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Presidents And The U.S. Constitution: The Executive’S Role In Interpreting The Supreme Law Of The Land, Mitchell Scacchi

Honors Theses and Capstones

In 1832, President Andrew Jackson issued a veto message claiming the same duty as the Supreme Court to interpret the U.S. Constitution. Do modern presidents exercise the principal role in interpreting the U.S. Constitution that President Jackson claimed was their duty, and, if so, in what ways do they choose to articulate their interpretations? The hypothesis is that modern presidents have exercised a principal role in interpreting the U.S. Constitution similar to the interpretative duty expressed by President Jackson, and they perform this duty, in part, through the issuance of veto messages and signing statements. After a content analysis of …

Free Speech And Democracy: A Primer For Twenty-First Century Reformers, Toni M. Massaro, Helen Norton

Publications

Left unfettered, the twenty-first-century speech environment threatens to undermine critical pieces of the democratic project. Speech operates today in ways unimaginable not only to the First Amendment’s eighteenth-century writers but also to its twentieth-century champions. Key among these changes is that speech is cheaper and more abundant than ever before, and can be exploited — by both government and powerful private actors alike — as a tool for controlling others’ speech and frustrating meaningful public discourse and democratic outcomes.

The Court’s longstanding First Amendment doctrine rests on a model of how speech works that is no longer accurate. This invites …

Menstrual Dignity And The Bar Exam, Marcy L. Karin, Margaret E. Johnson, Elizabeth B. Cooper

Faculty Scholarship

This Article examines the issue of menstruation and the administration of the bar exam. Although such problems are not new, over the summer and fall of 2020, test takers and commentators took to social media to critique state board of law examiners’ (“BOLE”) policies regarding menstruation. These problems persist. Menstruators worry that if they unexpectedly bleed during the exam, they may not have access to appropriately sized and constructed menstrual products or may be prohibited from accessing the bathroom. Personal products that are permitted often must be carried in a clear, plastic bag. Some express privacy concerns that the see-through …

The Case Of The Dishonest Scrivener: Gouverneur Morris And The Creation Of The Federalist Constitution, William M. Treanor

Georgetown Law Faculty Publications and Other Works

At the end of the Constitutional Convention, the delegates appointed the Committee of Style and Arrangement to bring together the textual provisions that the Convention had previously agreed to and to prepare a final constitution. Pennsylvania delegate Gouverneur Morris drafted the document for the Committee, and, with few revisions and little debate, the Convention adopted Morris’s draft. For more than two hundred years, questions have been raised as to whether Morris covertly altered the text in order to advance his constitutional vision, but modern legal scholars and historians studying the Convention have either ignored the issue or concluded that Morris …

Testa, Crain, And The Constitutional Right To Collateral Relief, Carlos Manuel Vázquez, Stephen I. Vladeck

Georgetown Law Faculty Publications and Other Works

In Montgomery v. Louisiana, the U.S. Supreme Court held that state prisoners have a constitutional right to relief from continued imprisonment if the prisoner’s conviction or sentence contravenes a new substantive rule of constitutional law. Specifically, the Court held that prisoners with such claims are constitutionally entitled to collateral relief in state court—at least if the state courts are open to other claims for collateral relief on the ground that their continued imprisonment is unlawful. In our article, The Constitutional Right to Collateral Post-Conviction Relief, we argued that, under two lines of Supreme Court decisions interpreting the Supremacy …

From After-School Detention To The Detention Center: How Unconstitutional School-Disruption Laws Place Children At Risk Of Prosecution For “Speech Crimes”, Frank Lomonte, Ann Marie Tamburro

Lewis & Clark Law Review

As unrest erupts across the country over issues of police violence and race, how and when police use their authority inside schools is receiving renewed scrutiny. Students of color are uniquely at risk of being subject to overzealous arrest as a result of a confluence of dangerous factors: Young people are constantly surveilled throughout the school day, constitutional search-and-seizure protections are diminished, and police have the benefit of not just the criminal laws that would apply in the “real world,” but a host of vague and subjective “speech crimes” for which they can justify detention, search, and arrest. This Article …

The Resilience Of Substantive Rights And The False Hope Of Procedural Rights: The Case Of The Second Amendment And The Seventh Amendment, Renée Lettow Lerner

GW Law Faculty Publications & Other Works

At first glance, there seem to be strong affinities between the Second Amendment and the Seventh Amendment. Both the right to keep and bear arms and the right to civil jury trial potentially empower ordinary citizens. Both could check elites.

