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Articles 1 - 13 of 13
Full-Text Articles in Constitutional Law
The Congruent Constitution (Part Two): Reverse Incorporation, Jay S. Bybee
The Congruent Constitution (Part Two): Reverse Incorporation, Jay S. Bybee
BYU Law Review
In Bolling v. Sharpe (1954), a companion case to Brown v. Board of Education, the Supreme Court thought it “unthinkable” that the Equal Protection Clause would not apply to the federal government as well as the states and declared it “reverse incorporated” through the Due Process Clause of the Fifth Amendment. The Equal Protection Clause is the most familiar example of reverse incorporation, but it is neither the first nor the only provision of the Constitution that, by its terms, applies to the states alone, but which the Supreme Court has made applicable to the federal government through the Due …
The Congruent Constitution (Part One): Incorporation, Jay S. Bybee
The Congruent Constitution (Part One): Incorporation, Jay S. Bybee
BYU Law Review
In Barron v. Mayor of Baltimore (1833), the Supreme Court held that the Bill of Rights applied to the federal government alone. Following the adoption of the Fourteenth Amendment in 1868, the Supreme Court reconsidered the rule of Barron. The Court first reaffirmed the rule of Barron and held that neither the Privileges or Immunities Clause nor the Due Process Clause made the Bill of Rights applicable to the states. It then entered a period of “absorption,” where the Court held that the Due Process Clause guaranteed some minimal rights found in the Bill of Rights, but not necessarily the …
The Realities Of Takings Litigation, Dave Owen
The Realities Of Takings Litigation, Dave Owen
BYU Law Review
This Article presents an empirical study of takings litigation against the United States. It reviews the cohort of takings cases filed against the federal government between 2000 and 2014, tracing each case from filing through final disposition. The result is a picture of takings litigation that is at odds with much of the conventional wisdom of the field. That conventional wisdom suggests that most takings cases will involve alleged regulatory takings; that the most intellectually challenging issues will arise within the field of regulatory takings; and, more broadly, that takings litigation will play an important role in the United States' …
Why The President Should Remain Commander In Chief Of The D.C. National Guard, Christopher F. Melling
Why The President Should Remain Commander In Chief Of The D.C. National Guard, Christopher F. Melling
BYU Law Review
No abstract provided.
Supreme Court Legitimacy: A Turn To Constitutional Practice, Thomas G. Donnelly
Supreme Court Legitimacy: A Turn To Constitutional Practice, Thomas G. Donnelly
BYU Law Review
Commentators offer the Justices consistent—if unsolicited—advice: tend to the Supreme Court’s institutional legitimacy. However, to say this—without saying more—is to say very little. Of course, constitutional theorists already wrestle with the meaning of legitimacy—its contours, its complexity, and its influence on the Justices. Political scientists debate the relationship between institutional concerns and judicial behavior. At the same time, previous scholars largely ignore issues of constitutional practice. This is a mistake. In this Article, I take up this neglected topic. To that end, I detail how the individual Justice might work to bolster the Court’s legitimacy in concrete cases. Part of …
Praying For America: The Anti-Theocracy And Equal Status Principles Of The Free Exercise, Equal Protection And Establishment Clauses, Corey Brettschneider
Praying For America: The Anti-Theocracy And Equal Status Principles Of The Free Exercise, Equal Protection And Establishment Clauses, Corey Brettschneider
BYU Law Review
In this essay I argue that the Constitution’s Equal Protection, Establishment, and Free Exercise Clauses share common principled limits on the role that religion can play in public life. Specifically, drawing on the free-exercise case of Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, the equal protection case of Romer v. Evans, and the establishment clause case of Town of Greece v. Galloway, I propose two principles to describe the proper place of religious justification as a basis for law. The first requirement is that in addition to any religious reasons for laws, the state must have …
Political Partisanship And Sincere Religious Conviction, Mark Satta
Political Partisanship And Sincere Religious Conviction, Mark Satta
BYU Law Review
In order for a religious conviction to receive protection under the First Amendment or the Religious Freedom Restoration Act (RFRA), it must be a sincere religious conviction. Some critics of the Supreme Court’s ruling in Burwell v. Hobby Lobby have suggested that the plaintiffs in that case and in related cases were motivated more by political ideology than by sincere religious conviction. The remedy, they argue, is for courts to be quicker to scrutinize claims of religious sincerity. In this Article, I consider another possibility—namely, that current sociopolitical partisanship in the United States has eroded a clear distinction between political …
Back To The Sources? What’S Clear And Not So Clear About The Original Intent Of The First Amendment, John Witte Jr.
Back To The Sources? What’S Clear And Not So Clear About The Original Intent Of The First Amendment, John Witte Jr.
BYU Law Review
No abstract provided.
Separated At Baptism: What The Mortara Case Can Teach Us About The Rejection Of Natural Justice By Integralists And Progressives, Francis J. Beckwith
Separated At Baptism: What The Mortara Case Can Teach Us About The Rejection Of Natural Justice By Integralists And Progressives, Francis J. Beckwith
BYU Law Review
No abstract provided.
Redefining The Boundary Between Appropriation And Regulation, Jessica L. Asbridge
Redefining The Boundary Between Appropriation And Regulation, Jessica L. Asbridge
BYU Law Review
The U.S. Supreme Court distinguishes between appropriations and regulations of property rights when interpreting the Fifth Amendment’s Takings Clause. While appropriations of any kind require just compensation to survive constitutional scrutiny, whether non-appropriative laws regulating property rights require compensation is determined on an ad hoc basis, guided by concerns of fairness and justness. In Cedar Point Nursery v. Hassid, the Court reaffirmed its prior precedent establishing the physical takings doctrine, providing that an appropriation is any government action that results in a physical invasion of an owner’s real property and a taking of the owner’s right to exclude. The Court …
The Territorial And District Representation Amendment: A Proposal, Colin P.A. Jones
The Territorial And District Representation Amendment: A Proposal, Colin P.A. Jones
Brigham Young University Journal of Public Law
This article will propose and explain a draft amendment to the United States Constitution that would secure an intermediate degree of political representation for Americans living in U.S. territories. While concerned principally with U.S. territories, the amendment would also address Congressional representation for the District of Columbia.
Informal Governance Of The United States, Edward Lee
Informal Governance Of The United States, Edward Lee
Brigham Young University Journal of Public Law
No abstract provided.
On Criminalizing Violent Speech, Amitai Etzioni
On Criminalizing Violent Speech, Amitai Etzioni
Brigham Young University Journal of Public Law
There is an increasingly high number of threats to kill, made by citizens against each other, and against public officials. These threats terrorize people, force them to take protective measures, make them reluctant to assume public office, and, when they do, make them feel as though they have to act cautiously. State and federal laws currently exist that prohibit such threats. This article examines the ways the courts have affected how these laws function. It concludes by suggesting ways these laws can be rendered more effective. Drawing on liberal communitarianism, this article seeks to offer practical recommendations for how the …