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Brief Of Professors Julian Arato, Rachel Brewster, Harlan Grant Cohen, David Singh Grewal, J. Benton Heath, Timothy Meyer, Gregory Shaffer, And Chantal Thomas As Amici Curiae In Support Of Petitioners In No. 24-1287 And Respondents In No. 25-250, Julian Arato, Rachel Brewster, Harlan Grant Cohen, David Singh Grewal, J. Benton Heath, Timothy Meyer, Gregory Shaffer, Chantal Thomas

Faculty Scholarship

No abstract provided.

History And Tradition As Heightened Scrutiny, Andrew Willinger

Faculty Scholarship

The Supreme Court is turning to methodologies privileging text, history, and tradition, or THT, to interpret and implement various constitutional provisions. The Court has recently endorsed historically-focused approaches to determine how the Second Amendment protects the right to keep and carry a firearm, how the First Amendment protects the rights to free speech and freedom of religion, and whether the Due Process Clause protects reproductive autonomy, among other questions.

Much scholarship and popular commentary surrounding THT portrays the methodology as sui generis: presenting unique analytical challenges and impervious to direct comparison to existing doctrinal approaches. However, the jurist most …

Listening On Campus: Academic Freedom And Its Audiences, Joseph Blocher

Faculty Scholarship

Current debates about campus speech often conflate two related but importantly distinct values: free speech and academic freedom. Both are widely perceived to be in crisis, but they are not interchangeable, and slippage between the two makes it even harder to frame, let alone address, difficult questions about speech in university settings. Many of the most fundamental challenges—indeed, much of what makes campus speech unique in the first place—arise from the need to accommodate both values. In doing so, defenders of academic freedom must, as advocates of free speech have, more clearly articulate an account of listener interests. The basic …

Judge–Scholar Collaboration And The Second Amendment, Andrew Willinger, Eric Ruben

Faculty Scholarship

Legal scholarship is overly abstract and theoretical, making it unhelpful to judges and lawyers. That, at least, is the classic critique from the bench. When it comes to the Second Amendment, however, a different pattern has emerged: judges consistently cite law review articles and look to the academy for guidance. Most recently, in United States v. Rahimi, some Justices went further, implicitly inviting more scholarly work to help the Court answer open questions raised by its novel methodological approach to the Second Amendment. This Article explores this aberrant trend.

We raise several explanations for the distinctive scholarly role in …

Race, The Academy, And The Constitution Of The War On Drugs, I. Bennett Capers, Jeffrey Bellin

Faculty Scholarship

The war on drugs is widely viewed as a policy failure. Despite massive government intrusions on personal liberty, drug addiction, overdoses, and drug-related violence have only increased since the war was declared in 1971. David Pozen’s new book, The Constitution of the War on Drugs, reveals a constitutional failure as well. Pozen chronicles a host of constitutional arguments that American litigants deployed to protect a “right” to use drugs with surprising, if fleeting, success. Pozen asks what might have been, exploring why the courts backtracked and effectively removed the Constitution as a meaningful obstacle to drug prohibitions. 

This Review …

Status, Conduct, Belief, And Message: The Wedding Vendor Cases, Mark L. Movsesian

Faculty Publications

(Excerpt)

I’d like to speak today about one of the more neuralgic episodes in the United States’s ongoing culture wars: the wedding vendor cases. These are cases in which small business owners decline, from religious conviction, to provide services for same-sex weddings. A baker declines to bake a wedding cake for a gay couple because, as a Christian, he opposes same-sex marriage and doesn’t want to participate in sinful behavior. A Christian web designer declines to create websites for same-sex weddings, since doing so would express her support for such weddings, which she doesn’t want to do. Other examples involve …

Is Originalism Bullshit?, Michael L. Smith

Faculty Articles

It’s finally time to answer the big question. This Article draws on the surprisingly robust literature examining the definition, essence, and significance of bullshit and evaluates whether originalist constitutional interpretation fits the bill. I begin with Harry Frankfurt’s definition of bullshit as utterances made in pursuit of the speaker’s goals without regard for their truth value. I also rely on alternate formulations, including bullshit as unclarifiable nonsense as well as contextual and audience-centric variations of bullshit.

