Law Commons^™

Choosing Federal Judges In The Second Clinton Administration, Carl Tobias

UC Law Constitutional Quarterly

One of the critical responsibilities which the Constitution entrusts to the President of the United States is the appointment of federal judges. The Chief Executive nominates, and with the advice and consent of the Senate, appoints these officials who enjoy life tenure and must resolve disputes which implicate the basic freedoms of America's inhabitants. President Clinton's careful discharge of this crucial duty may well have yielded the foremost success of his first term in office.

When Governor Clinton was campaigning for the presidency in 1992, he promised to name as judges women and men who would be very intelligent, possess …

Foreword, Interpretive Methodologies: Perspectives On Constitutional Theory, Evan Tsen Lee

Faculty Scholarship

No abstract provided.

Everything You Always Wanted To Know About How Amendments Are Made, But Were Afraid To Ask, Brendon Troy Ishikawa

UC Law Constitutional Quarterly

The single sentence in Article V of the United States Constitution governing the amending process fails to address three important questions: (1) May a state rescind its earlier ratification of a still-pending amendment?, (2) Does an implicit ratification time limit exist? and (3) Who should declare an amendment effectively ratified? Various federal government branches and state legislatures have encountered these questions singly in the context of questionable ratifications of particular amendments. Unsurprisingly, the answers conflict.

This Article argues that these issues must be considered together and resolved under principles of federalism, separation of powers, and popular sovereignty. Ultimately, the Constitution's …

Originalism And The Importance Of Constitutional Aspirations, Richard B. Saphire

UC Law Constitutional Quarterly

Originalism and nonoriginalism represent competing approaches to constitutional interpretation. Originalism insists that the understandings or intentions of the Constitution's drafters and ratifiers provide the principal, if not the exclusive, nontextual sources of constitutional meaning, while nonoriginalism insists that meaning can also be derived legitimately from more contemporary sources of political and moral values. In his recent book, The Constitution in the Courts: Law or Politics?, Professor Michael Perry abandons nonoriginalism in favor of a theory of originalism which he develops and defends.

This Article examines and evaluates Perry's defense of originalism. The author argues that Perry's version of originalism is …

The Second Time As Tragedy: The Assisted Suicide Cases And The Heritage Of Roe V. Wade, Seth F. Kreimer

UC Law Constitutional Quarterly

In this Article, Professor Kreimer assesses the assisted suicide cases of last Term as contributions to constitutional jurisprudence. He suggests that the cases mark an end of a generation of discord over the legitimacy of substantive due process and a triumph of the proponents of extratextual fundamental rights, Nonetheless, he argues that Justice Rehnquist's majority opinion cannot sustain its claim that an "established method" of substantive due process analysis rooted in history and tradition explains both the Court's abortion cases and Glucksberg. Likewise, while Justice Souter's call for "arbitrariness review" rooted in the common law can account for the outcome …

Does Decisonal Law Grant Whites Fewer Political Rights Under The Fourteenth Amendment Than It Grants To Racial Minorities: A Response To Vikram D. Amar And Evan H. Caminker, Thomas E. Wood

UC Law Constitutional Quarterly

In November 1996, the California electorate adoited Proposition 209 (Prop. 209), otherwise known as the California Civil Rights Initiative (CCRI), thereby eliminating all state and local programs that grant "preferential treatment' based on race, sex, color, ethnicity, and national origin in the operation of public employment, education, and contracting. Professors Vikramn D. Amar and Evan H. Caminker have argued in this journal that lower courts, at least, must find CCRI unconstitutional under Washington v. Seattle School District No. 1. This Article is a response to their arguments regarding the constitutionality of CCRI.

This Article begins by noting two crucial differences …

Rediscovering The State Constitutional Right To Happiness And Safety, Joseph R. Grodin

UC Law Constitutional Quarterly

More than half of the state constitutions declare the right of persons "to pursue and obtain happiness and safety," or some variation on that language, but lawyers and judges seldom think to invoke those provisions in asserting or considering state constitutional claims. Professor Grodin, formerly a Justice of the California Supreme Court, explores the roots of such language in classical and Enlightenment philosophy. He then examines judicial opinions which have drawn upon the language and considers the way in which it might inform modem constitutional doctrine.

Professor Grodin argues that the history and text of the language, viewed from a …

Supreme Court Voting Behavior: 1996 Term, Richard G. Wilkins, Scott L. Worthington, David Buchanan

UC Law Constitutional Quarterly

This Article, the twelfth in a series, attempts through statistical analysis to determine whether individual Supreme Court Justices and the Court as a whole voted more "conservatively," more "liberally," or about the same in the 1996 Term as compared with past terms. Overall, the 1996 Term reflects consolidation rather than expansion of the current Court's conservatism. Although the marked increase in the Court's rejection of First Amendment claims this Term is atypically conservative, this movement may well be due to cross-cutting ideological issues in the cases decided, not substantive rejection of liberal free speech norms. Moreover, the most politically liberal …

Perspectives On Constitutional Theory--Foreword, Evan Tsen Lee

UC Law Constitutional Quarterly

No abstract provided.

