Digital Commons Network^™

The Irony Of Humphrey's Executor & The Separation Of Powers Doctrine, Nicholas R. Barrow

St. Thomas Law Review

The vestiges of the Humphrey’s Executor1 exception for independent agencies are crumbling. Just as with Chevron, the Roberts Court—particularly in the turbulent wake of Free Enterprise, Lucia, and Seila Law—has seemed to suggest that Humphrey’s days are numbered. When Consumers’ Research v. Consumer Product Safety Commission finally arrived at the doorstep of the high Court, the inevitable had seemingly arrived—Humphrey’s was finally to fall. Yet there were not four votes to hear the case. The Fifth Circuit was so hotly divided amongst itself as to Humphrey’s continued meaning and applicability to modern administrative agencies that a bare-thin majority (9-8) concluded …

Clarifying The Constitutional Boundaries Of Income Taxation After Moore V. United States, Catherine Gluchowski

St. Thomas Law Review

Despite the significance of the term “income,” both the United States Supreme Court and the Internal Revenue Code do not provide an explicit definition of the term. This ambiguity causes the constitutionality of income taxation to remain a contested issue. Central to this ongoing debate is the issue of realization as a prerequisite for income taxation, exemplified by the case of Moore v. United States. In a landmark decision, the Ninth Circuit ruled that realization is not a constitutional requirement for Congress to impose a tax exempt from apportionment under the Sixteenth Amendment. This decision marked a pivotal departure from …

The Unconstitutionality Of Governor Youngkin's Felon Re-Enfranchisement Scheme (Or Lack Thereof): An Examination Of Hawkins V. Youngkin'S Challenge To Virginia's Current Felon Re-Enfranchisement Scheme, Olivia Rovin

William & Mary Journal of Race, Gender, and Social Justice

This Note argues that Governor Youngkin’s felon re-enfranchisement “scheme” violates the Constitution. Ultimately, I will be evaluating the argument made in Hawkins v. Youngkin, formerly known as Nolef Turns v. Youngkin, noting its strengths and its weaknesses. Part I describes both American history and Virginia’s specific history of denying people convicted of felonies their right to vote. It also details the Supreme Court case, Richardson v. Ramirez, in which the Court held that denying people convicted of a felony the right to vote is constitutional under the Equal Protection Clause. Part I also gives a brief history …

Manifesting A Shift In The "Overton Window": The Threat Of Project 2025 On The Lgbtq+ Community In Higher Education, Athena M. King, Sara Sanatkar

Political Science & Geography Faculty Publications

Since the first Trump administration, historically marginalized groups in the United States have been subjected to greater instances of bigotry and discrimination due to conservative influence on sociopolitical institutions. These actions suggest a shift in the "Overton Window," whereby policy preferences previously deemed "unacceptable" are given consideration in the mainstream, especially by conservative policy actors. "Project 2025" is a comprehensive plan to restructure the federal government according to conservative dictates in the second Trump administration. This article is an examination of how higher education may be impacted by this plan, especially as it relates to LGBTQ+ faculty, administration, staff, and …

Minor V. Happersett, Dobbs V. Jackson Women's Health Organization, And The Supreme Court's Refusal To Reconstruct America, Henry L. Chambers, Jr.

Law Faculty Publications

One hundred and fifty years ago, in the wake of the ratification of the Reconstruction Amendments, the United States Supreme Court decided Minor v. Happersett. In Minor, the Court ruled Missouri could continue to deny women the right to vote based on their sex. The decision was simply reasoned. In the absence of clear constitutional text requiring Missouri to provide the right to vote to women or proof that the right to vote was a right of citizenship, Missouri had no obligation to allow women to vote. Some states had banned women citizens from voting since the country’s founding. Missouri …

History's Identity Crisis, Allison Orr Larsen

Faculty Publications

Lower court judges across the country are struggling to manage the Supreme Court’s new “history and tradition” test that applies to Second Amendment challenges. This Article articulates one fundamental reason for the struggle: nobody is quite sure what a judge is actually doing when she evaluates claims about what happened in the past. Is it traditional legal reasoning— weighing evidence and looking for patterns? Is it fact-finding of the sort we think expert historians should testify about—conveying to a trial judge the best evidence we have about the purpose of colonial gun laws? Or is it a different sort of …

Sabbath Accommodations As A Civil Right: History, Title Vii, And The Path To Groff V. Dejoy, Isaac May

