Law Commons^™

The Unexceptionalism Of Evolving Standards, Corinna Barrett Lain

Law Faculty Publications

Conventional wisdom is that outside the Eighth Amendment, the Supreme Court does not engage in the sort of explicitly majoritarian state nose-counting for which the "evolving standards of decency" doctrine is famous. Yet this impression is simply inaccurate. Across a stunning variety of civil liberties contexts, the Court routinely-and explicitly--determines constitutional protection based on whether a majority of states agree with it. This Article examines the Supreme Court's reliance on the majority position of the states to identify and apply constitutional norms, and then turns to the qualifications, explanations, and implications of state polling as a larger doctrinal phenomenon. While …

Who's In Charge Of U.S. Indian Policy?: Congress And The Supreme Court At Loggerheads Over American Indian Religious Freedom, David E. Wilkins

Jepson School of Leadership Studies articles, book chapters and other publications

The federal government's three branches—executive, legislative, judicial, and that unwieldy mass known simply as "the bureaucracy" have, during the last half-decade—1987-1991—produced a dizzying crop of laws, policies, proclamations, regulations, and court decisions which have served simultaneously to 1) reaffirm tribal sovereignty; 2) permit and encourage greater state interference within Indian Country; 3) enhance federal legislative authority over tribes; and 4) deny constitutional free-exercise protections both to individual Indians and to tribes.

On the legislative side, Congress has established the experimental Tribal Self-Governance Demonstration Project which is a major step towards restoring the tribal right of self-determination, and is discussing the …