But there are crucial differences between these rights. I focus on two of them here. The first is relatively straightforward; it concerns individual accountability—or the lack thereof—and the ability to understand responsibilities. Gun owners and users generally have individual responsibility for their actions, and the ability to understand their responsibilities. In contrast, by design civil jurors lack individual responsibility. And …

In Search Of The Presumption Of Regularity, Aram A. Gavoor, Steven Platt

GW Law Faculty Publications & Other Works

The presumption of regularity is an imprecise quasi-deference principle that federal courts apply in varying ways to presume federal officers and employees lawfully and consistently discharge their official duties. The presumption gained national significance during the Trump Administration in several key cases in which it was implicated, but never described by the Supreme Court. While the literature and judicial opinions have invoked the presumption, there has been sparse scholarly accounting for its contours, value, and legitimacy. This Article is the first to trace the contemporary domain of the presumption and its applications from its pre-Founding Era source and normatively-recognized 1926 …

Should Justices Be Historians? Justice Scalia’S Opinion In District Of Columbia V. Heller, Todd B. Adams

University of San Francisco Law Review

No abstract provided.

What’S In A Name? Strict Scrutiny And The Right To A Public Trial, Stephen Smith

Faculty Publications

The right to a public trial has only rarely been addressed by the Supreme Court, but in Waller v. Georgia, the Court set forth a test for determining when it is appropriate to close a courtroom to the public, despite the general public trial command. The language of the Waller test suggests great rigor. This essay proposes a reconsideration of the test for courtroom closures, rethinking whether traditional strict scrutiny thinking is appropriate in this constitutional and practical context. That said, this essay does not argue with Waller’s broad outlines. Courts making closure decisions should consider reasons and …

Supreme Court Precedent And The Politics Of Repudiation, Robert L. Tsai

Faculty Scholarship

This is an invited essay that will appear in a book titled "Law's Infamy," edited by Austin Sarat as part of the Amherst Series on Law, Jurisprudence, and Social Thought. Every legal order that aspires to be called just is held together by not only principles of justice but also archetypes of morally reprehensible outcomes, and villains as well as heroes. Chief Justice Roger Taney, who believed himself to be a hero solving the great moral question of slavery in the Dred Scott case, is today detested for trying to impose a racist, slaveholding vision of the Constitution upon America. …

A Proper Burial, Robert L. Tsai

Faculty Scholarship

This is an invited response to Professor Mark Killenbeck's article, "Sober Second Thoughts? Korematsu Reconsidered." In his contrarian piece, Killenbeck argues that Korematsu was defensible, albeit on narrow grounds: it advanced the development of strict scrutiny. He goes on to argue that comparisons between the internment case and the Supreme Court's Muslim travel ban case are overwrought and that the latter case, too, is defensible. I'm not convinced. First, to say that a ruling is defensible is not saying much; far better for critiques to be tethered to sterner standards. Second, after all these years, Korematsu remains a poorly reasoned …

Taking The Constitution Away From The Supreme Court Of India, Amal Sethi

National Law School of India Review

In very few countries worldwide, is constitutionalism confined to the apex court’s courtrooms, the way it is in India. This facet of Indian political life has been taken so much for granted that rarely have people stopped to examine whether it is even desirable. This article will argue that on a closer examination, the Supreme Court is an inefficient forum to realise the Constitution’s promises and more so in today’s political climate. On the contrary, India’s Supreme Court centric constitutionalism raises more challenges than it resolves. This article will suggest that there is an urgent need to usher in a …

Oversight Riders, Kevin Stack, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