While not all instances of originalism are bullshit, I identify those instances which are, and go on to demonstrate that originalism is uniquely prone …

The American Oligarchy, Match Dawson

Faculty Articles

What was designed as a constitutional republic, bound by self-rule and democratic accountability, has become an oligarchy camouflaged by the illusion of public sovereignty. The corporate architects of this new world order did not seize power through conquest or force: they legislated, litigated, and purchased it into existence. Oligarchic rule is more than a simple political crisis. It is a democratic one. Just as prior generations have been called upon to preserve the republic against threats to liberty, we now face our own defining challenge and must decide whether to accept a government auctioned to the highest bidder or reclaim …

The Sovereign Acre, Match Dawson

Faculty Articles

What if the next constitutional crisis is not declared from a presidential podium but tyranny forged into a deed? Not a contested election. Not a rogue legislature. Not even a runaway court. This time, it is quieter—with a deed signed and title passed, a new sovereign is crowned in private ink. Across the country, billionaire land grabs are redrawing the map of municipal governance itself. As wealthy elites and corporate oligarchs carve out private enclaves—from the privatized contract city of Sandy Springs, Georgia, to the unsettling governance of The Woodlands, Texas—we bear witness to public sovereignty giving way to oligarchic …

The Military's Constitutional Role, Brenner M. Fissell

Faculty Publications

A basic principle of the American constitutional order is that civilian authority must be supreme over that of the military. The violation of this principle by the British was one of the grievances enumerated in the Declaration of Independence, and the Framers responded with a Constitution that made military rule impossible. But why is so-called “civilian control” of the military so important? This deep normative question has yet to be thoroughly answered by scholars, most of who assume it away as a given. This Article takes up that task, using contemporary political theory to defend the principle of civilian control. …

Constitutional Theory And The Problem Of Disagreement, J. Joel Alicea

Scholarly Articles

For decades, constitutional theory has been haunted by the problem of disagreement: the reality that we are deeply divided on fundamental questions of justice and the good society. Theorists have generally responded to the problem of disagreement in one of two ways. One approach minimizes the extent to which constitutional theories rely on controversial moral premises and instead grounds constitutional theories in widely endorsed social practices. The other generally discards any social practices that reflect disagreement with the controversial moral views that the theorist holds.

Neither approach is sound. Constitutional theory requires both controversial moral claims and attention to social …

Originalism And Truth-Telling: A Reply To Stephen Sachs, J. Joel Alicea

Scholarly Articles

Sachs focuses on my claim that a theory of constitutional adjudication needs to make a moral argument that justifies telling judges why they ought to decide constitutional disputes in a particular way rather than in some other way. Why be an originalist, for example, rather than a common-law constitutionalist? In answering that question, a theory of constitutional adjudication cannot depend exclusively on a positivist, descriptive account of what the law is—even if Sachs correctly identifies originalism as the law— because knowing that originalism is the “law” (in a positivist sense of “law”) does not tell us why anyone ought to …

Bruen Was Right, J. Joel Alicea

Scholarly Articles

New York State Rifle & Pistol Association v. Bruen is one of the most methodologically significant—and widely maligned—constitutional law decisions of the last several decades. By rejecting the tiers of scrutiny that have loomed large in rights jurisprudence since the 1960s and substituting a text-and-history test for Second Amendment cases, Bruen signals a potential transformation of American constitutional law far beyond the Second Amendment context. Given Bruen’s methodological significance and the text-and-history approach it represents, one might have expected that the debate over Bruen would break down along familiar lines, with originalists defending Bruen and non-originalists critiquing it. Yet, the …

How A Theory Can Make A Difference, Marc O. Degirolami

Scholarly Articles

Professor Sherif Girgis argues in his rich Lecture that originalism as a theory of constitutional law sometimes still makes a difference, but sometimes no longer does. The difference originalism once purported to make can no longer be defended because originalism has become far closer to its onetime nemesis—common law constitutionalism—than it once was, or once was thought to be. The difference that originalism still makes is real, Professor Girgis says, but is difficult to quantify or theorize. The Lecture is punctuated with genial insight about the academy and the courts, but it concludes on a doleful note: originalism just does …

Understanding Brady Violations, Jennifer Mason Mcaward

Journal Articles

This largest-ever study of adjudicated violations of Brady v. Maryland provides a detailed and nuanced understanding of who suppresses material evidence in criminal cases, as well as why, how, where, and how often. Its findings complicate the conventional wisdom that Brady violations are the work of nefarious prosecutors who intentionally withhold material evidence from criminal defendants. While it is true that “bad faith” permeates this area of constitutional noncompliance, a substantial minority of Brady cases stem from “good faith” errors by prosecutors and suppression by law enforcement officers. Most Brady violations occur in a small number of states, and most …

Severability And Liberty, Randy J. Kozel

Journal Articles

In US federal courts and the courts of many states, the presumption of statutory severability leads judges to separate a statute’s unlawful elements from its lawful ones. This article contends that the presumption becomes problematic when the effect of severing is to restrict the constitutional rights of a group whom the legislature exempted from regulation. Presumptive severability draws on a conception of judicial review that aspires to minimize interference with enacted legislation. But there is a countervailing constitutional interest in protecting exempted groups from restrictions on their liberty unless and until the legislature directs otherwise. It is these competing strands …

