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Against The Tiers Of Constitutional Scrutiny, Joel Alicea, John D. Ohlendorf Jan 2019

Against The Tiers Of Constitutional Scrutiny, Joel Alicea, John D. Ohlendorf

Scholarly Articles and Other Contributions

This year, for the first time in nearly a decade, the Supreme Court will return to the subject of the Second Amendment. New York State Rifle & Pistol Association, Inc. (NYSRPA) v. City of New York concerns a New York City licensing regime that, at the time the Court granted review, prohibited the transportation of any firearm outside city limits. (The City subsequently changed its licensing regime, perhaps in an effort to make the case go away before the Court could rule on the merits. It is unclear, at the time we write, whether that tactic will succeed.) Although most popular ...


Constitutional Anomalies Or As-Applied Challenges? A Defense Of Religious Exemptions, Mark L. Rienzi Jan 2018

Constitutional Anomalies Or As-Applied Challenges? A Defense Of Religious Exemptions, Mark L. Rienzi

Scholarly Articles and Other Contributions

In the wake of Burwell v. Hobby Lobby and now in anticipation of Craig v. Masterpiece Cakeshop, Inc., the notion that religious exemptions are dangerously out of step with norms of Constitutional jurisprudence has taken on a renewed popularity. Critics increasingly claim that religious exemptions, such as those available prior to Employment Division v. Smith and now available under the federal Religious Freedom Restoration Act (RFRA), are a threat to basic fairness, equality, and the rule of law. Under this view, exemptions create an anomalous private right to ignore laws that everyone else must obey, and such a scheme will ...


Independent Agencies In The United States: The Responsibilities Of Public Lawyers, Marshall J. Breger, Gary Edles Jan 2016

Independent Agencies In The United States: The Responsibilities Of Public Lawyers, Marshall J. Breger, Gary Edles

Scholarly Articles and Other Contributions

Independent federal agencies occupy a special constitutional position in the governmental structure. Their stock-in-trade is the expert, apolitical resolution of regulatory issues. They are supposedly “independent” of the political will of the executive branch. Because most are multi-member organizations, they are also perceived as accommodating diverse views and able to prevent extreme outcomes through the compromise inherent in the process of collegial decision-making. But such a view is not universally held. A well known examination of such agencies in the 1930s described them uncharitably as a “headless ‘fourth branch’ of government, a haphazard deposit of irresponsible agencies and uncoordinated powers ...


Two Aspects Of Liberty, John H. Garvey Jan 2016

Two Aspects Of Liberty, John H. Garvey

Scholarly Articles and Other Contributions

Liberty in the constitutional sense is always a right against state interference (a “freedom from”). The First Amendment begins by saying that “Congress shall make no law”; it forbids Congress to license or fine or jail people for speaking, or publishing, or assembling. Liberty is also, always, a right to do something (a “freedom to”): to speak, to assemble, to practice religion, to get married, etc. So “freedom from” and “freedom to” are always parts of the same idea, just as “flying from” and “flying to” are aspects of the same airplane trip. Freedom is always the right to do ...


New Era Or Just One Step In The History Of The Supreme Court Of The United States?, Rett R. Ludwikowski Jan 2016

New Era Or Just One Step In The History Of The Supreme Court Of The United States?, Rett R. Ludwikowski

Scholarly Articles and Other Contributions

The vacancy arising as a result of the death of Antonin Scalia, one of the nine justices of the Supreme Court of the United States, paralyzed the Court’s work for a few months. Even Donald Trump’s victory in the presidential election did not immediately resolve the problem of political balance in the Court.

This article, commenting on the stalemate over the Supreme Court, tries to answer some questions. Is the process of politicization of formally politically independent justices a natural result of mutual attrition of the authorities? Does the situation after Scalia’s death undermine the separation of ...


Substantive Due Process As A Two-Way Street: How The Court Can Reconcile Same-Sex Marriage And Religious Liberty, Mark L. Rienzi Jan 2015

Substantive Due Process As A Two-Way Street: How The Court Can Reconcile Same-Sex Marriage And Religious Liberty, Mark L. Rienzi

Scholarly Articles and Other Contributions

Last month, the potential conflict between same-sex marriage and religious liberty prompted death threats, arson threats, and the temporary closure of a small-town pizzeria in Indiana. The restaurant’s owner had admitted to a reporter that she could not cater a hypothetical same-sex wedding because of her religious beliefs (even though she otherwise serves gay customers in her restaurant). Threatened with violence over her unpopular religious belief, the owner was forced to close the restaurant, uncertain if she could ever reopen.

