Law Commons^™

Exploring The Affective Constitution, Kathryn Abrams

Case Western Reserve Law Review

No abstract provided.

The Constitutional Legitimacy Of Freestanding Federalism, Gillian E. Metzger

Faculty Scholarship

In Federalism and the Generality Problem in Constitutional Interpretation, Professor John Manning takes aim at the Rehnquist Court's practice of invoking freestanding, textually unspecified principles of federalism as a basis for limiting congressional power. Manning identifies this practice at work in a number of decisions he terms "the 'new federalism' cases" – in particular, the clear statement requirement of Gregory v. Ashcroft; the anticommandeering rule of New York v. United States and Printz v. United States; and the protection of state sovereign immunity in state court of Alden v. Maine. Despite their diverse subject matter, Manning …

Living Originalism, Peter J. Smith, Thomas Colby

GW Law Faculty Publications & Other Works

Originalists routinely argue that originalism is the only coherent and legitimate theory of constitutional interpretation. This Article endeavors to undermine those claims by demonstrating that, despite the suggestion of originalist rhetoric, originalism is not a single, coherent, unified theory of constitutional interpretation, but is rather a disparate collection of distinct constitutional theories that share little more than a misleading reliance on a common label. Originalists generally agree only on certain very broad precepts that serve as the fundamental underlying principles of constitutional interpretation: specifically, that the “writtenness” of the Constitution necessitates a fixed constitutional meaning, and that courts that see …

"Neutral" Principles: Rethinking The Legal History Of Civil Rights, 1934-1964, Anders Walker

All Faculty Scholarship

This paper recovers Columbia Law Professor Herbert Wechsler's constitutional involvement in the long civilrights movement. Derided for criticizing Brown v. Board of Education in 1959, Wechsler first became involved in civil rights litigation in the 1930s, continued to be interested in civil rights issues in the 1940s, and argued one of the most important civil rights cases to come before the Supreme Court in the 1960s. His critique of Brown, this article maintains, derived not from a disinterest in the black struggle but from a larger conviction that racial reform should be process rather than rights-based. By recovering Wechsler's approach, …

Heller High Water? The Future Of Originalism, Jamal Greene

Faculty Scholarship

Has originalism won? It's easy to think so, judging from some of the reaction to the Supreme Court's recent decision in District of Columbia v. Heller. The Heller Court held that the District of Columbia could neither ban possession of handguns nor require that all other firearms be either unloaded and disassembled or guarded by a trigger lock. In finding for the first time in the Court's history that a gun control law violated the Second Amendment, Justice Scalia's opinion for the 5-4 majority appeared to be a sterling exemplar of originalism, the method of constitutional interpretation that he …

Rights, Remedies And Facial Challenges, Maya Manian

Scholarly Articles in Law Reviews & Journals

In a few short years, the Roberts Court has managed to severely restrict the use of facial challenges across substantive areas of constitutional law. Caitlin Borgmann's article, Holding Legislatures Constitutionally Accountable Through Facial Challenges, provides a compelling analysis of the vexing distinction between as applied and facial challenges in constitutional litigation and the impact that limiting facial challenges has on constitutional rights. Borgmann argues that facial challenges are necessary to keep legislatures in check, particularly when legislatures "deliberately or recklessly infringe individual rights" of those who lack political power. Facial challenges are needed in this context not only to protect …

Imagine All The Women: Power, Gender And The Transformative Possibilities Of The South African Constitution, Penelope Andrews

Articles & Chapters

This chapter will explore the South African Constitution, and more particularly, the Bill of Rights, as a vehicle for social and economic transformation. By analyzing the provisions relating to gender equality in South Africa's Constitution, as well as decisions of the Constitutional Court, this chapter will examine whether theconstitutional rights framework in South Africa contains within it the transformative possibilities that will lead to gender equality in all spheres of South African society, and particularly in the economic sphere.

Our Founding Feelings: Emotion, Commitment, And Imagination In Constitutional Culture, Doni Gewirtzman

Articles & Chapters

Traditionally, scholars and judges have treated emotion as a destructive force within constitutional culture. This Article uses recent developments in social psychology, neurobiology, and political psychology to challenge this dominant account and reposition emotion as central to our collective constitutional endeavor. It argues that emotion is critical to commitment and imagination, two features of human behavior that are essential to constitutional legitimacy and innovation. Further, emotions shape our perceptions and preferences about constitutional values through their impact on attitude development and moral decision-making. Finally, our increased understanding of emotion's impact on human behavior has the potential to alter the way …

Judicial Activism And Fourteenth Amendment Privacy Claims: The Allure Of Originalism And The Unappreciated Promise Of Constrained Nonoriginalism, Daniel O. Conkle

Articles by Maurer Faculty

Among other meanings, "judicial activism" can be defined as judicial decisionmaking that frustrates majoritarian self-government and that is unconstrained by law. So understood, judicial activism is presumptively problematic, because it frustrates customary democratic and judicial norms.

