Law Commons^™

Unity And Dissent: Exploring The United States Constitution Ratification Among The States, Luke Wyatt

Honors College Theses

The research presented here, analyzes the states in 1787 and the ratification Convention of five states: Delaware, New Jersey, Georgia, New York, and Virginia. There were three states that ratified the United States Constitution unanimously while others had great opposition by anti-federalist. The research analyze why those three states ratified the constitution unanimously while other states had great opposition for it and supported the articles of confederation.

The Mad Hatter’S Quip: Looking For Logic In The Independent State Legislature Theory, Nicholas Maggio, Foreword By Brendan Buschi

Touro Law Review

The Supreme Court is set to hear a case that threatens the bedrock of America’s democracy, and it is not clear how it will shake out. The cumbersomely named “Independent State Legislature Theory” is at the heart of the case Moore v. Harper, which is before the Supreme Court this term. The theory holds that state legislatures should be free from the ordinary bounds of state judicial review when engaged in matters that concern federal elections. Despite being defeated a myriad of times at the Supreme Court, the latest challenge stems from a legal battle over North Carolina’s redistricting maps. …

Rpl, Crt, & Latcrit: "Finding The 'Me' In The Legal Academy", Roberto L. Corrada

Sturm College of Law: Faculty Scholarship

The idea of a colorblind society and constitution is a dream, not reality. Importantly, the idea of colorblindness has been used to hijack laws and constitutional provisions specifically created to right societal wrongs against minoritized persons, especially Black persons. Take for example, the recent controversy surrounding affirmative action in higher education.The Fourteenth Amendment of the United States Constitution and Title VI of the Civil Rights Act of 1964, both created to secure the rights of Black citizens, have been co-opted to instead deprive them of opportunities. The latest example of this is a Supreme Court case decided this past summer—Students …

Constitutional Interpretation And Zombie Provisions, Michael L. Smith

Faculty Articles

The United States Constitution and state constitutions contain numerous zombie provisions, including language restricting marriage to relationships between one man and one woman, voter literacy test requirements, disqualification of atheists from serving in office or testifying as witnesses, and pervasive gendered language restricting rights and offices to men alone. Though these provisions are unenforceable due to subsequent amendment, determinations of federal unconstitutionality, or preemption by federal laws, they live on in constitutional text.

This Article addresses the danger of these zombie provisions that has, thus far, been overlooked the prospect that zombie provisions may influence the interpretation of still-living constitutional …

The Apparition Amendment: The Potential Effects Of The Addition Of A Federal Equal Rights Amendment To The United States Constitution In A Post-Dobbs United States, Alexa Liverano

Journal of Race, Gender, and Ethnicity

This Note will explore the feasibility of amending the federal Constitution to add an Equal Rights Amendment, and will outline previous attempts to pass such an amendment. It will also explore the potential ramifications of the additions of such an amendment. This Note will also inspect the language of Equal Rights Amendments within State constitutions and discuss what language ought to be included should a federal amendment be published in light of the United States Supreme Court’s decision in Dobbs. Part one will consider the legal viability of the Equal Rights Amendment of 1972 today. Part two will explore the …

Separation Of Church And Law: The Ministerial Exception In Demkovich V. St. Andrew The Apostle Parish, Jonathan Murray

University of Colorado Law Review

Religious freedom is increasingly invoked to defeat liability for behavior that has long been regulated under accepted, neutral law, an argument to which many courts and judges appear receptive. One such area of law seeing this activity is the ministerial exception-a judicial principle recognized under the First Amendment. The ministerial exception guarantees religious organizations' discretion in how they select their "ministers,"or religious employees dedicated to the organization's religious mission. However, current law lacks clarity regarding the application of the exception to an organization's treatment of its ministers. Recently, the Seventh Circuit, sitting en banc, chose to categorically expand the application …

Pathways To Justice: Positive Rights, State Constitutions, And Untapped Potential, Dustin Coffman