Leading up to oral argument in the same-sex marriage cases, it was reasonable to wonder whether the Indiana episode ...


Ordre Public And The First Amendment, Marshall J. Breger Jan 2015

Ordre Public And The First Amendment, Marshall J. Breger

Scholarly Articles and Other Contributions

Ordre Public is a civil law concept according to which courts refuse to enforce the judgments of the courts of foreign countries because the judgments violate the enforcing state's core notions of public morals and public order. The concept is most often used in private international law. In some sense, it is a misnomer to talk about ordre public in American law as the terms is little used by American commentators or in American cases. Rather, the term that captures ordre public in the American context is "the public policy exception." While there may be subtle differences, for the ...


The Supreme Digital Divide, Mary Graw Leary Jan 2015

The Supreme Digital Divide, Mary Graw Leary

Scholarly Articles and Other Contributions

Society has long struggled with the meaning of privacy in a modern world. This struggle is not new. With the advent of modern technology and information sharing, however, the challenges have become more complex. Socially, Americans seek to both protect their private lives, and also to utilize technology to connect with the world. Commercially, industries seek to obtain information from individuals, often without their consent, and sell it to the highest bidder. As technology has advanced, the ability of other individuals, institutions, and governments to encroach upon this privacy has strengthened. Nowhere is this tension between individual privacy rights and ...


The Supreme Court’S 2014-2015 Term: The Year The Administrative State Trembled, Joel Alicea Jan 2015

The Supreme Court’S 2014-2015 Term: The Year The Administrative State Trembled, Joel Alicea

Scholarly Articles and Other Contributions

The opinions of the Supreme Court’s most recent term indicate that the court’s conservative justices are rethinking the scope and power of the administrative state.


A Whole Text Reading Of The War Powers Clauses: Why The Constitution’S Text Obviates Esoteric War Powers Debates And Encourages Policy Flexibility And Democratic Accountability, Antonio F. Perez Jan 2014

A Whole Text Reading Of The War Powers Clauses: Why The Constitution’S Text Obviates Esoteric War Powers Debates And Encourages Policy Flexibility And Democratic Accountability, Antonio F. Perez

Scholarly Articles and Other Contributions

This paper is a lightly-footnoted and modestly expanded version of my presentation at the Georgetown Journal of Law & Public Policy Symposium’s panel on Executive War Powers, Syria, and President Obama’s “Red Line”—Did President Obama Have the Power to Use Force in Syria without Congressional Approval? While criticizing the President’s policy decision, this paper argues that the President would have been well within his authority to use force. Relying r on a whole text reading of the relevant constitutional provisions, it argues that the President’s authority to use force is virtually plenary, while Congress’s authority ...


Real Judicial Restraint, Joel Alicea Jan 2013

Real Judicial Restraint, Joel Alicea

Scholarly Articles and Other Contributions

The conservative legal movement has long stood simultaneously for originalism and judicial restraint. But in the past few years, the tension between a commitment to interpreting the Constitution as its authors intended and deferring to the will of legislators and the executive has become painfully clear. Does originalism demand judicial restraint, or is the Constitution undermined by such restraint?


The Limits Of New Originalism, Joel Alicea Jan 2013

The Limits Of New Originalism, Joel Alicea

Scholarly Articles and Other Contributions

We argue that New Originalism, which has emerged as the dominant theory of originalism, has a significant methodological limitation for anyone who takes historical research seriously. That limitation arises where historical sources indicate different possible original meanings, which can occur because of New Originalism's focus on the meaning of the text for a hypothetical, reasonable person at the time of ratification. We describe the first instance of this problem, which occurred in Hylton v. United States (1796). Hylton involved the constitutionality of an excise tax, and we use that case to provide a real example of the impossibility of ...