In this essay, I address originalist and nonoriginalist responses to the presumptive problem of judicial activism in the context of Fourteenth Amendment privacy claims, including claims relating to abortion, sexual conduct, and same-sex marriage. I argue that originalism is an overrated solution, largely because current understandings of originalism, despite claims to the contrary, do not provide standards of decision that are sufficiently clear to …

The Missing Jurisprudence Of The Legislated Constitution, Robin West

Georgetown Law Faculty Publications and Other Works

Does the fourteenth Amendment and its Equal Protection Clause — the promise that "no state shall deny equal protection of the laws" — have any relevance to the progressive project of reducing economic inequality in various spheres of life or, more modestly, of ameliorating the multiple vulnerabilities of this country's poor people? The short answer, I believe, is, it depends. It will depend, in 2020, just as it depends now, on what we mean by the Constitution we are expounding: the Constitution as read and interpreted by courts — the adjudicated Constitution — or what I propose to call the …

Is Law? Constitutional Crisis And Existential Anxiety, Alice G. Ristroph

Georgetown Law Faculty Publications and Other Works

In the recurring discussions of constitutional crises, one may find three forms of existential anxiety. The first, and most fleeting, is an anxiety about the continued existence of the nation. A second form of anxiety—to my mind, the most interesting form—is an anxiety about the possibility of the rule of law itself. Third, and most solipsistically, references to crisis in constitutional law scholarship could be the product of a kind of professional anxiety in the legal academy. We may be asking ourselves, “Constitutional theory: what is it good for?” and worrying that the answer is, “Absolutely nothing.” And yet, I …

Property And Speech In ‘Summum’, Joseph Blocher

Faculty Scholarship

No abstract provided.

‘The Federalist’ Abroad In The World, Donald L. Horowitz

Faculty Scholarship

This paper traces the influence of The Federalist Papers on five continents. From 1787 to roughly 1850, The Federalist was widely read and highly influential, especially in Europe and Latin America. Federalist justifications for federalism as a solution to the problem of creating a continental republic or to provincial rivalries were widely accepted. So, too, was the presidency, at least in Latin America, and that region adopted judicial review later in the nineteenth century. Presidentialism and judicial review fared less well in Western Europe. Following World War II, judicial review slowly became part of the standard equipment of new and …

Presidential Popular Constitutionalism, Jedediah Purdy

Faculty Scholarship

This Article adds a new dimension to the most important and influential strand of recent constitutional theory: popular or democratic constitutionalism, the investigation into how the U.S. Constitution is interpreted (1) as a set of defining national commitments and practices, not necessarily anchored in the text of the document, and (2) by citizens and elected politicians outside the judiciary. Wide-ranging and groundbreaking scholarship in this area has neglected the role of the President as a popular constitutional interpreter, articulating and revising normative accounts of the nation that interact dynamically with citizens’ constitutional understandings. This Article sets out a “grammar” of …

Unshackling Speech (Book Review), David L. Lange

Faculty Scholarship

Reviewing, Brian C. Anderson and Adam D. Thierer, A Manifesto for Media Freedom (2008))

Guns As Smut: Defending The Home-Bound Second Amendment, Darrell A. H. Miller

Faculty Scholarship

In District of Columbia v. Heller, the Supreme Court held that the Second Amendment guarantees a personal, individual right to keep and bear arms. But the Court left lower courts and legislatures adrift on the fundamental question of scope. While the Court stated in dicta that some regulation may survive constitutional scrutiny, it left the precise contours of the right, and even the method by which to determine those contours, for 'future evaluation."

This Article offers a provocative proposal for tackling the issue of Second Amendment scope, one tucked in many dresser drawers across the nation: Treat the Second Amendment …

Religion In The Workplace: A Report On The Layers Of Relevant Law In The United States, William W. Van Alstyne

Faculty Scholarship

This article reports on the thick layers of law applicable to claims of religious exception to public and private employment workplaces in the United States. It reviews the Supreme Court's First and Fourteenth Amendment salient holdings, distinguishing public sector (government) workplaces, and the extent to which legislative bodies may and may not oblige private employers to "accommodate" religiously-asserted requirements. It also provides exhaustive footnote analyses of all major federal statutes (plus some representative state and local law variations) pertinent to the topic. Its principal conclusions are these: In the currently prevailing view of the U.S. Supreme Court, neither public nor …

Muscular Procedure: Conditional Deference In The Executive Detention Cases, Joseph Landau

Faculty Scholarship

Although much of the prevailing scholarship surrounding the 9/11 decisions tends to downgrade procedural decisions of law as weak and inadequate, procedural rulings have affected the law of national security in remarkable ways. The Supreme Court and lower courts have used procedural devices to require, as a condition of deference, that the coordinate branches respect transsubstantive procedural values like transparency and deliberation. This is “muscular procedure,” the judicial invocation of a procedural rule to ensure the integrity of coordinate branch decision-making processes. Through muscular procedure, courts have accelerated the resolution of large numbers of highly charged cases. Moreover, they have …

