Law Commons^™

The Federal Question Jurisdiction Under Article Iii: “First In The Minds Of The Framers,” But Today, Perhaps, Falling Short Of The Framers’ Expectations, Arthur D. Hellman

Articles

As Chief Justice Marshall explained, “the primary motive” for creating a “judicial department” for the new national government was “the desire of having a [national] tribunal for the decision of all national questions.” Thus, although Article III of the Constitution lists nine kinds of “Cases” and “Controversies” to which the “judicial Power” of the United States “shall extend,” “the objects which stood first in the minds of the framers” were the cases “arising under” the Constitution, laws, and treaties of the United States. Today we refer to this as the federal question jurisdiction.

Of all federal question cases, the Framers …

Methodological Gerrymandering, David Simson

Articles & Chapters

The U.S. Supreme Court has come to decide many of the most consequential and contentious aspects of social policy via its interpretations of the U.S. Constitution. Institutional features of the Court create significant pressure on the Justices to justify their decisions as applications of “law” rather than the practice of “politics.” Their perceived failure to do so calls forth criticism sounding in a variety of registers—ranging from allegations of a lack of neutrality, lack of impartiality, or lack of “principle,” to allegations of opportunism, disingenuousness, and hypocrisy. Analyzing the Justices’ choices in relation to interpretational “methodology”—choosing one lens through which …

Human Rights, Constitutional Rights, And Judicial Review: Comparing And Assessing Michael Perry's Early And Contemporary Arguments, Daniel O. Conkle

Articles by Maurer Faculty

In this Essay, I explore, compare, and evaluate two theoretical models of judicial review in individual rights cases, each proposed by Professor Michael J. Perry, albeit in books separated by three and a half decades. In his 1982 book, The Constitution, the Courts, and Human Rights: An Inquiry into the Legitimacy of Constitutional Policymaking by the Judiciary, Early Perry embraced an aggressive form of judicial activism, urging the Supreme Court to test political judgments through an open-ended search for political-moral truth. Contemporary Perry, by contrast, takes a very different approach. In his 2017 book, A Global Political Morality: Human Rights, …

Anti-Modalities, David E. Pozen, Adam Samaha

Faculty Scholarship

Constitutional argument runs on the rails of “modalities.” These are the accepted categories of reasoning used to make claims about the content of supreme law. Some of the modalities, such as ethical and prudential arguments, seem strikingly open ended at first sight. Their contours come into clearer view, however, when we attend to the kinds of claims that are not made by constitutional interpreters – the analytical and rhetorical moves that are familiar in debates over public policy and political morality but are considered out of bounds in debates over constitutional meaning. In this Article, we seek to identify the …

Rationing The Constitution Vs. Negotiating It: Coan, Mud, And Crystals In The Context Of Dual Sovereignty, Erin Ryan

Scholarly Publications

In RATIONING THE CONSTITUTION: HOW JUDICIAL CAPACITY SHAPES SUPREME DECISION-MAKING, Professor Andrew Coan makes the provocative argument that judicial capacity is the most determinative factor in the Supreme Court’s constitutional interpretation, especially regarding such critical realms as equal protection, takings, and the separation of powers. He contends that the Court’s legitimate anxiety over managing workflow to the federal bench operates more powerfully to shape its responses to questions raised in these areas of law than any alternative theory of constitutional interpretation, including doctrinal models popular most among legal academics and strategic models more popular among political scientists. Some readers will …

The Cost Of The Text, Richard A. Primus

Articles

Christopher Serkin and Nelson Tebbe's Is the Constitution Special?explores many facets of constitutional interpretation. I will focus here on their observation that constitutional interpretation is "less textual" than statutory interpretation. I place the expression "less textual" in quotation marks because "textual" could mean many things, such that it would often be problematic to characterize one interpretive exercise as more or less textual than another. In Serkin and Tebbe's view, as I understand it, mainstream constitutional interpretation is "less textual " than statutory decisionmaking in that it is less constrained by the words of particular enacted clauses. As a convenient …

The Constitutional Constant, Richard A. Primus

Articles

According to a conventional view of the Constitution as a precommitment strategy, constitutional rules must remain fixed over time in order for the Constitution to do its work. In practice, however, constitutional rules regularly change over time, even without formal amendment. What is actually constant over time in the American constitutional system is not the content of constitutional law: it is the correspondence between the content of constitutional law and the American people’s (or at least the decision-making class’s) most powerful intuitions about issues of structure and ethos in American government. At any given time, constitutional law reflects those intuitions. …

The Return Of The Unprovided-For Case, Michael S. Green

Faculty Publications

No abstract provided.