Litigating Climate Vulnerability: Climate Change Reparations In Global Jurisprudence And Empirical Results From The Notre Dame Climate Change Reparations Dataset, Diane A. Desierto, Anibal Perez-Linan, Faisal Yamil Meneses, Yuta Inada, Rachael Degaugh, Andrew Marciano

Journal Articles

From the article

The global surge in climate change litigation provokes inquiry into the nature, frequency, and scope of climate change reparations that international, regional, and national courts, as well as arbitral tribunals and other adjudicative bodies such as UN treaty body mechanisms, determine to be adequate, both on legal merits as well as intrinsic claims of justice, for the resolution of disputes brought by climate vulnerable persons, groups, and constituencies against States, multinational corporations, and other actors. Our findings from the Notre Dame Climate Change Reparations Dataset reveal a broad spectrum of pecuniary and non-pecuniary reparations being adjudicated in …

Administering Presidential Elections And Counting Electoral Votes After Trump V. Anderson, Derek T. Muller

Journal Articles

In the landmark case Trump v. Anderson, the Supreme Court unanimously held that states lack the unilateral power to exclude presidential candidates from the ballot on the basis of Section 3 of the Fourteenth Amendment. But while the Court was united in its essential holding, the Justices fractured in their reasoning, leaving significant questions about Congress's role in enforcing Section 3 against presidential candidates.

This Article examines the fault lines in Trump v. Anderson and analyzes how Congress's power to count electoral votes under the Twelfth Amendment intersects with its authority to enforce Section 3 of the Fourteenth Amendment. …

Originalism's Difference?, Sherif Girgis

Journal Articles

From the Aritcle

My topic is whether originalism makes any practical difference to constitutional reasoning and outcomes, relative to other methods of interpretation.

INTRODUCTION ............................................. 1945

I. JUSTICE SCALIA'S VISION OF CONTRASTS .................. 1949

II. THE BREAKDOWN OF CONTRASTS ........................... 1952

III. REMAINING CONTRASTS: REAL BUT ELUSIVE TO THEORY....................................................... 1961

IV. THE CHAMBERS ORIGINALISM DIFFERENCE .................. 1966

CONCLUSION: LOOKING AHEAD ................................ 1973

Suspicion, Deference, And The First Amendment, Helen Norton

Publications

No abstract provided.

Loyalty Disarmament And The Undocumented, Pratheepan Gulasekaram

Publications

Since the Supreme Court's District of Columbia v. Heller decision in 2008, lower federal courts have wrestled with Second Amendment claims raised by categories of people excluded from gun possession. Among those cases, several have been brought by noncitizens challenging their prosecutions under 18 U.S.C. § 922(g)(5), the federal criminal ban on possession by unlawfully present noncitizens. In the post-Heller § 922(g)(5) cases, judges have opined on whether unlawfully present noncitizens were among "the people" who had the right to bear arms and whether the government regulation met the appropriate level of constitutional scrutiny. More recently, however, the Supreme Court …

Indigenous Governance And The Charter: What Can Indigenous Constitutionalism Offer?, Karen Drake

All Papers

The question of whether the Charter should apply to Indigenous governance is often presented in terms of a contest between Indigenous self-determination and protections for vulnerable individuals. The two judgments applying the Charter in the Supreme Court of Canada’s decision in Dickson v. Vuntut Gwitchin First Nation exemplify this dichotomy. This approach, however, reflects a false dilemma; it overlooks Indigenous constitutionalism’s ability to resolve the kinds of issues that the Charter aims to resolve, but without sacrificing Indigenous self-determination. To illustrate this point, this article applies one form of Indigenous constitutionalism— Anishinaabe constitutionalism grounded within an Anishinaabe lifeworld—to the fact …

Original Discontent, William Magnuson

Faculty Scholarship

There are many theories of constitutional interpretation. Most, but not all, of them assert that, in interpreting the Constitution’s provisions, we should start by taking seriously the intentions of the enactors, meaning, roughly speaking, its drafters, defenders and ratifiers. This Article argues that, in doing so, judges, scholars and policymakers have underestimated an important feature of the process of constitution-making: the discontent of the enactors themselves with the Constitution they were enacting. Time and again, during the Philadelphia Convention of 1787, during the penning of the Federalist Papers, and during the state ratifying conventions, the enactors expressed deep reservations about …

The Great Unsettling: Administrative Governance After Loper Bright, Cary Coglianese, Daniel E. Walters