Congress has a constitutionally critical duty to gather information about how the executive branch implements the powers Congress has granted it and the funds Congress has appropriated. Yet in recent years the executive branch has systematically thwarted Congress’s powers and duties of oversight. Congressional subpoenas for testimony and documents have met with blanket refusals to comply, frequently backed by advice from the Department of Justice that executive privilege justifies withholding the information. Even when Congress holds an official in contempt for failure to comply with a congressional subpoena, the Department of Justice often does not initiate criminal sanctions. As a …

A New Labor For Deep Democracy: From Social Democracy To Democratic Socialism, Mark Barenberg

Faculty Scholarship

Conventional workplace law includes the law of collective bargaining and employment contracts. This chapter argues that, to fully understand how law constructs worker power, industrial democracy, and political democracy, workplace law should greatly broaden in scope. The “new labor law” should encompass components of many fields of law that influence worker power and democracy as much as many components of conventional labor law. These additional components are lodged in domestic and international finance law, social wage law, constitutional law, communication law, tax law, and many more fields. The chapter applies the new labor law to critique and offer proposals to …

The Social Science Approach To International Law, Daniel Abebe, Adam S. Chilton, Tom Ginsburg

Faculty Scholarship

For over a hundred years, scholars have argued that international law should be studied using a “scientific” approach. Throughout the twentieth century, however, the most prominent methods used to study international law primarily consisted of different theoretical and analytical claims about how international law should be developed, interpreted, and critiqued. It is only in the first two decades of the twenty-first century that the conventional social science approach to research — identifying a specific question, developing hypotheses, using a research design to test those hypotheses based on some form of qualitative or quantitative data, and presenting conclusions, all while acknowledging …

Elected-Official-Affiliated Nonprofits: Closing The Public Integrity Gap, Richard Briffault

Faculty Scholarship

Recent years have witnessed the growing use by elected officials, particularly state and local chief executives, of affiliated nonprofit organizations to advance their policy goals. Some of these organizations engage in public advocacy to advance a governor’s or mayor’s legislative program. Others operate more like conventional charities, raising philanthropic support for a range of governmental social welfare programs. Elected officials fundraise for these organizations, which are often staffed by close associates of those elected officials, and the organizations’ public communications frequently feature prominently the name or likeness of their elected-official sponsor. As these organizations do not engage in electioneering, they …

The Democracy Principle In State Constitutions, Jessica Bulman-Pozen, Miriam Seifter

Faculty Scholarship

In recent years, antidemocratic behavior has rippled across the nation. Lame-duck state legislatures have stripped popularly elected governors of their powers; extreme partisan gerrymanders have warped representative institutions; state officials have nullified popularly adopted initiatives. The federal constitution offers few resources to address these problems, and ballot-box solutions cannot work when antidemocratic actions undermine elections themselves. Commentators increasingly decry the rule of the many by the few.

This Article argues that a vital response has been neglected. State constitutions embody a deep commitment to democracy. Unlike the federal constitution, they were drafted – and have been repeatedly rewritten and amended …

Pandemic, Protest, And Agency: Jury Service And Equal Protection In A Future Defined By Covid-19, Patrick C. Brayer

Faculty Works

This essay calls for an expansive view of Fourteenth Amendment equal protection against the discriminatory empanelment of juries grounded upon a culture of systemic racism. For an individual juror fundamental elements of survival during a pandemic are access to health care, safe transportation, and connective technology. Yet, structural and systemic racism precludes many potential jurors of color from securing these necessary supports, thus denying them the ability to be recognized on juror source list or accommodated for jury service. Jury service is a direct and impactful act of citizen agency over the justice system, and the systemic exclusion of individuals …

The First Amendment And Algorithms, Stuart M. Benjamin

Faculty Scholarship

No abstract provided.