Reading Deboer And Obergefell Through The "Moral Readings Versus Originalisms" Debate: From Constitutional "Empty Cupboards" To Evolving Understandings, Linda C. Mcclain

Faculty Scholarship

This article assesses the debate over “moral reading” and “originalist” approaches to constitutional interpretation by evaluating the momentous constitutional controversy in the United States over access by same-sex couples to civil marriage. Justice Kennedy’s landmark opinion in Obergefell v. Hodges (2015), which held that such couples have a fundamental right to marry, employed a “moral reading” in emphasizing dual forms of evolving understanding: of constitutional guarantees of equality and the “promise of liberty” and of the institution of marriage. By contrast to the dissenters, the majority rejected a static, narrow reading of the fundamental right to marry – and marriage …

The Declaration Of Independence And Constitutional Interpretation, Alexander Tsesis

Faculty Publications & Other Works

This Article argues that the Reconstruction Amendments incorporated the human dignity values of the Declaration of Independence. The original Constitution contained clauses, which protected the institution of slavery, that were irreconcilable with the normative commitments the nation had undertaken at independence. The Thirteenth, Fourteenth, and Fifteenth Amendments set the country aright by formally incorporating the Declaration of Independence's principles for representative governance into the Constitution.

The Declaration of Independence provides valuable insights into matters of human dignity, privacy, and self-government. Its statements about human rights, equality, and popular sovereignty establish a foundational rule of interpretation. While the Supreme Court has …

Keeping Pace: The U.S. Supreme Court And Evolving Technology, Brian Thomas

Politics Summer Fellows

Contemporary mainstream discussions of the Supreme Court are often qualified with the warning that the nine justices are out of touch with everyday American life, especially when it comes to the newest and most popular technologies. For instance, during oral argument for City of Ontario v. Quon, a 2010 case that dealt with sexting on government-issued devices, Chief Justice John Roberts famously asked what the difference was “between email and a pager,” and Justice Antonin Scalia wondered if the “spicy little conversations” held via text message could be printed and distributed. While these comments have garnered a great deal of …

Ohio V. Clark: Testimonial Statements Under The Confrontation Clause, Mesha Sloss

Duke Journal of Constitutional Law & Public Policy Sidebar

In Crawford v. Washington, the Supreme Court declared that an accused right under the Constitution to confront the witnesses against him applied only to “testimonial statements.” That decision, however, did not attempt to fully define the scope of testimonial statements. This commentary analyzes Ohio v. Clark, a case which will decide the question of whether statements made by a child to a person with a duty to report allegations of child abuse are testimonial statements. In this case a young child was questioned at school by a teaching assistant about his injuries. This statement was then offered in …

Keeping Civil Rights Debates Civil: Removing Opportunities For Prejudice, Steven Saracco

Duke Journal of Constitutional Law & Public Policy Sidebar

Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of religion in employment decisions made by private employers. This commentary analyzes Equal Employment Opportunity Commission v. Abercrombie & Fitch, a case before the Supreme Court on the issue of whether a job applicant bears the burden of expressly notifying an employer of a conflict between the applicant’s religious beliefs and the employer’s policies before the employer must offer a reasonable accommodation. This case deals with a Muslim woman who was denied employment at a clothing store because her headdress was deemed to be a …

Zivotofsky V. Kerry: Of Passports, Politics, And Foreign Policy Powers, Cara J. Grand

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary profiles the upcoming Supreme Court decision in Zivotofsky v. Kerry, which will decide, for the first time in United States history, the dividing line between legislative and executive authority to recognize foreign nations. Though it emanates from a seemingly-benign passport disagreement about a place-of-birth designation, this case will address an unprecedented and extremely controversial issue about separation of powers that has somehow evaded a Supreme Court decision. The Author profiles the case history and applicable legal precedent and analyzes the arguments for both sides before recommending that the Court should not find the President's power in this …

Bond V. United States. Deciphering Missouri V. Holland And The Scope Of Congress's Powers When Implementing A Non-Self-Executing Treaty, Stephanie Peral

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, Bond v. United States. What started as an act of revenge by a jealous wife will require the Supreme Court to examine a ninety-year old precedent concerning the extent of Congress's powers when acting pursuant to a treaty and whether a valid treaty allows Congress to act without being limited by the Article I enumerated powers.

A Bridge Too Far: The Limits Of The Political Process Doctrine In Schuette V. Coalition To Defend Affirmative Action, Christopher E. D'Alessio

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, Schuette v. Coalition to Defend Affirmative Action, in which the Court will consider whether Michigan violated the Equal Protection Clause of the Fourteenth Amendment by amending its constitution to prohibit race-based preferential treatment in public-university admissions decisions.

Kaley V. United States: The Right To Counsel Of Choice Caught In The Wide Net Of Asset Forfeiture, Adam J. Fine

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, Kaley v. United States, in which the Court may decide whether a defendant who needs potentially forfeitable assets to retain counsel of choice is entitled, under the Due Process Clause, to a hearing to challenge the grand jury's finding of probable cause.