Marquette Benefits and Social Welfare Law Review

Positive rights, as a concept, are nothing new. Though they may not have always had such a deceptively unequivocal name, positive rights have existed in various forms and mediums throughout history. They've been utilized, underutilized, and, in some cases, outright ignored. At their core, positive rights are the imposition of an obligation upon the state to fulfill some declared right or benefit. One basis for this imposition is that because citizens give up certain rights by being parties to the "social contract," they should be entitled to certain positive protections guaranteed by the state created by way of said "contract." …

The Fourteenth Amendment And The Heart Of The Constitution, Guy Chet

SLU Law Journal Online

Since the nineteenth century, Americans have worked consistently to liberate their national government from the Constitutional constraints placed on it by Madison and his colleagues. This effort has transformed the United States from a federated republic in which local communities governed themselves into a modern managerial nation-state that is governed from the center. In this article, Dr. Guy Chet argues that the key to this transformation – of the Constitution and of the United States – was the Fourteenth Amendment.

Unclear And Unestablished: Exploring The Supreme Court/Tenth Circuit Disconnect In Qualified Immunity Jurisprudence, Josiah Cohen

University of Colorado Law Review Forum

No abstract provided.

October 27, 2020: Will The Supreme Court Survive This Treachery?, Bruce Ledewitz

Hallowed Secularism

Blog post, “Will the Supreme Court Survive This Treachery?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

August 7, 2020: Latitia James's Tyranny, Bruce Ledewitz

Hallowed Secularism

Blog post, “ Latitia James's Tyranny“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

July 26, 2020: No Federal Police Power, Bruce Ledewitz

Hallowed Secularism

Blog post, “No Federal Police Power“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

July 19, 2020: Trump Threatens University Tax Exempt Status, Bruce Ledewitz

Hallowed Secularism

Blog post, “Trump Threatens University Tax Exempt Status“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

July 1, 2020: Originalism Is Dead, Bruce Ledewitz

Hallowed Secularism

Blog post, “Originalism Is Dead“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

May 5, 2020: Preparing The Ground To Overrule Roe?+A5, Bruce Ledewitz

Hallowed Secularism

Blog post, “Preparing the Ground to Overrule Roe?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Is The Right To Abortion Still Specially Protected?, John M. Greabe

Law Faculty Scholarship

[excerpt] Last week, in June Medical Services v. Russo, the Supreme Court heard arguments in a case that once again raises questions about the extent to which the Constitution protects a woman's right to end a pregnancy. But the way in which the court resolves the case is likely to reveal more than just its views on abortion rights.

This column, the first in a series of three, describes the legal and historical path that led to June Medical Services. The next two will explore what the case suggests about, respectively, how the current court will treat constitutional …

Protecting The States From Electoral Invasions, Drew Marvel

William & Mary Bill of Rights Journal

Since the 2016 U.S. presidential election, the threat of foreign interference in U.S. elections has loomed large in the minds of the American public. During the 2016 campaign season, Russian government-backed hackers infiltrated the networks and computers of the Democratic National Committee (DNC), the Democratic Congressional Campaign Committee (DCCC), and various campaign officials, harvesting private information and installing spyware and malware for ongoing intelligence purposes. U.S. intelligence officials have indicated that, using similar tactics, the Russian hackers also targeted election systems and officials in all fifty states, successfully breaching at least two of those states’ election systems, Illinois and Florida. …

"Great Variety Of Relevant Conditions, Political Social And Economic": The Constitutionality Of Congressional Deadlines On Amendment Proposals Under Article V, Danaya C. Wright

William & Mary Bill of Rights Journal

Within a year or two, the thirty-eighth state is likely to ratify the Equal Rights Amendment (ERA), setting up an unprecedented constitutional challenge. The ERA was proposed with a seven-year deadline in the resolving clause, establishing the mode of ratification. That was a shift from earlier precedents in which a deadline had been placed in the text of the amendment proposal itself. Article V is annoyingly silent on the issue of congressional deadlines in amendment proposals, and the Supreme Court has never addressed the issue of a deadline that could void an otherwise properly ratified amendment. The practice of placing …

Rethinking Judicial Minimalism: Abortion Politics, Party Polarization, And The Consequences Of Returning The Constitution To Elected Government, Neal Devins

Neal E. Devins

No abstract provided.