Alternative Visions Of American Constitutionalism: Popular Sovereignty And The Early American Constitutional Debate, Christian G. Fritz

UC Law Constitutional Quarterly

Scholars have argued that the enactment of our Constitution was the epitome of an American constitutional consensus. This Article, however, affirms that a vibrant debate about the Constitution continued long after its passage. By examining neglected original constitutional sources, this Article demonstrates that a dynamic tension existed throughout the nineteenth century about the meaning and implementation of "popular sovereignty," the principle underpinning our constitutional tradition.

Judicial Supremacy And Nonjudicial Interpretation Of The Constitution, Scott E. Gant

UC Law Constitutional Quarterly

When do, and when should, actors other than judges interpret the Constitution? Over time, this question has received attention from many prominent political leaders. In recent years, it has generated a rich yet underexposed academic debate. This Article seeks to draw attention to and further that debate.

This Article has three main parts. The first is a survey of responses in academic literature to the question "who interprets?" The author argues that although judicial supremacy is widely embraced as a model of constitutional interpretation, other accounts raise serious challenges to its descriptive power and normative appeal. The second part of …

Justice Curtis's Dissent In The Dred Scott Case: An Interpretive Study, Stuart A. Streichler

UC Law Constitutional Quarterly

In the Dred Scott case, the United States Supreme Court ruled that no black, whether slave or free, could ever be a citizen of the United States and that Congress had no constitutional authority to prohibit slavery in federal territories. While this historically important case has been the subject of extensive commentary over the years, scholars have refrained from in-depth inquiry into Justice Curtis's dissent.

This Article analyzes Curtis's opinion in that case, with a view to unraveling his approach to constitutional interpretation. Contrary to the limited reading of citizenship attributed to Curtis, this Article argues that his theory of …

Jewish Legal Theory And American Constitutional Theory: Some Comparisons And Contrasts, Samuel J. Levine

UC Law Constitutional Quarterly

In recent years, American legal scholars have relied increasingly on Jewish law. Scholars have employed concepts from Jewish law in the analysis of health law, criminal law, legal ethics, legal interpretation, and constitutional law. Despite this trend, legal scholars continue to debate the value and validity of applying Jewish legal principles to American legal theory. This Article explores some of the ways in which Jewish law may shed light on issues in American constitutional theory. While acknowledging that there are fundamental differences between a religious legal system and a secular one, this Article argues that certain conceptual similarities between American …

Private Financing Of Criminal Prosectuions And The Differing Protections Of Liberty And Equality In The Criminal Justice System, Joseph E. Kennedy

UC Law Constitutional Quarterly

Government prosecutors have begun accepting, and in some cases soliciting, voluntary contributions from the private sector in order to finance certain types of criminal prosecutions. Such private financing introduces a new tension between society's interest in punishing the guilty and society's interest in equal treatment by government. Private financing of criminal prosecution also raises interesting questions as to whether institutions, as opposed to individuals, can be biased by money.

This Article concludes that private financing in any of its likely forms threatens important equality interests. Part I argues that conflict-of-interest rules provide the only protection for important equality interests implicated …

And The Truth Shall Make You Free: Trust As A First Amendment Defense In Tortious Interference With Contract Cases, Robert L. Tucker

UC Law Constitutional Quarterly

This Article traces the development of the tort of tortious interference with contract from its early English antecedents through the first and second Restatements. The Article discusses the case law that has generally established a "privilege" for the communication of truthful information. This "privilege" was recognized by the American Law Institute in § 772(a) of the Restatement (Second) of Torts.

The article then considers whether the recognition of a "privilege" for the communication of truthful information is required under the First Amendment to the United States Constitution. It concludes that, under applicable United States Supreme Court precedents, the communication of …

Tort Reform In The Wake Of United States V. Lopez, Patrick Hoopes

UC Law Constitutional Quarterly

This Note discusses the extent to which federal tort reform measures would be constitutionally valid in light of the Supreme Court's decision in United States v. Lopez, which invalidated a federal statute criminalizing guns in schools. The Lopez Court, recognizing that the federal government was one of enumerated powers, held that the Commerce Clause granted Congress the power to regulate only those activities which had a substantial effect on interstate commerce. Specifically, this Note examines the constitutionality of a current proposal to limit punitive damage awards in nearly all tort actions. The heavy financial burden runaway juries impose on the …

Mixed Questions And The Scope Of Federal Habeas Review: Consideration Of Miranda Claims In Thompson V. Keohane, Rachel Meyers

UC Law Constitutional Quarterly

Federal habeas corpus review has a long historical tradition, at common law and in the United States. Over time, federal habeas review has expanded to its modern dimensions, which permit lower federal courts to overturn decisions of the states' highest courts. When federal courts review claims raised by state prisoners, the mandate to protect individual constitutional rights competes with other fundamental constitutional values: the promotion of federalism, in the form of respect for state court judgments, finality and fairness.

