Constitutional Law Commons^™

Of Icebergs And Glaciers: The Submerged Constitution Of American Healthcare, Theodore Ruger

All Faculty Scholarship

No abstract provided.

Constitution Day 2012: The American Judiciary, Robert Berry

Librarian Publications

Robert Berry, research librarian for the social sciences at the Sacred Heart University Library, has written an essay about the role of the American Judiciary in interpreting laws of the United States government. The essay was written for the occasion of Constitution Day 2012 at Sacred Heart University.

Wedlocked, Mary P. Byrn, Morgan L. Holcomb

Faculty Scholarship

For as long as marriage has existed in the United States, divorce has been its necessary opposite. So strong is the need for divorce that the Supreme Court has suggested it is a fundamental right, and every state in the country allows access to no-fault divorce. For opposite-sex couples, legally ending their marriage is possible as a matter of right. For married same-sex couples, however, state DoMAs (Defense of Marriage Acts) have been a stumbling block – preventing access to divorce in some states. Same-sex couples in numerous states are being told by attorneys and judges that they cannot terminate …

The Fourth Amendment, Ethan Payne

A with Honors Projects

This projects explains the fourth amendment using skits and a PowerPoint presentation.

Toward A Meaning-Full Establishment Clause Neutrality, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.

Robert Taylor, An Appreciation, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.

The Terms Of The Debate: Litigation, Argumentative Strategies, And Coalitions In The Same-Sex Marriage Struggle, Mary Ziegler

Scholarly Publications

Why, in the face of ongoing criticism, do advocates of same-sex marriage continue to pursue litigation? Recently, Perry v. Schwarzenegger, a challenge to California’s ban on same-sex marriage, and Gill v. Office of Personnel Management, a lawsuit challenging section three of the federal Defense of Marriage Act, have created divisive debate. Leading scholarship and commentary on the litigation of decisions like Perry and Gill have been strongly critical, predicting that it will produce a backlash that will undermine the same-sex marriage cause.

These studies all rely on a particular historical account of past same-sex marriage decisions and their …

The Reality Of Social Rights Enforcement, David Landau

Scholarly Publications

Despite the lack of socio-economic rights in the U.S. Constitution and the absence of political will to enforce them, the vast majority of constitutions around the world now include these rights, and courts are enforcing them in increasingly aggressive and creative ways. Scholars have produced a large and theoretically rich literature on the topic. Virtually all of this literature assumes that social rights enforcement is about the advancement of impoverished, marginalized groups. Moreover, the consensus recommendation of that literature, according to scholars like Cass Sunstein and Mark Tushnet, is that courts can enforce socio-economic rights hut should do so in …

Mission Creep In National Security Law, Fletcher N. Baldwin Jr., Daniel R. Koslosky

UF Law Faculty Publications

Many anti-terrorism measures are enacted with broad public support. There is often a general willingness on the part of the public to accept greater civil liberties deprivations in the face of a specific threat, or otherwise in times of general crisis, than would otherwise be the case. Sweeping anti-terrorism legislation is frequently crafted in reaction to the presence, or perceived presence, of immense, imminent danger. The medium and long-term consequences of the legislation may not fully be comprehended when political leaders and policymakers take swift action in the face strong public pressure in light of a recent terrorist attack or …

Excerpts From Chief Justice Roberts' Opinion In Nfib V. Sebelius, Wilson Huhn

Wilson R. Huhn

In NFIB v. Sebelius the Supreme Court upheld the constitutionality of all but one of the provisions of the Patient Protection and Affordable Care Act. The opinion of Chief Justice Roberts is the controlling opinion in all respects. This is an editted summary of the Chief Justice's opinion.

The Future Interpretation Of The Constitution As A Result Of The Reelection Of President Barack Obama, Wilson Huhn

Wilson R. Huhn

On November 6, 2012, Barack Obama was reelected President of the United States. What effect will this have on the future interpretation of the Constitution? This article identifies 19 areas of constitutional law that would likely change if one more liberal justice is appointed to the Supreme Court.

The Future Interpretation Of The Constitution, Wilson Huhn

Wilson R. Huhn

On November 6, 2012, Barack Obama was reelected President of the United States. What effect will this have on the future interpretation of the Constitution? This article identifies 19 areas of constitutional law that would likely change if one more liberal justice is appointed to the Supreme Court.

Privacy And The Right Of Free Expression, John A. Humbach

Elisabeth Haub School of Law Faculty Publications

Nobody likes to be talked about but everybody likes to talk. Trying to stop the dissemination of private information is, however, an impingement on free expression and the freedom to observe. A freestanding “right of privacy” that violates these interests is constitutionally permissible only if it can be justified using one of the standard bases for allowing restrictions on First Amendment rights. The three most likely possibilities are that the law in question: (1) can pass strict scrutiny, (2) fall within a recognized “categorical” exception, or (3) places only an “incidental” burden on First Amendment interests. Of these three, only …

The Thirteenth Amendment And Pro-Equality Speech, William M. Carter Jr.

