Constitutional Law Commons^™

Why Chief Justice Roy Moore And The Alabama Supreme Court Just Made The Best Case For Same-Sex Marriage, Adam Lamparello

Adam Lamparello

The Alabama Court of the Judiciary should remove Roy Moore from the Supreme Court of Alabama for a second and final time. Over ten years after being ousted from the Alabama Supreme Court, Chief Justice Moore is embroiled in yet another controversy that involves disregarding the federal courts and creating chaos in the legal system. In fact, Moore recently stated that he would ignore the Supremacy Clause and not respect a U.S. Supreme Court decision invalidating same-sex marriage bans. That statement brings back memories of Governor Wallace’s infamous stand at the schoolhouse door. At least Wallace had a change of …

The Privacies Of Life: Automatic License Plate Recognition Is Unconstitutional Under The Mosaic Theory Of Fourth Amendment Privacy Law, Jessica Gutierrez-Alm

Hamline Law Review

Abstract

Dying In Original Sin Vis-À-Vis Living In Disgrace—In Defense Of The Right To Socio-Eugenic Abortion As Personal Liberty, Jayadevan V. R. Dr.

Hamline Law Review

Abstract

March 11, 2015: Well, Some Dare Call It Treason, Bruce Ledewitz

Hallowed Secularism

Blog post, “Well, Some Dare Call it Treason“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

The Heritage Guide To The Constitution, Second Edition: What Has Changed Over The Past Decade, And What Lies Ahead?, David Forte, Edwin Meese Iii, Matthew Spalding

Law Faculty Articles and Essays

The Heritage Guide to the Constitution, first released in 2005, brought together more than 100 of the nation’s best legal experts to provide line-by-line examination of each clause of the Constitution and its contemporary meaning—the first such comprehensive commentary to appear in many decades. The Heritage Guide to the Constitution: Fully Revised Second Edition takes into account a decade of Supreme Court decisions and legal scholarship on such issues as gun rights, religious freedom, campaign finance, civil rights, and health care reform. The Founders’ guiding principles remain unchanged, yet a number of Supreme Court decisions over the past decade …

Parents Involved: The Mantle Of Brown, The Shadow Of Plessy, John A. Powell, Stephen Menendian

john a. powell

The article explores the historical interpretations of the Fourteenth Amendment and the Supreme Court's ruling in the Parents Involved case. It argues that the Court's anticlassification principle is not supported by the central meaning and legacy of Brown. It states that the decision has changed the meaning of Brown via adopting formal equality as a normative constitutional principle. It adds that the court dismisses the harm of segregation and stresses the harm of racial classification.

Diversity And The Civil Jury, Christina S. Carbone, Victoria C. Plaut

Victoria Plaut

No abstract provided.

Justice-As-Fairness As Judicial Guiding Principle: Remembering John Rawls And The Warren Court, Michael Anthony Lawrence

Michael Anthony Lawrence

This Article looks back to the United States Supreme Court’s jurisprudence during the years 1953-1969 when Earl Warren served as Chief Justice, a period marked by numerous landmark rulings in the areas of racial justice, criminal procedure, reproductive autonomy, First Amendment freedom of speech, association and religion, voting rights, and more. The Article further discusses the constitutional bases for the Warren Court’s decisions, principally the Fourteenth Amendment equal protection and due process clauses.

The Article explains that the Warren Court’s equity-based jurisprudence closely resembles, at its root, the “justice-as-fairness” approach promoted in John Rawls’s monumental 1971 work, A Theory of …

March 7, 2015: Watching The Left Behind Movie, Bruce Ledewitz

Hallowed Secularism

Blog post, “Watching the Left Behind Movie“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Jurisdiction - The Supreme Court Upholds The Constitutionality Of The Jurisdictional Grant Of The Foreign Sovereign Immunities Act Over A Suit Between An Alien And A Foreign Sovereign In United States District Court, Stephen E. Farish

Georgia Journal of International & Comparative Law

No abstract provided.

Multistate Export Trade Promotion Under The Export Trading Company Act Of 1982, Joseph M. Gannam

Georgia Journal of International & Comparative Law

No abstract provided.

Violently Possessed: Johnson As The Vehicle For Limiting Sentencing Enhancement Under The Armed Career Criminals Act, Jonathan Robe

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, Johnson v. United States in which the Court will decide whether conviction for mere possession of a short-barreled shotgun qualifies as a "violent felony" that warrants sentence-enhancement under the Armed Career Criminals Act. The Author argues that he plain text of the statute and the Court's prior cases on the issue suggest tat convictions for "mere possession" do not satisfy the definition of "violent felony" and that the Court should overturn the Eighth Circuit's ruling upholding Johnson's sentence enhancement.