FIU Law Review

In Groff v. DeJoy, which concerned a Christian Sabbath observer, Jewish groups were vindicated by the Court’s overturning Hardison v. Transworld Airlines and strengthening Title VII’s protections for religion, particularly around employees’ Sabbath observance. This article positions Groff within the history of Jewish efforts to secure employment protections for Sabbath worship. Efforts to secure Sabbath accommodations were an outgrowth and expansion of early twentieth-century efforts to ensure Jews were protected by public accommodation laws and a product of attempts by litigators such as Leo Pfeffer to end mandatory Sunday closing laws in the mid-twentieth century. Sabbath accommodations became a critical …

Pozen And The Puzzle Of Counterfactuals, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

The Constitution and the War on Drugs, David Pozen’s carefully researched and brilliantly argued book, is both illuminating and disturbing: illuminating because it unearths forgotten moments when judicially formulated constitutional doctrine that could have ended or sharply restricted the War on Drugs were well within the Overton Window, and disturbing because it surfaces hard questions about historical contingency and the scope of the change that might have occurred in a counterfactual world. In this review, the author argues that the failure to specify both the nature of the counterfactual and the breadth of the alternative possibility have confused discussions …

The Civil Jury Trial Clause Of The Seventh Amendment, Renée Lettow Lerner

GW Law Faculty Publications & Other Works

This essay discusses the Civil Jury Trial Clause—also known as the Preservation Clause—of the Seventh Amendment to the U.S. Constitution. I provide background on English civil jury practice in common-law courts in the late eighteenth century and distinguish it from equity practice in the Court of Chancery. The essay describes Blackstone’s praise for the civil jury as well as the role the civil jury played in the events leading up to the American Revolution. The question of a federal constitutional right to civil jury trial provoked heated disputes in the Philadelphia Convention and the ratification debates. The ratification debates featured …

Family Regulation's Consent Problem, Anna Arons

Faculty Publications

The home is the most protected space in constitutional law. But family regulation investigators conduct millions of home searches a year. Under pressure, parents nearly always consent to these state agents’ entry into the most private areas of their lives.

This Article identifies the coercive forces—not least the threat of family separation—that drive parents to consent to home searches. Drawing on primary sources and case law examining consent in criminal cases, it shows that common family regulation investigation tactics render consent involuntary and the ensuing searches unconstitutional. And yet, it argues, the Constitution is not enough. Though constitutional litigation could …

The Abuses Of History In Constitutional Interpretation, Sherif Girgis

Journal Articles

From the Article

Jack Balkin’s Memory and Authority powerfully describes the kaleidoscopic quality of historical arguments in constitutional law. The book also moves easily between description and prescription. This Essay explores whether it moves too easily from one to the other. I consider whether the book’s analysis is so keen to capture our actual practices that it leaves itself too few resources for evaluating them—whether its account of history’s uses, made expansive by a zeal to fit how lawyers actually reason, crowds out any robust account of how they ought not to reason. While I am inclined to think so, …

Critical Constitutional Law And The Alito Palimpsest, William J. Aceves

Faculty Scholarship

This article uses an innovative metaphor—the palimpsest—and a provocative philosophical tradition—genealogy—to generate a new theory of critical constitutional law. It is a theory born from this unique moment in time.

Originalism is now ascendant at the Supreme Court. Its search for essential origins in history as a method for grounding extant constitutional values was used in Dobbs v. Jackson Women’s Health Organization to end recognition of the fundamental right to abortion. The Court’s conservative majority has made clear that Dobbs is only the beginning.

Critical constitutional law uses the metaphor of the palimpsest to study law and the search for …

Climate Change And Constitutional Overreach, Jonathan H. Adler

Faculty Publications

The failure of the political process to produce meaningful climate mitigation policies has encouraged activists to pursues aggressive and innovative litigation strategies. An increasing number of climate-related lawsuits seek to control greenhouse gas emissions, impose liability on fossil fuel producers, or otherwise force greater action on climate change. In many of these cases, litigants have made aggressive constitutional claims that stretch the bounds of existing constitutional doctrine and threaten to entrench climate policies outside of the traditional political process. This Article critically assesses some of the constitutional arguments made in climate cases, including Massachusetts v. EPA and Juliana v. U.S. …

The Re-Examination Clause Of The Seventh Amendment, Renée Lettow Lerner

GW Law Faculty Publications & Other Works

This essay discusses the origins, history, and current interpretation of the Re-examination Clause of the Seventh Amendment to the U.S. Constitution. As Justice Joseph Story declared, the Re-examination Clause is separate from the right to civil jury trial in the Amendment’s Preservation Clause. The Re-examination Clause states that no fact tried by a jury shall be “re-examined” in federal court except by the rules of “the common law.” This provision had no counterpart in the state constitutions. The essay explains the methods of review of jury verdicts in English common-law courts in the late eighteenth century, focusing on the remedy …

Can The Law Of Democracy Save Democracy?, Helen L. Norton

Publications

No abstract provided.