Articles

The Thirteenth Amendment’s Framers envisioned the Amendment as providing federal authority to eliminate the “badges and incidents of slavery.” The freemen and their descendants are the most likely to be burdened with the effects of stigma, stereotypes, and structural discrimination arising from the slave system. Because African Americans are therefore the most obvious beneficiaries of the Amendment’s promise to eliminate the legacy of slavery, it is often mistakenly assumed that federal power to eradicate the badges and incidents of slavery only permits remedies aimed at redressing the subordination of African Americans. While African Americans were the primary victims of slavery …

Perception Profiling & Prolonged Solitary Confinement Viewed Through The Lens Of The Angola 3 Case: When Prison Officials Become Judges, Judges Become Visually Challenged, And Justice Becomes Legally Blind, Angela A. Allen-Bell

UC Law Constitutional Quarterly

Solitary confinement is a tool used by the American prison system without a sufficient check on its application. Current practice provides that an inmate's solitary confinement is reviewed at regular intervals by Executive-branch prison administrators. They have employed it to enforce discipline and order in the prison population, but simultaneously have ridden roughshod over inmates' substantive due process rights by failing to provide a meaningful opportunity for a hearing of the facts and justifications for the continued and prolonged solitary confinement of prison inmates. Many, too many inmates have been kept in solitary confinement for extended periods-some for decades-without any …

Putting State Courts In The Constitutional Driver's Seat: State Taxpayer Standing After Cuno And Winn, Edward A. Zelinsky

UC Law Constitutional Quarterly

In DaimlerChrysler Corp. v. Cuno and Arizona Christian School Tuition Organization v. Winn, the U.S. Supreme Court definitively terminated the possibilities of taxpayer standing previously opened by the Warren Court in Flast v. Cohen.

under the U.S. Constitution governing state taxes and outlays. This body of constitutional law will be beyond the direct review of the U.S. Supreme Court because that Court has rejected state taxpayer standing in the federal courts.

State court judges will be more inclined than their federal counterparts to uphold state tax and expenditure policies against constitutional challenge. Consequently, these state-friendly cases under the U.S. Constitution, …

Originalism And Loving V. Virginia, Steven G. Calabresi, Andrea Matthews

Faculty Working Papers

This article makes an originalist argument in defense of the Supreme Court's holding in Loving v. Virginia that antimiscegenation laws are unconstitutional. This article builds on past work by Professor Michael McConnell defending Brown v. Board of Education on originalist grounds and by Professor Calabresi defending strict scrutiny for gender classifications on originalist grounds. Professor Calabresi's work in this area was defended and praise recently by Slate magazine online. The article shows that Loving v. Virginia is defensible using the public meaning originalism advocated for by Justices Antonin Scalia and Clarence Thomas. This article shows that the issue in Loving …

Discretion, Delegation, And Defining In The Constitution's Law Of Nations Clause, Eugene Kontorovich

Faculty Working Papers

Never in the nation's history has the scope and meaning of Congress's power to "Define and Punish. . . Offenses Against the Law of Nations" mattered as much. The once obscure power has in recent years been exercised in broad and controversial ways, ranging from civil human rights litigation under the Alien Tort Statue (ATS) to military commissions trials in Guantanamo Bay. Yet it has not yet been recognized that these issues both involve the Offenses Clauses, and indeed raise common constitutional questions.First, can Congress only "Define" offenses that clearly already exist in international law, or does it have discretion …

Respect And Contempt In Constitutional Law, Or, Is Jack Balkin Heartbreaking?, Andrew M. Koppelman

Faculty Working Papers

How many constitutions have we? Part of what we hope for from constitutional law is that we be united, despite our political differences, by a unifying political charter. John Rawls speaks for many when he writes that a well-ordered society "is a society all of whose members accept, and know that the others accept, the same principles (the same conception) of justice."

Jack Balkin argues that we have to give up on the Rawlsian aspiration, and learn to live in a world where, at a fundamental level, our fellow citizens are strange to us. They believe in different principles than …

Response: There Is No New General Common Law Of Severability, Kevin C. Walsh

Law Faculty Publications

In this solicited response to The New General Common Law of Severability, I first offer an interpretation of Ayotte and subsequent Supreme Court decisions as continuous with existing doctrine instead of a departure from it. I then suggest that much of Scoville’s evidence for a federalization of severability doctrine is better viewed as evidence of doctrinal looseness rather than of doctrinal change. I conclude by returning to the lessons of severability’s doctrinal history, suggesting that the prehistory of severability doctrine may supply a better guide for how courts should deal with problems of partial unconstitutionality in the future.