Unequal Treatment Of Religious Exercises Under Rfra: Explaining The Outliers In The Hhs Mandate Cases, Mark L. Rienzi Jan 2013

Unequal Treatment Of Religious Exercises Under Rfra: Explaining The Outliers In The Hhs Mandate Cases, Mark L. Rienzi

Scholarly Articles and Other Contributions

Ongoing conflict over the contraceptive mandate promulgated by the Department of Health and Human Services ("HHS") has resulted in more than two dozen lawsuits by profit-making businesses and their owners seeking protection under the Religious Freedom Restoration Act ("RFRA"). To date, the businesses and their owners are winning handily, having obtained preliminary relief in seventeen of the cases, and being denied relief in only six. Last month, in fact, a panel of the D.C. Circuit Court of Appeals took the extraordinary step of reconsidering and reversing its own prior ruling and granting a preliminary injunction to a business seeking ...


God And The Profits: Is There Religious Liberty For Money-Makers?, Mark L. Rienzi Jan 2013

God And The Profits: Is There Religious Liberty For Money-Makers?, Mark L. Rienzi

Scholarly Articles and Other Contributions

Is there a religious way to pump gas, sell groceries, or advertise for a craft store? Litigation over the HHS contraceptive mandate has raised the question whether a for-profit business and its owner can engage in religious exercise under federal law. The federal government has argued, and some courts have found, that the activities of a profit-making business are ineligible for religious freedom protection.

This article offers a comprehensive look at the relationship between profit-making and religious liberty, arguing that the act of earning money does not preclude profit-making businesses and their owners from engaging in protected religious exercise.

Many ...


Neutral No More: Secondary Effects Analysis And The Quiet Demise Of The Content-Neutrality Test, Mark L. Rienzi Jan 2013

Neutral No More: Secondary Effects Analysis And The Quiet Demise Of The Content-Neutrality Test, Mark L. Rienzi

Scholarly Articles and Other Contributions

When the Supreme Court introduced the “secondary effects” doctrine to allow for zoning of adult businesses, critics fell into two camps. Some, like Justice Brennan, predicted dire consequences for the First Amendment, particularly if the doctrine were used in political speech cases. Others, like Professor Laurence Tribe, predicted secondary effects analysis would be limited to sexually explicit speech, and would not threaten the First Amendment. The modern consensus is that the doctrine has, in fact, been limited to cases about sex.

Recent cases demonstrate, however, that the impact of the secondary effects doctrine on the First Amendment has been broader ...


You Have The Right To Remain Silent: Does The U.S. Constitution Require Public Affirmation Of Same-Sex Marriage?, Robert A. Destro Jan 2013

You Have The Right To Remain Silent: Does The U.S. Constitution Require Public Affirmation Of Same-Sex Marriage?, Robert A. Destro

Scholarly Articles and Other Contributions

The political and legal campaign for marriage equality rests on the proposition that the Constitution of the United States requires communal recognition of committed, same-sex relationships. The text, structure, and history of the amended Constitution, however, support precisely the opposite conclusion: i.e., that neither the United States nor any state may compel any community, association, or individual to affirm (by word, deed, or policy) the hotly disputed propositions about human sexuality that lie at the core of the debate. Nor can it plausibly be argued that any part of the Constitution requires any person, association, or polity to remain ...


Chief Justice Roberts And The Changing Conservative Legal Movement, Joel Alicea Jan 2012

Chief Justice Roberts And The Changing Conservative Legal Movement, Joel Alicea

Scholarly Articles and Other Contributions

At the sprightly age of 57 and less than seven years into his term as chief justice, John Roberts looks like a man whom time has left behind. The reaction among legal conservatives to the Roberts opinion in National Federation of Independent Businesses v. Sebelius (the healthcare case) has been brutal. Many have accused the chief justice of exchanging the black robes of the jurist for the trappings of the politician. The chief justice is said to have “blinked” and “failed [his] most basic responsibility.” Noted originalist scholar Mike Rappaport strongly implied that Roberts is “both a knave and a ...


Stare Decisis In An Originalist Congress, Joel Alicea Jan 2012

Stare Decisis In An Originalist Congress, Joel Alicea

Scholarly Articles and Other Contributions

The concern here is with the normative status of legislative precedents for an originalist Congress: Should an originalist legislator give any weight to previous legislative constitutional judgments? This Note does not attempt to articulate the specific criteria an originalist legislator (or judge, for that matter) should use in deciding whether to retain a particular precedent. That question is a distinct inquiry for another day. Part I briefly reviews the literature on originalist extrajudicial constitutional interpretation as well as the scholarship on legislative stare decisis. Part II examines five common arguments for adherence to precedent in a judicial setting and analyzes ...