Is That A Threat?: Elonis V. United States And The Standard Of Intent For True Threat Convictions, Peter S. Larson

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary analyzes the Supreme Court case Elonis v. United States where the Court will determine the applicable criminal-intent standard required to convict a defendant for threatening speech. After a series of violent Facebook posts against coworkers and his estranged wife, Petitioner Elonis was convicted for making so-called "true threats" of violence--speech not granted First-Amendment protection. Elonis argues that the prosecution should have been required to prove that he actually had the intent to threaten people when he wrote the posts, not simply that a reasonable person would find the posts threatening. The Author argues that the Court should rule …

Cases, Controversies, And Diversity, F. Andrew Hessick

Northwestern University Law Review

Article III’s diversity jurisdiction provisions extend the federal judicial power to state law controversies between different states or nations and their respective citizens. When exercising diversity jurisdiction, the federal judiciary does not function in its usual role of protecting federal interests or ensuring the uniformity of federal law. Instead, federal courts operate as alternative state courts for resolving disputes between diverse parties. But federal courts often cannot act as alternative state courts because of Article III justiciability doctrines such as standing, ripeness, and mootness. These doctrines define when a federal court may act. But they do not apply to state …

(Un)Equal Protection: Why Gender Equality Depends On Discrimination, Keith Cunningham-Parmeter

Northwestern University Law Review

Most accounts of the Supreme Court’s equal protection jurisprudence describe the Court’s firm opposition to sex discrimination. But while the Court famously invalidated several sex-based laws at the end of the twentieth century, it also issued many other, less-celebrated decisions that sanctioned sex-specific classifications in some circumstances. Examining these long-ignored cases that approved of sex discrimination, this Article explains how the Court’s rulings in this area have often rejected the principle of formal equality in favor of broader antisubordination concerns. Outlining a new model of equal protection that authorizes certain forms of sex discrimination, (Un)Equal Protection advocates for one particular …

March 4, 2015: The Foreign Leader Speaks, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Foreign Leader Speaks“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Speech And Strife, Robert Tsai

Robert L. Tsai

The essay strives for a better understanding of the myths, symbols, categories of power, and images deployed by the Supreme Court to signal how we ought to think about its authority. Taking examples from free speech jurisprudence, the essay proceeds in three steps. First, Tsai argues that the First Amendment constitutes a deep source of cultural authority for the Court. As a result, linguistic and doctrinal innovation in the free speech area have been at least as bold and imaginative as that in areas like the Commerce Clause. Second, in turning to cognitive theory, he distinguishes between formal legal argumentation …

Democracy's Handmaid, Robert Tsai

Robert L. Tsai

Democratic theory presupposes open channels of dialogue, but focuses almost exclusively on matters of institutional design writ large. The philosophy of language explicates linguistic infrastructure, but often avoids exploring the political significance of its findings. In this Article, Tsai draws from the two disciplines to reach new insights about the democracy enhancing qualities of popular constitutional language. Employing examples from the founding era, the struggle for black civil rights, the religious awakening of the last two decades, and the search for gay equality, he presents a model of constitutional dialogue that emphasizes common modalities and mobilized vernacular. According to this …

Constitutional Borrowing, Robert Tsai

Robert L. Tsai

Borrowing from one domain to promote ideas in another domain is a staple of constitutional decisionmaking. Precedents, arguments, concepts, tropes, and heuristics all can be carried across doctrinal boundaries for purposes of persuasion. Yet the practice itself remains underanalyzed. This Article seeks to bring greater theoretical attention to the matter. It defines what constitutional borrowing is and what it is not, presents a typology that describes its common forms, undertakes a principled defense of borrowing, and identifies some of the risks involved. The authors' examples draw particular attention to places where legal mechanisms and ideas migrate between fields of law …

John Brown's Constitution, Robert Tsai

Robert L. Tsai

It will surprise many Americans to learn that before John Brown and his men briefly captured Harper’s Ferry, they authored and ratified a Provisional Constitution. This deliberative act built upon the achievements of the group to establish a Free Kansas, during which time Brown penned an analogue to the Declaration of Independence. These acts of writing, coupled with Brown’s trial tactics after his arrest, cast doubts on claims that the man was a lunatic or on a suicide mission. Instead, they suggest that John Brown aimed to be a radical statesman, one who turned to extreme tactics but nevertheless remained …