Juries And The Criminal Constitution, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

Judges are regularly deciding criminal constitutional issues based on changing societal values. For example, they are determining whether police officer conduct has violated society’s "reasonable expectations of privacy" under the Fourth Amendment and whether a criminal punishment fails to comport with the "evolving standards of decency that mark the progress of a maturing society" under the Eighth Amendment. Yet judges are not trained to assess societal values, nor do they, in assessing them, ordinarily consult data to determine what those values are. Instead, judges turn inward, to their own intuitions, morals, and values, to determine these matters. But judges’ internal …

The Illusory Eighth Amendment, John F. Stinneford

UF Law Faculty Publications

Although there is no obvious doctrinal connection between the Supreme Court’s Miranda jurisprudence and its Eighth Amendment excessive punishments jurisprudence, the two are deeply connected at the level of methodology. In both areas, the Supreme Court has been criticized for creating “prophylactic” rules that invalidate government actions because they create a mere risk of constitutional violation. In reality, however, both sets of rules deny constitutional protection to a far greater number of individuals with plausible claims of unconstitutional treatment than they protect.

This dysfunctional combination of over- and underprotection arises from the Supreme Court’s use of implementation rules as a …

The Voting Rights Act's Fight To Stay Rational: Shelby County V. Holder, Sudeep Paul

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, Shelby County v. Holder, in which the Court may decide whether Congress's 2006 reauthorization of Section 5 and Section 4(b) of the Voting Rights Act was constitutional.

Maryland V. King: The Fourth Amendment Spirals Down The Double Helix, Sitara V. Witanachchi

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, Maryland v. King, in which the Court may decide whether requiring an arrestee to submit to a buccal swab for identification purposes violates the arrestee's privacy interests under the Fourth Amendment.

Determining Rights To Resell: Kirtsaeng V. John Wiley & Sons, Sandra Yoo

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, Kirtsaeng v. John Wiley & Sons, in which the Court will decide whether the "first sale" doctrine applies to foreign-made copies. Broadly, the case will determine the ability of manufacturers to control the distribution of foreign-made copies once they have been sold and asks the Court to resolve a circuit split on the correct interpretation of the relevant provisions of the Copyright Act.

The Prying Nose: Florida V. Jardines And Warrantless Dog-Sniff Tests On Private Property, Ali Mirsaidi

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, Florida v. Jardines, in which the Court will decide whether a dog-sniff test at the front door of a home constitutes a Fourth Amendment search. The case asks the Court to resolve its prior decisions holding that dog-sniff tests are minimally intrusive when conducted in public with its decisions affording higher protections for searches of private residences.

Clapper V. Amnesty International: Who Has Standing To Challenge Government Surveillance?, Elisa Sielski

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, Clapper v. Amnesty International, in which the Court will examine whether plaintiffs have standing to challenge possible government surveillance under the Foreign Intelligence Surveillance Act. In so doing, the Court will have to revisit the standards for standing in surveillance cases in light of Laird v. Tatum and a circuit split stemming from that case.

Take The Money And Run: Detainment Incident To A Search Warrant In Bailey V. United States, Alexander Hall

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, Bailey v. United States, in which the Court will examine the scope of permissible non-arrest seizures in the context of a detainment incident to a search warrant. The case offers the Court an opportunity to clarify its holding in Michigan v. Summers--that occupants of premises being searched pursuant to a valid warrant may be detained during the search--by determining whether such a detainment is permissible when the occupants have left the premises.

Affirmative Action On Life Support: Fisher V. University Of Texas At Austin And The End Of Not-So-Strict Scrutiny, Jonathan W. Rash

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

Constitutional Heterarchy: The Centrality Of Conflict In The European Union And The United States, Daniel Halberstam

Book Chapters

In the debates about whether to take constitutionalism beyond the state, the European Union invariably looms large. One element, in particular, that invites scholars to grapple with the analogy between the European Union and global governance is the idea of legal pluralism. Just as the European legal order is based on competing claims of ultimate legal authority among the European Union and its member states, so, too, the global legal order, to the extent that we can speak of one, lacks a singular, uncontested hierarchy among its various parts. To be sure, some have argued that the UN Charter provides …

Warrantless Gps In United States V. Jones: Is 2011 The New 1984?, Edward Boehme

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

Entering Liberty's Refuge (Some Assembly Required) Panel Discussion On Engaging Liberty's Refuge: Introduction, Gregory P. Magarian

Scholarship@WashULaw

This brief discussion of a book I greatly admire, by an author I am fortunate to know as a colleague and a friend, cannot hope to capture all of the book’s important and interesting contributions. I will simply describe three of the book’s primary facets. Liberty’s Refuge is, first, a work of intellectual history: Inazu seeks to recover from history’s tall grass a legally respected Anglo-American tradition of assembly. The book is also a work of constitutional interpretation and legal analysis: Inazu aims to revitalize the right of assembly for our time, critiquing the legal decisions that he sees as …

Golan V. Holder: Congressional Power Under The Copyright Clause And The First Amendment, Claire Fong

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.