Gingrich, Desegregation, And Judicial Supremacy, Joel Alicea Jan 2012

Gingrich, Desegregation, And Judicial Supremacy, Joel Alicea

Scholarly Articles and Other Contributions

Those who oppose judicial supremacy follow in the footsteps of Abraham Lincoln himself.


The Constitutional Right Not To Kill, Mark L. Rienzi Jan 2012

The Constitutional Right Not To Kill, Mark L. Rienzi

Scholarly Articles and Other Contributions

Federal and state governments participate in and/or permit a variety of different types of killings. These include military operations, capital punishment, assisted suicide, abortion and self-defense or defense of others. In a pluralistic society, it is no surprise that there will be some members of the population who refuse to participate in some or all of these types of killings. The question of how governments should treat such refusals is older than the Republic itself. Since colonial times, the answer to this question has been driven largely by statutory protections, with the Constitution playing a smaller role, particularly since ...


An Originalist Congress?, Joel Alicea Jan 2011

An Originalist Congress?, Joel Alicea

Scholarly Articles and Other Contributions

Among the campaign promises Republicans made to voters this fall was a pledge that every piece of proposed legislation would cite the constitutional provision that authorizes it. Given lawmakers' reliance on the courts to determine the constitutionality of our laws, the new majority's promise could open some fascinating — and useful — debates. Chief among them: Just how should Congress interpret the Constitution?


The Constitutional Right Not To Participate In Abortions: Roe, Casey, And The Fourteenth Amendment Rights Of Healthcare Providers, Mark L. Rienzi Jan 2011

The Constitutional Right Not To Participate In Abortions: Roe, Casey, And The Fourteenth Amendment Rights Of Healthcare Providers, Mark L. Rienzi

Scholarly Articles and Other Contributions

The Fourteenth Amendment rights of various parties in the abortion context – the pregnant woman, the fetus, the fetus’ father, the state – have been discussed at length by commentators and the courts. Surprisingly, the Fourteenth Amendment rights of the healthcare provider asked to provide the abortion have not. Roe and Casey establish a pregnant woman’s Fourteenth Amendment right to decide for herself whether to have an abortion. Do those same precedents also protect her doctor’s right to decide whether to participate in abortion procedures?

The Court’s substantive due process analysis typically looks for rights that are “deeply rooted ...


Regulating Morality Through The Common Law And Exclusionary Zoning, George P. Smith Ii, Gregory P. Bailey Jan 2011

Regulating Morality Through The Common Law And Exclusionary Zoning, George P. Smith Ii, Gregory P. Bailey

Scholarly Articles and Other Contributions

The extent to which a free society seeks to regulate sexual expression is problematic. What was defined as immoral or contra bonos mores in the 20th century, has become less of an issue in today’s liberal society. Freedom of sexual intimacy and expression are, to be sure, 1st Amendment and 14th Amendment rights. But, with every assertion of a fundamental right or liberty must come a concomitant understanding that there is a co-ordinate responsibility to exercise that right reasonably. Determining the reasonableness of any conduct grounded in these two amendments must be fact sensitive and guided by community standards ...


Differentiating The Federal Circuit, Elizabeth I. Winston Jan 2011

Differentiating The Federal Circuit, Elizabeth I. Winston

Scholarly Articles and Other Contributions

In 1982, Congress created the United States Court of Appeals for the Federal Circuit. Often referred to as an experiment, the Federal Circuit has flourished. Born again from the ashes of its predecessors, the aptly nicknamed Phoenix Court continues to grow in significance, stature, and strength. As it grows, however, the court remains rooted in its history and in its unique nature. This Article explores the Federal Circuit’s structure and its impact on the development of Federal Circuit jurisprudence. The Federal Circuit is distinguishable by more than its national jurisdiction – the very essence of the court sets it apart ...