The Exceptions Clause As A Structural Safeguard, Tara Leigh Grove

Tara L. Grove

Scholars have long treated the Exceptions Clause of Article III as a serious threat to the Supreme Court’s central constitutional function: establishing definitive and uniform rules of federal law. This Article argues that scholars have overlooked an important function of the Clause. Congress has repeatedly used its broad “exceptions power” to facilitate, not to undermine, the Supreme Court’s constitutional role. Drawing on insights from social science, this Article asserts that Congress has an incentive to use its control over federal jurisdiction to promote the Court’s role in settling disputed federal questions. Notably, this argument has considerable historical support. When the …

The Article Ii Safeguards Of Federal Jurisdiction, Tara Leigh Grove

Tara L. Grove

Jurisdiction stripping has long been treated as a battle between Congress and the federal judiciary. Scholars have thus overlooked the important (and surprising) role that the executive branch has played in these jurisdictional struggles. This Article seeks to fill that void. Drawing on two strands of social science research, the Article argues that the executive branch has a strong incentive to use its constitutional authority over the enactment and enforcement of federal law to oppose jurisdiction-stripping measures. Notably, this structural argument has considerable historical support. The executive branch has repeatedly opposed jurisdiction-stripping proposals in Congress. That has been true even …

Standing Outside Article Iii, Tara Leigh Grove

Tara L. Grove

The U.S. Supreme Court has insisted that standing doctrine is a “bedrock” requirement only of Article III. Accordingly, both jurists and scholars have assumed that the standing of the executive branch and the legislature, like that of other parties, depends solely on Article III. But I argue that these commentators have overlooked a basic constitutional principle: federal institutions must have affirmative authority for their actions, including the power to bring suit or appeal in federal court. Article III defines the federal “judicial Power” and does not purport to confer any authority on the executive branch or the legislature. Executive and …

A (Modest) Separation Of Powers Success Story, Tara Leigh Grove

Tara L. Grove

No abstract provided.

Professional Rights Speech, Timothy Zick

Timothy Zick

Some regulations of professional-client communications raise important, but sofar largely overlooked, constitutional concerns. Three recent examples of professional speech regulation-restrictions on physician inquiries regarding firearms, "reparative" therapy bans, and compelled abortion disclosures-highlight an important intersection between professional speech and constitutional rights. In each of the three examples, state regulations implicate a non-expressive constitutional right--the right to bear arms, equality, and abortion. States are actively, sometimes even aggressively, using their licensing authority to limit and structure conversations between professionals and their clients regarding constitutional rights. The author contends that government regulation of "professional rights speech" should be subjected to heightened First …

Hobby Lobby, Corporate Law, And The Theory Of The Firm: Why For-Profit Corporations Are Rfra Persons, Alan J. Meese, Nathan B. Oman

Nathan B. Oman

No abstract provided.

Hobby Lobby, Corporate Law, And Rfra, Alan J. Meese

Alan J. Meese

No abstract provided.

Hobby Lobby, Corporate Law, And The Theory Of The Firm: Why For-Profit Corporations Are Rfra Persons, Alan J. Meese, Nathan B. Oman

Alan J. Meese

No abstract provided.

Hobby Lobby And Corporate Social Responsibility: A View From The Right, Alan J. Meese

Alan J. Meese

No abstract provided.

When Delegation Begets Domination: Due Process Of Administrative Lawmaking, Evan J. Criddle

Evan J. Criddle

No abstract provided.

The Horne Dilemma: Protecting Property's Richness And Frontiers, Lynda L. Butler

Lynda L. Butler

In a 2015 decision, the Supreme Court concluded that real and personal property should not be treated differently under the Takings Clause and that a government condition requiring raisin growers, in certain years, to reserve a percentage of their crop for the government to manage in noncompetitive venues was a per se physical taking. The decision to treat both real and personal property as equally worthy of protection under the Takings Clause has merit given the weak historical evidence suggesting stronger protection for land and the importance of personal property to income generation and capital development in a modern society. …