The City’S Second Amendment, Dave Fagundes, Darrell A. H. Miller

Faculty Scholarship

Cities are increasingly common sites of contestation over the scope and meaning of the Second Amendment. Some municipalities have announced their opposition to firearm restrictions by declaring themselves Second Amendment sanctuaries. Others have sought to curtail gun violence by passing restrictive local regulations. Still others have responded to police violence by moving to demilitarize, disarm, or even disband their police forces. The burgeoning post-Heller legal literature, though, has largely overlooked the relationship between cities, collective arms bearing, and the Second Amendment. In sum, to what extent do cities themselves have a right to keep and bear arms? This Article tackles …

When Guns Threaten The Public Sphere: A New Account Of Public Safety Regulation Under Heller, Joseph Blocher, Reva B. Siegel

Faculty Scholarship

Government regulates guns, it is widely assumed, because of the death and injuries guns can inflict. This standard account is radically incomplete—and in ways that dramatically skew constitutional analysis of gun rights. As we show in an account of the armed protesters who invaded the Michigan legislature in 2020, guns can be used not only to injure but also to intimidate. The government must regulate guns to prevent physical injuries and weapons threats in order to protect public safety and the public sphere on which a constitutional democracy depends.

For centuries the Anglo-American common law has regulated weapons not only …

Second Amendment Equilibria, Darrell A. H. Miller

Faculty Scholarship

Equilibrium-adjustment theory, first articulated by Professor Orin Kerr for Fourth Amendment cases, holds promise for rationalizing Second Amendment doctrine going forward. Like the Fourth Amendment, the Second Amendment suggests an initial equilibrium—or actually, multiple equilibria—between government power to possess, use, and control the implements of violence and private power to do the same. And, like Fourth Amendment doctrine, Second Amendment doctrine must contend with both technological and societal change. These changes—e.g., more deadly and accurate weapons, more public acceptance of concealed carry—can upset whatever initial balance of gun rights and regulation there may have been in the initial state. Although …

Judges As Superheroes: The Danger Of Confusing Constitutional Decisions With Cosmic Battles, H. Jefferson Powell

Faculty Scholarship

No abstract provided.

Second Amendment Animus, Jacob D. Charles

Faculty Scholarship

The Supreme Court’s animus doctrine has proven surprisingly adaptive. The Court has employed the doctrine not just in the typical equal protection context from which it arose, but also to claims that religious conduct or beliefs are the target of legislative hostility. Animus law and scholarship are flourishing after several invocations of the doctrine in the high Court’s recent Terms. Coinciding with these developments, gun-rights advocates and other supporters have increasingly railed against the hostility with which they believe government officials are treating the Second Amendment. This Essay connects these developments, mapping three types of gun-supporter claims that sound in …

John Marshall Harlan And Constitutional Adjudication: An Anniversary Rehearing, H. Jefferson Powell

Faculty Scholarship

No abstract provided.

Tainted Precedent, Darrell A. H. Miller

Faculty Scholarship

No abstract provided.

Government Falsehoods, Democratic Harm, And The Constitution, Helen Norton

Publications

No abstract provided.

Litigation As Education: The Role Of Public Health To Prevent Weaponizing Second Amendment Rights, Michael Ulrich

Faculty Scholarship

Tobacco litigation was unquestionably successful, but it is dangerous to expect that it can be easily duplicated. An unrealistic reliance on litigation as a regulatory measure can blind public health advocates to other mechanisms of change. And that includes litigation as a means of enabling actual regulation. Firearms and the gun violence epidemic provides a useful case study. The Protection of Lawful Commerce in Arms Act (PLCAA) essentially bars litigation as a regulatory tool for firearms. This legislation means every time someone pulls the trigger, they become the party to blame. Soto v. Bushmaster Firearms presents a rare exception based …

Originalism From The Soft Southern Strategy To The New Right: The Constitutional Politics Of Sam Ervin Jr, Logan E. Sawyer Iii

Scholarly Works

Although originalism’s emergence as an important theory of constitutional interpretation is usually attributed to efforts by the Reagan administration, the role the theory played in the South’s determined resistance to civil rights legislation in the 1960s actually helped create the Reagan coalition in the first place. North Carolina Senator Sam Ervin Jr., the constitutional theorist of the Southern Caucus, developed and deployed originalism because he saw its potential to stymie civil rights legislation and stabilize a Democratic coalition under significant stress. Ervin failed in those efforts, but his turn to originalism had lasting effects. The theory helped Ervin and other …