The History And Constitutionality Of Maryland’S Pregnancy Speech Regulations, Mark L. Rienzi Jan 2010

The History And Constitutionality Of Maryland’S Pregnancy Speech Regulations, Mark L. Rienzi

Scholarly Articles and Other Contributions

On December 4, 2009, Baltimore, Maryland enacted the nation's first law regulating the speech of individuals and groups who want to talk to pregnant women about whether to have an abortion. Less than two months later, nearby Montgomery County, Maryland enacted the second. These regulations only apply to speakers who want to talk about one particular subject: pregnancy. As a practical matter, the regulations only apply to speakers who oppose abortion. Counselors who work for organizations willing to provide abortions are entirely exempt. Immediately after these laws passed, abortion providers and their allies across the country began plans to ...


Originalism And The Legislature, Joel Alicea Jan 2010

Originalism And The Legislature, Joel Alicea

Scholarly Articles and Other Contributions

While the extent to which Congress ought to be involved in interpreting the Constitution has been the subject of scholarly debate in recent years, the question of how Congress should interpret the document has been overlooked. This paper examines the justifications underlying several schools of originalist thought to tease out what these schools have to say about congressional constitutional interpretation. When the major originalist theories are scrutinized, the logical conclusion is that Congress ought to be originalist when engaging in constitutional interpretation. The paper thus breaks new ground in pointing out this radical implication of originalist thought, but its novel ...


Smith, Stormans, And The Future Of Free Exercise: Applying The Free Exercise Clause To Targeted Laws Of General Applicability, Mark L. Rienzi Jan 2009

Smith, Stormans, And The Future Of Free Exercise: Applying The Free Exercise Clause To Targeted Laws Of General Applicability, Mark L. Rienzi

Scholarly Articles and Other Contributions

Does the Free Exercise Clause extend to situations where the legislature deliberately targets a religious practice, but does so for neutral reasons and is willing to extend the ban to people who happen to engage in the same practice for non-religious reasons? While one can imagine reasonable arguments on both sides about the constitutionality of the Sunday morning alcohol ban, it seems absurd to say that the Free Exercise Clause is not part of the equation. Yet under the First Amendment analysis presently employed by many courts, that result is entirely likely.


The American Presidency, The 2008 Election, And The Constitution's Natural Born Citizenship Proviso, Sarah Helene Duggin, Mary Beth Collins Jan 2008

The American Presidency, The 2008 Election, And The Constitution's Natural Born Citizenship Proviso, Sarah Helene Duggin, Mary Beth Collins

Scholarly Articles and Other Contributions

The following discussion describes the historical context of the natural born citizenship clause; explores some of the issues the proviso raises in contemporary American society, particularly its impact on Senator McCain and future presidential hopefuls; and offers a brief reflection on why the United States needs to amend Article II to eliminate natural born citizenship as a qualification for the presidency and vice presidency.


God’S Littlest Children And The Right To Live: The Case For A Positivist Pro-Life Overturning Of Roe, Raymond B. Marcin Jan 2008

God’S Littlest Children And The Right To Live: The Case For A Positivist Pro-Life Overturning Of Roe, Raymond B. Marcin

Scholarly Articles and Other Contributions

For those who understand that God's littlest children have the same right to life that all God's children have, the day on which the United States Supreme Court decided Roe v. Wade was a day that echoed the grief and frustration that, more than a century earlier, accompanied the decision in Dred Scott v. Sandford. And the day on which the United States Supreme Court decides to overturn Roe v. Wade and all the other pro-abortion decisions will be a day of heart-felt thanksgiving. From the pro-life perspective, however, it will not be enough, that the Supreme Court ...


Moral Communities Or A Market State: The Supreme Court’S Vision Of The Police Power In The Age Of Globalization, Antonio F. Perez, Robert J. Delahunty Jan 2005

Moral Communities Or A Market State: The Supreme Court’S Vision Of The Police Power In The Age Of Globalization, Antonio F. Perez, Robert J. Delahunty

Scholarly Articles and Other Contributions

In essence, this Article attempts to explain the underlying logic of two intersecting lines of recent Supreme Court decisions. The first line of cases concerns the allocation of constitutional power between the Nation and the States (i.e., cases about "federalism"); the other line concerns claims of individual right against exercises of purported State power (i.e., cases about "individual rights"). The federalism cases deal, respectively, with the powers of the States against Congress in the regulation of domestic matters"' and as against the Executive (and, less often, Congress) in influencing foreign affairs. The individual rights cases deal with equal ...