This Comment analyzes a federal habeas claim of a Miranda violation, a claim which has traditionally been deemed a "mixed question" …

Engineering Perfect Offspring: Devaluing Children And Childhood, Wendy Anton Fitzgerald

UC Law Constitutional Quarterly

In this Essay, Professor Fitzgerald observes that the law and practice governing medical treatment decisions for seriously ill and disabled newborn children requires physicians and parents to compare such children with an unstated norm. She discerhs that our jurisprudence informs that unstated norm with an exclusive model of legal personhood, that of the autonomous individual, an independent and self-sufficient adult. Parents and physicians may conclude, then, that a seriously ill or disabled newborn child who cannot eventually become an autonomous adult should not receive life-saving or life-prolonging treatment. Professor Fitzgerald suggests that this treatment paradigm parallels a cultural resurgence of …

Two Precipices, One Chasm: The Economics Of Physician-Assisted Suicide And Euthanasia, Nelson Lund

UC Law Constitutional Quarterly

In Washington v. Glucksberg and Vacco v. Quill, the Supreme Court refused to create a constitutional right to assisted suicide, but apparently left Congress and the states wide discretion to experiment with new legislation. For the moment, most jurisdictions seem inclined to preserve the traditional legal prohibitions against this practice. Deeper forces in our society, however, may soon push us toward accepting assisted suicide, and much harsher forms of hastened dying as well.

This Article presents two distinct but related arguments. Part I argues that legalizing assisted suicide, whether through judicial or legislative action, would be a mistake because the …

The Supreme Court And Terminal Sedation: Rejecting Assisted Suicide, Embracing Euthanasia, David Orentlicher

UC Law Constitutional Quarterly

In its physician-assisted suicide cases, the United States Supreme Court ostensibly affimned the distinction between "passive" and "active!' steps to end a patient's life. The Court reiterated its recognition of a right to refuse life-sustaining treatment but rejected a right to physician-assisted suicide. However, Professor Orentlicher argues that, in responding to concerns about unrelieved suffering in some dying patients, the Court compromised the very distinction it was trying to preserve. The Court indicated that suffering patients can turn to "terminal sedation," a practice which often is effectively a "slow euthanasia." The Court not only blurred the distinction between active and …

The Hunter Doctrine And Proposition 209: A Reply To Thomas Wood, Vikram David Amar, Evan H. Caminker

UC Law Constitutional Quarterly

In this short reply to the article by Thomas Wood, Professors Amar and Caminker argue that Mr. Wood has seriously misread and misunderstood the Supreme Court cases most relevant to Proposition 209's constitutionality. Importantly, Mr. Wood has failed to account for specific and straightforward language in the cases that directly contradicts his reading. Moreover, Mr. Wood fails to interpret the language of each opinion in the context of the entire case - and in the context of equal protection law generally - as careful constitutional analysis requires. For these reasons, Professors Amar and Caminker continue to believe that if lower …

Unauthorized Embryo Transfer At The University Of California, Irvine Center For Reproductive Health, Supriya Kakkar

UC Law Constitutional Quarterly

Two couples, wanting desperately to conceive, go for help to the same fertility excruciating procedure. Couple A fights the odds and walks away with their miracle baby. Couple B is not so lucky. They walk away empty handed. Years later, a horrifying truth is revealed. Without the consent or knowledge of either couple, doctors transferred Couple B's embryos to Couple A. Couple A finds out that their miracle baby is genetically the offspring of Couple B. Now, Couple B is suing for custody. Who wins?

Doctors at the University of California, Irvine fertility clinic transferred embryos without the approval or …

The Constitionality Of The Line Item Veto Act Of 1996: Three Potential Sources For Presidential Line Item Veto Power, Catherine M. Lee

UC Law Constitutional Quarterly

For over a century, Presidents, regardless of their political affiliations, have sought the authority to exercise a line item veto on legislation passed by Congress. Such power was desired because it was believed that the line item veto would increase the President's leverage in negotiations with Congress and help them root out special interest provisions buried in omnibus bills. Despite Presidents' desire to attain a line item veto, Congress did not grant such authority because its constitutionality was at issue. Constitutional scholars asserted that the line item veto would violate the separation of powers doctrine because the President would be …

Quetzalcoatl, Crosses And The New Constitutional Value Of Multiculturalism, Lori A. Adasiewicz

UC Law Constitutional Quarterly

This Note examines two recent conflicting Ninth Circuit decisions concerning religious displays on publicly-owned land and advocates for the uniform application of a clear standard to this recurring question. In Carpenter v. City and County of San Francisco, the Ninth Circuit condemned the city's ownership of the Mount Davidson cross, applying Article I, section 4 of the California Constitution. In Alvarado v. City of San Jose, it used the more lenient federal constitutional standard to approve the city's erection and maintenance of a statute of Quetzalcoatl, an Aztec or pagan deity. The different approaches in these two functionally similar cases …