry in the academic profession by advancing knowledge and the search for truth. Academic freedom goes back more than a century, and is now intertwined with First Amendment doctrine. Yet today’s academic freedom doctrine suffers from serious problems, some of which perpetuate discrimination in the classroom and systemically in educational institutions.

The definition of academic freedom in theory is misaligned with that in case law. Courts have done little to analyze what protections academic freedom provides, and case …

Concretizing Abstract Rights: Damages For Intangible Constitutional Injuries Under The Prison Litigation Reform Act, Abigail Kasdin

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

The Shadow Constitution: Rescuing Our Inheritance From Neglect And Disuse, Stephen Menendian

University of Pennsylvania Journal of Constitutional Law

The United States Constitution is the foundation of American law and one of the most venerated documents in the American political community. Although most constitutional scholarship focuses on the meaning of the more heavily litigated provisions, such as the equal protection clause and the due process clause, prior scholarship has also identified and pressed for the revival or re-interpretation of many neglected or largely overlooked provisions of the United States Constitution. Much of this prior scholarship, however, is narrowly focused on a particular provision or small set of interrelated provisions. This article surveys twelve constitutional provisions characterized in prior scholarship …

Background As Foreground: Section Three Of The Fourteenth Amendment And January 6th, Gerard N. Magliocca

University of Pennsylvania Journal of Constitutional Law

[I]t is undoubted that those provisions of the constitution which deny to the legislature power to deprive any person of life, liberty, and property, without due process of law, or to pass a bill of attainder or an ex post facto, are inconsistent in their spirit and general purpose with a provision which, at once without trial, deprives a whole class of persons of offices held by them, for cause, however grave. It is true that no limit can be imposed on the people when exercising their sovereign power in amending their own constitution of government. But it is a …

Equal Protection Against Policing, Evan Bernick

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Dobbs V. Jackson Women's Health Organization: Reckoning With Its Impact And Charting A Path Forward, Hillary A. Schneller, Diana Kasdan, Risa E. Kaufman, Alexander Wilson

University of Pennsylvania Journal of Constitutional Law

Dobbs v. Jackson Women’s Health Organization undid 50 years of precedent guaranteeing the constitutional right to abortion in the United States. At the one-year anniversary of the decision, and as the devastating consequences continue to play out across the country, this article analyzes Dobbs and its impact. It also charts a way forward for rebuilding a more robust Fourteenth Amendment jurisprudence. It draws on the authors’ individual perspective and expertise, and the Center for Reproductive Rights’ role as lead counsel in the case and as a global human rights organization advancing reproductive rights in the United States and around the …

Transportation: The Hidden Right To Exclude, Saleema Snow

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Missing Doctrines In Fifth Circuit Caselaw: Injury And Causation In Environmental Litigators' Standing, Karen Joo

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Sovereignty And Separation: John Taylor Of Caroline And The Division Of Powers, Noah C. Zimmermann

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Race, Originalism, And Skepticism, Guy-Uriel E. Charles, Luis Fuentes-Rohwer

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Implicit Bias, Structural Bias, And Implications For Law And Policy, Goodwin Liu

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Intraparty Conflict And The Separation Of Powers, Gregory Elinson

University of Pennsylvania Journal of Constitutional Law

Intent on reconciling constitutional theory to political reality, public law scholars have in recent decades dismissed as naïve both the logic of the Constitution’s design set forth in The Federalist and the Framers’ dismal view of political parties. They argue that, contrary to the Madisonian vision, competition between our two national political parties undergirds the horizontal and vertical separation of powers. But, in calling attention to the fights that take place between political parties, they underestimate the constitutional significance of the conflicts that persist within them. Reconsidering the law and theory of the separation of powers with attention to intraparty …

In The Room Where The Constitution Happens, Lorianne Updike Toler

University of Pennsylvania Journal of Constitutional Law

Constitution-writing, according to the United Nations, should be participatory, non-exclusionary, and transparent. Recent scholarship has identified group inclusion, or ensuring that a broad swath of enfranchised groups is welcomed into the drafting room, as the lodestar of constitutional process.

In making this comparative case—one which has important implications for modern constitution-writing— scholarship provides precious little empirical evidence, particularly from the historical genre. This ignores the benefit of studying the oldest constitution-writing traditions in America and all that can be learned by tracing a practice or idea to its roots.

This study, the first monogram on New Hampshire’s five constitution-writing processes …

The State Citizenship Clause, Kurt Lash

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Reconstructing As Revolution: The Fourteenth Amendment And The Destruction Of Founding America, Kermit Roosevelt Iii

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Fugitives From Slavery And The Lost History Of The Fourth Amendment, Michael J. Zydney Mannheimer

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

A Weighty Question: Substantial Burden And Free Exercise, Jess Zalph

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Campbell V. Reisch: The Dangers Of The Campaign Loophole In Social-Media-Blocking Litigation, Clare R. Norins, Mark L. Bailey

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Second Middle Passage: How Anti-Abortion Laws Perpetuate Structures Of Slavery And The Case For Reproductive Justice, Halley Townsend

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Masthead

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Exigencies, Not Exceptions: How To Return Warrant Exceptions To Their Roots, Michael Gentithes

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Appellate Waiver In Pennsylvania And Its Effect On Litigants’ Rights To Appeal, Sarah Reeves

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Why Do Public Students In High School Get More Free Speech Protection Than In Universities? A Comparative Analysis Of “Off-Campus” Free Speech In Secondary School And Post-Secondary Public Schooling, Madeline Feldman Fenton

University of Pennsylvania Journal of Constitutional Law

No abstract provided.