Faculty Scholarship

“Chevron is overruled.” These three words surely captured more attention than any others in the U.S. Supreme Court’s thirty-five-page opinion in Loper Bright Enterprises v. Raimondo. For forty years, the Chevron doctrine had been virtually synonymous with administrative law. Now that the Court has taken a step that many scholars thought unfathomable even just a few years ago, speculation abounds about the possible downstream impacts of Loper Bright on both what agencies will be able to do in the future and how lower courts will respond when reviewing agency action. The vast majority of early expert commentaries suggest …

Moral Politics Theory Applied To Abortion: Utopias, Dystopias, And Dobbs, Susan Ayres

Faculty Scholarship

This article examines Moral Politics Theory (MPT) as a way to understand current tensions in the US concerning reproductive justice. MPT, as developed and researched for over thirty years by cognitive scientist, George Lakoff, provides a way to explain differences in political worldviews. According to Lakoff’s research in Moral Politics and Don’t Think of an Elephant!, conservatives tend to hold a strict-father model, and progressives hold a nurturant-parent model. People in the political middle tend to endorse both models; Lakoff labels those in the middle as “biconceptuals,” and discusses how this group is most susceptible to persuasion because metaphors frame …

The Urgency Of Artificial Intelligence Code Of Ethics, Tundjung Herning Sitabuana, Dixon Sanjaya, Ibra Fulenzi Amri, Nethan Nethan

Indonesia Law Review

The era of artificial intelligence has become a characteristic of industrial era 5.0 which has been used in various aspects. Potential economic value of AI has driven various forms of AI innovation development. Exploration of AI tends to override negative impacts of such developments. The emergence of ethical issues with presence of AI encourages the need for a law-based approach to establishing ethical standards to protect entire Indonesian nation. Therefore, this research was conducted to examine urgency for an AI code of ethics. This paper will normatively describe data qualitatively to answer urgency and development of AI code of ethics …

Kajian Komparatif Tentang Pengaturan Pelindungan Budaya Dalam Konstitusi Negara-Negara Asia Pasifik, Josua Satria Collins

Jurnal Konstitusi & Demokrasi

Culture is a fundamental element in shaping national identity and unity amidst diversity. Therefore, many countries incorporate cultural protection into their constitutions to ensure the sustainability of cultural heritage. The constitution not only serves as a legal foundation but also as a social engineering instrument to facilitate cultural development amid contemporary challenges. This study focuses on the Asia-Pacific region due to its high cultural diversity and the complex interaction between local traditions and globalization. Using a normative juridical method and a comparative approach, the study analyzes 54 constitutions from countries in the region. The findings indicate that the majority of …

Menakar Kekuatan Mengikat Putusan Mahkamah Konstitusi Dalam Pemberhentian Presiden Dan/Atau Wakil Presiden Di Indonesia, Sunarto Efendi, Sylli Meliora Sterigma, Nur Alfitra Mappuna

Jurnal Konstitusi & Demokrasi

Impeachment is a mechanism that allows for the dismissal of a President and/or Vice President before the end of their term. In countries that adopt a presidential system, such as Indonesia, the process and mechanism of impeachment are crucial to regulate, considering the possibility that the President and/or Vice President may commit serious violations or no longer meet the qualifications to regulate a country. This study examines the process and mechanism of dismissing the President and/or Vice President in Indonesia, as well as the ideal framework for such a process. Using a doctrinal legal research method with secondary data from …

Teori Kemaslahatan Sebagai Batasan Judicial Activism Dalam Pengujian Undang-Undang Oleh Mahkamah Konstitusi, Ali Alatas, Ficky M. Zulfickar, Patio Alfredo Nugraha Hutabarat

Jurnal Konstitusi & Demokrasi

In this paper, the concepts of judicial activism and judicial restraint are discussed as the way the Constitutional Court (MK) tests laws against the 1945 Constitution of the Republic of Indonesia (UUD 1945). Active judges can do new things to address legal vacuums or social change, but this can trigger criticism due to the potential for exceeding judicial authority. In contrast, judicial review emphasizes the self-restraint of judges to adhere to the legal text without creating new standards, providing legal stability but considered less responsive in handling complex issues. In addition, as a standard to balance the two approaches, this …

Participation Of Trans-Women In Females' Sports Competitions: Fairness Vs. Rights To Participating In Sports?, Muhamad Dzadit Taqwa, Valentino Rafael Carofin, Stefanie Gloria, Alvin Tjiang

Indonesia Law Review

A trans-woman is someone who is biologically male at birth and then undergoes gender-affirming surgery, which can include genital feminization surgery, or may not undergo gender-affirming surgery but undergoes other therapies such as cross-sex hormone therapy or other physical organ surgeries apart from genital surgery, in order to be identified as a woman. The participation of trans-women in females' sports has sparked a debate, addressing issues of fairness on one side and transgender rights to participate in sports on the other. The fairness argument is based on the physical advantages that males have when competing against females. Generally, male athletes …