What Belongs In A Constitutional Law Casebook?, Ernest A. Young

Faculty Scholarship

No abstract provided.

Teaching Firearms Law: One Big Opportunity And Three Pedagogical Challenges, Joseph Blocher, Jacob D. Charles, Darrell A.H. Miller

Faculty Scholarship

The U.S. Supreme Court’s groundbreaking 2008 decision in District of Columbia v. Heller ushered in a new era for the Second Amendment: one in which the right to keep and bear arms, long dormant as a matter of practical impact and even “embarrassing” as a matter of legal scholarship, vaulted into the front ranks of constitutional law. The Court itself has only revisited the Amendment a few times since then—albeit once by revolutionizing the doctrine. Meanwhile, lower courts have issued thousands of decisions giving shape to the right, while scholars have generated work that is increasingly deep, diverse, and challenging. …

Cost–Benefit Analysis, Matthew D. Adler

Faculty Scholarship

This chapter will address the place of cost–benefit analysis (CBA) in constitutional law, by way of a case study. I’ll describe, and puzzle over, CBA’s absence from most U.S. constitutional doctrines, notwithstanding its major role in U.S. administrative law. The general questions that I seek to illuminate are by no means limited to the U.S. How might CBA figure within the tests that constitutional courts use to adjudicate alleged violations of constitutional rights? How might it serve to determine the structure of constitutional institutions? Would it be justified for CBA to play these doctrinal roles? But these general questions are …

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 …

Resisting Federal Preemption, Desiree Leclercq

Scholarly Works

One of the most pressing issues in constitutional law is how states may—and should—resist federal preempting laws and policies with which they disagree. It’s a problem faced by red and blue states alike in an age of extreme political polarization. Despite having legitimate reasons to resist the federal government on matters that affect local citizens and interests, states seem to have few options. Conventional wisdom is that they engage in either direct resistance through litigation that challenges the constitutionality of preempting laws, or evasion by quietly enacting arguably non-compliant laws hoping to avoid enforcement. Both strategies adopt a belligerent stance …

A Constitutional Right To Exclude Evidence, Colin Miller

Texas A&M Law Review

The Supreme Court has held that criminal defendants have a constitutional right to introduce evidence and a constitutional right to receive evidence, but it has never recognized a constitutional right to exclude evidence. Specifically, the Supreme Court has issued numerous rulings finding that the Due Process Clause demands that (1) defendants have the right to present a defense that trumps the rules of evidence; (2) the prosecution must disclose material exculpatory evidence to the defense; (3) the State has certain duties to preserve evidence so that it can be disclosed to the defense; and (4) any discovery obligations on defendants …

Righting In The Novel Form: Memories Of The State Of Exception And Non-Juridical Rights In Ruth Firmeza's Gera, José Duke Bagulaya

Kritika Kultura

This monograph1 explores the relationship between human rights and literature through a reading of Ruth Firmeza’s novel Gera [War], which depicts the early years of the world’s longest non-international armed conflict: the communist insurgency in the Philippines. The monograph reads Gera as a literary representation of the state of exception and its corollary, righting—the people’s resistance under such juridical order. Through its discontinuous and episodic narrative consisting of short memories of the martial law years in the Philippines, the novel recalls the chaotic world of the state of exception. This is a world where law and time are suspended, rights …

State V. Sweatt: An Examination Of The Current Confusion In Fourth Amendment Standing, John Archer Hobson

Maine Law Review

In State v. Sweatt the Maine Law Court held that an owner of gems being sold on consignment in a third party's store has standing under the fourth amendment to contest the seizure of the gems. The movants in Sweatt were the targets of several police searches during October and November of 1980. During these searches the police seized tourmaline gemstones which were alleged to have been stolen from Dale Sweatt's former business partner, and miscellaneous personal items belonging to the Sweatts. Subsequently, the Sweatts moved for suppression and return of all these articles. The superior court granted the movants' …

