Law Commons^™

Obeisance To The Separation Of Powers And Protection Of Individuals' Rights And Liberties: The Honorable John C. Eldridge's Approach To Constitutional Analysis In The Court Of Appeals Of Maryland, 1974-2003, Lynne A. Battaglia

Maryland Law Review

No abstract provided.

Supreme Court Section 1983 Decisions: (October 2001 Term), Martin A. Schwartz

Scholarly Works

No abstract provided.

Is Including "Under God" In The Pledge Of Allegiance Lawful?: An Impeccably Correct Ruling, Peter Brandon Bayer

Scholarly Works

On June 26, 2002, in Newdow v. U.S. Congress, a divided panel of the United States Court of Appeals for the Ninth Circuit held that the 1954 Congressional amendment adding the words “under God” to the Pledge of Allegiance violated the First Amendment’s proscription that, “Congress shall make not law respecting an establishment of religion.” Because the First Amendment’s Establishment Clause applies to the States via the due process clause of the Fourteenth Amendment, the Ninth Circuit likewise found unlawful a California school district’s policy encouraging public school students to utter the words “under God” as part of teacher-led …

Puzzling Observations In Chinese Law: When Is A Riddle Just A Mistake?, Donald C. Clarke

GW Law Faculty Publications & Other Works

Understanding the Chinese legal system is not simple because it is (probably) very different from a Western one. The understanding of the Chinese legal system that results from any study will depend crucially on the selection of a paradigm with which to define what counts as an observation and against which to measure and assess the observations, either descriptively or normatively. This is not to say that the selection of a paradigm will make the difference between understanding and not understanding. It will, however, make a difference between understanding in one way and understanding in another way. Whether one of …

Privacy Lost: Comparing The Attenuation Of Texas's Article 1, Section 9 And The Fourth Amendment., Kimberly S. Keller

St. Mary's Law Journal

The Fourth Amendment to the United States Constitution requires that all searches and seizures be reasonable. Article I, Section 9 of the Texas Constitution mirrors its federal counterpart, requiring reasonableness in regard to intrusive governmental action. In examining these texts, both the federal and state provisions are comprised of two independent clauses: (1) the Reasonableness Clause, which prohibits unreasonable searches and seizures; and (2) the warrant clause, which provides that warrants may issue only upon a showing of probable cause. Both the federal and Texas constitutions include explicit language regulating the government’s right to intrude on a person’s privacy. This …

Adjudication, Antisubordination, And The Jazz Connection, Christopher A. Bracey

GW Law Faculty Publications & Other Works

We live in the midst of a pervasive and sustained democratic crisis. Our society expresses a deep commitment to core notions of freedom, justice, and equality for all citizens. Yet, it is equally clear that our democracy tolerates a great deal of social and economic inequality. Membership in a socially disfavored group can (and often does) profoundly distort one's life chances and opportunities. Our constitutional democracy acknowledges this tension, providing for both majority rule and the protection of minority rights and interests. Although we seek to safeguard minority rights and interest through express legal prohibitions on the subordination of socially …

Constitutional Existence Conditions And Judicial Review, Matthew D. Adler, Michael C. Dorf

Faculty Scholarship

Although critics of judicial review sometimes call for making the entire Constitution nonjusticiable, many familiar norms of constitutional law state what we call "existence conditions" that are necessarily enforced by judicial actors charged with the responsibility of applying, and thus as a preliminary step, identifying, propositions of sub-constitutional law such as statutes. Article I, Section 7, which sets forth the procedures by which a bill becomes a law, is an example: a putative law that did not go through the Article I, Section 7 process and does not satisfy an alternative test for legal validity (such as the treaty-making provision …

Thinking Race, Making Nation (Reviewing Glenn C. Loury, The Anatomy Of Racial Inequality), Christopher A. Bracey

GW Law Faculty Publications & Other Works

We live in a race-conscious culture. As Americans, we are a nation of people who self-consciously chose to adopt a vision of society that embraced lofty ideals of individual freedom and democracy for all along with powerful mechanisms for devastating racial oppression. Our history is replete with instances of differential treatment on account of race - slavery being only the most egregious example - that achieved the desired effect of generating remarkable disparities in socioeconomic well-being among individuals and between different racial groups. Such disparities are not simply historical artifacts. They are facts of the contemporary American racial landscape as …

The New Federalism, The Spending Power, And Federal Criminal Law, Richard W. Garnett