Religious Beliefs, Unemployment Benefits, And Constitutional Choices: Flynn V. Maine Employment Security Commission, Mary Ann Lynch

Maine Law Review

The last decade has seen a growing number of individuals adopt fundamentalist, "born-again" Christianity. For these people, religion requires more than observance of a sabbath, weekly services, or financial commitment. Fundamentalist religion often requires its adherents to spread their religious beliefs with missionary zeal. Religion may be a constant preoccupation and as such, is brought into the work place. Thus, there is potential for conflict between the needs and demands of employers and the exercise of one's religion. While the free exercise clause of the first amendment may not always provide protection for employees against employers' requirements, it nevertheless serves …

Stewart V. Inhabitants Of Durham: An Exclusionary Purpose Ignored, Peter Alexander Meyer

Maine Law Review

Exclusionary zoning of mobile homes has become an increasingly important issue in Maine because of escalating costs of conventional housing and rising unmet housing needs. Although towns may regulate mobile home or any other housing use in order to foster public health, safety, morals, or general welfare, they may not enact a zoning ordinance to exclude people of lower income in an attempt to avoid the "increased governmental costs and the stresses upon public services which generally accompany such an incursion." In Stewart v. Inhabitants of Durham, the Maine Supreme Judicial Court was confronted with an exclusionary purpose in a …

Constitutional Issues Raised By The Civil-Criminal Dichotomy Of The Maine Oui Law, Bruce W. Smith

Maine Law Review

Moving to the forefront of a national trend, the Maine Legislature undertook a thorough reform of its operating under the influence (OUI) law in 1981. The new statute was billed "the toughest in the nation," largely because of a provision for mandatory prison sentences. The statute's most radical provision is not the mandatory prison term, however, but a section which gives prosecutors the option to treat less egregious first offenses as civil infractions rather than crimes. The section generates the broad issue addressed by this Comment: may trial by jury and other constitutional protections formerly afforded OUI defendants be denied …

Maine's Iolta Proposal: A Source Of Supplemental Funding For Legal Services, J. Gordon Scannell Jr.

Maine Law Review

Lawyers often hold certain client funds for short periods of time. Generally, those funds must be kept separate from funds belonging to the lawyer or law firm. Occasionally the clients' funds are deposited in individual, interest bearing accounts and the interest generated is credited to the particular client, but more often the amount or length of the deposit does not warrant the opening of an individual account and the funds are aggregated in a general, noninterest bearing trust account. A number of states have implemented programs, commonly referred to as Interest on Lawyers' Trust. Accounts (IOLTA), which allow attorneys to …

The Primacy Method Of State Constitutional Decisionmaking: Interpreting The Maine Constitution, Glen S. Goodnough

Maine Law Review

The past fifteen years have witnessed the steady growth of both the theory and practice of state constitutional law. Initial inquiry focused on whether state supreme courts should provide their residents more expansive substantive and procedural rights under their state constitutions than required by United States Supreme Court interpretations of the federal Constitution. Given the plethora of state constitutional decisions expanding rights beyond the federally required minimum, or "floor," it is apparent that a large number of state supreme courts have settled the question of whether they will in fact interpret their state constitutions in such a manner. Nevertheless, lingering …

Originalism's Selection Problem, Darrell A.H. Miller

William & Mary Bill of Rights Journal

This Essay examines the problem of selection with any originalist theory and what it means for constitutional adjudication. Part I surveys the major branches of originalism, explains how each share a commitment to the pursuit of objective, knowable, falsifiable fact, and then use that fact as a fixed point to constrain discretion. Part II discusses how each of these theories are vulnerable to methodological challenges familiar to all empirical projects. Part III explores the implications of these methodological challenges for originalism in particular and for constitutional doctrine and theory more generally.

This abstract has been taken from the author's introduction.

We Are All Cafeteria Originalists Now (And We Always Have Been), Jack M. Balkin

William & Mary Bill of Rights Journal

In Memory and Authority, I argue that Americans, both in politics and in constitutional culture, are "‘cafeteria originalists.’ They pick and choose when to follow the views of the founders, framers, or adopters (as they understand them) and often artfully recharacterize these principles to support contemporary political and legal arguments.” Like customers in a cafeteria who take the chocolate cake and leave the boiled kale, Americans pick the features of the framers they like to support their arguments, and leave other, less savory, features behind.

[...]

My central claim is that cafeteria originalism is not a pathology or a …