Journal Articles

It is difficult in constitutional-law circles to avoid the observation that we are living through a revival of federalism. Certainly, the Rehnquist Court has brought back to the public-law table the notion that the Constitution is a charter for a government of limited and enumerated powers, one that is constrained both by that charter's text and by the structure of the government it creates. This allegedly revolutionary Court seems little inclined, however, to revise or revisit its Spending Power doctrine, and it remains settled law that Congress may disburse funds in pursuit of ends not authorized explicitly in Article I …

The Dormant Commerce Clause And The Hormones Problem, Donald H. Regan

Book Chapters

It is obvious that no anti-discrimination regime can stop at forbidding explicit discrimination of the relevant sort. If only explicit discrimination is forbidden, lawmakers who want to discriminate can hide their discriminatory intentions behind facially neutral classifications that are nonetheless chosen because they differentially burden the protected class. So, we must be prepared to invalidate some facially neutral laws that have "discriminatory effect" or, as American lawyers often call it, "disparate impact." On the other hand, we cannot possibly invalidate all laws which have a disparate impact on a protected class; many perfectly reasonable laws adopted for completely innocent purposes …

Does Federalism Constrain The Treaty Power?, Edward T. Swaine

GW Law Faculty Publications & Other Works

The Supreme Court's revival of federalism casts doubt on the previously unimpeachable power of the national government to bind its states by treaty, suggesting potential subject-matter, anti-commandeering, and sovereign immunity limits that could impair U.S. obligations under vital trade and human rights treaties.

Existing scholarship treats these principles separately and considers them in originalist or other terms, without definitive result. This Article takes a different approach. By assessing all of the doctrines with equal care, but not at daunting length, it permits insight into the common issues involved in determining whether they should be extended to the treaty power. It …

The Magic Of Vouchers Is No Sleight Of Hand: A Reply To Steven K. Green, John Eastman

John C. Eastman

In a provacative 2002 article, The Illusory Aspect of 'Private Choice' for Constitutional Analysis,, Professor Steven Green challenged both the constitutionality and the policy benefits of school vouhcers. The Supreme Court put to rest the constitutional objection in Zelman v. Simmons-Harris shortly after the article was published, but I argue here that the issue should not even have been close. As originally understood, the Establishment Clause was a federalism provision, barring the national government from maked a national church, but also barring the national government from intervening with existing state support of religion. I then take issue with Steven Green's …

Resisting The Expansion Of Bankruptcy Court Power Under Section 105 Of The Bankruptcy Code: The All Writs Act And An Admonition From Chief Justice Marshall, Daniel Bogart

Daniel B. Bogart

This article is divided into three main parts. In the first part, the article criticizes the expansive use of section 105 of the Bankruptcy Code by bankruptcy courts, and argues that this is an inappropriate extension of bankruptcy court power. It begins with a history of section 105 and argues that the drafter intended section 105 to be of limited scope. The drafter assumed that bankruptcy courts would rely on the All Writs Act, upon which the language of section 105 is based. This part then examines a number of typical scenarios in which courts have over reached in application …

Altered States: Review Of John T. Noonan, Jr., 'Narrowing The Nation's Power: The Supreme Court Sides With The States', John Eastman

John C. Eastman

Conversative Ninth Circuit Judge John Noonan's book, 'Narrowing the Nation's Power: The Supreme Court Sides with the States', lambasts the Supreme Court's federalism decisions, a hallmark of the Rehnquist Court's revival of the limits on national power originally envisioned by those who drafted and ratified the Constitution. This review takes Judge Noonan to task for misconstruing the original meaning of the Constitution's Commerce Clause, for example, but agrees with his assessment that the Court's 11th Amendment jurisprudence is a doctrinal mess.

Re-Evaluating The Privileges Or Immunities Clause, John C. Eastman

John C. Eastman

In its 1999 case, Saenz v. Roe, the Supreme Court re-invigorated a long-dead clause of the Constitution, the Privileges or Immunities Clause of the 14th Amendment. Oddly, though, the opinion was written by Justice Stevens, one of the staunchest devotees of a living Constitution rather than originalism. As odd: Justice Thomas, the most consistent originalist on the Court, was in dissent. In his view, any reinvigoration of the Privileges or Immunities Clause should displace, rather than augment, the untethered jurisprudence that expansively interpreted other clauses of the 14th Amendment to cover the neutered Privileges or Immunities Clause, and it should …