House Of Wisdom Or A House Of Cards? Why Teaching Islam In U.S. Foreign Detention Facilities Violates The Establishment Clause, Scott Thompson

Publications

In an attempt to erase Islamic-fundamentalist sentiments held by detainees apprehended in the course of the "war on terror," the United States government began teaching and preaching a more moderate version of the Qur'an and Islam to detainees in Iraq. One such detention program in Iraq was dubbed the House of Wisdom. But the wisdom of such a practice is highly suspect--both because it likely runs afoul of the Establishment Clause of the First Amendment and because it may be doing more harm than good to the American effort to defuse Islamic-extremism and anti-American sentiment. This Article examines the practice …

Ideological Plaintiffs, Administrative Lawmaking, Standing And The Petition Clause, Karl S. Coplan

Elisabeth Haub School of Law Faculty Publications

In the 1992 Lujan v. Defenders of Wildlife decision, Justice Scalia declared that business interests subject to regulation had automatic standing to challenge regulations in court, but that where “the plaintiff is not himself the object of the government action or inaction he challenges, standing is not precluded, but it is ordinarily ‘substantially more difficult’ to establish.” This article explores the impact this differential standard for court access has on ideologically-motivated public interest plaintiffs, and suggest heightened scrutiny of standing rules under the Petition Clause of the First Amendment based on the viewpoint differential effect of current standing doctrine. This …

At A Crossroads In The Charm City: Northern Central, United Railways And Power Politics At The Dawn Of Twentieth Century Baltimore - Northern Central Rr Co. V. United Railways & Electrinc Co. 105 Md. 345, Andrew R. Mccarty, David S. Warner

Legal History Publications

In June 1905, attorneys for the Northern Central Railway Company filed suit in Baltimore Superior Court against the United Railways and Electric Company. The suit charged that United Railways owed Northern Central for a portion of the expenses incurred by Northern to repair two bridges in the City of Baltimore, Maryland. Northern Central’s railroad lines ran under the bridges and United Railways’ streetcar lines ran across them. The amount claimed was relatively small for a company the size of the Northern Central and the possibility of collecting somewhat remote even if the case were decided in its favor. However, the …

Constitutionalizing Class Inequality: Due Process In State Farm, Martha T. Mccluskey

Buffalo Law Review

This essay takes a step toward building a story of economic class in U.S. constitutional law, as part of a special essay issue of the Buffalo Law Review developed from a series of workshops titled ClassCrits: Toward a Critical Analysis of Economic Inequality, sponsored by the Baldy Center for Law and Social Policy at the University at Buffalo. The essay focuses on the 2003 U.S. Supreme Court decision in State Farm Mutual Insurance Co. v. Campbell, one of a series of recent cases using the due process clause of the 14th Amendment to limit punitive damage awards against corporate defendants …

"The Threes": Re-Imagining Supreme Court Decisionmaking, Tracey E. George, Chris Guthrie

Vanderbilt Law Review

Article III is odd. In contrast to Articles 12 and II, which specify in some detail how the legislative and executive branches are to be assembled, Article III says virtually nothing about the institutional design of the Supreme Court.

Consistent with this Constitutional silence, the Court's look, shape, and behavior have adapted to changed circumstances. For example, the Court's membership has changed substantially. Initially, six Justices sat on the Court; in time, the Court grew to ten and shrank to seven. Only in 1869 did it settle at nine. Likewise, the Court's jurisdiction has changed, first expanding, then contracting, and …

The Land That Democratic Theory Forgot, Luis Fuentes-Rohwer

Indiana Law Journal

The island of Puerto Rico is officially designated as an unincorporated United States territory. Acquired by the United States in the aftermath of the Spanish- American war, the status of the island offers innumerable lessons and puzzles for students of the law of democracy and constitutional law. Begin with the fact that citizens ofPuerto Rico-U.S. citizens at birth-cannot vote in federal elections but are subject to the plenary powers of Congress. How do we justify this condition under American constitutional values and basic tenets of democratic theory? Looking to the moment of acquisition, how may we reconcile the acquisition of …

Finding The "Income" In "Income Tax": A Look At Murphy V. Lr.S. And An Attempt To Pick Up Pieces Of Glenshaw Glass, Matthew J. O'Connor

Indiana Law Journal

No abstract provided.

Exploring The Use Of The Word "Citizen" In Writings On The Fourth Amendment, M. Isabel Medina

Indiana Law Journal

Symposium: Latinos and Latinas at the Epicenter of Contemporary Legal Discourses. Indiana University School of Law-Bloomington, March 2007.

Errors, Omissions, And The Tennessee Plan, Brian T. Fitzpatrick

Vanderbilt Law School Faculty Publications

In the Spring 2008 issue of the Tennessee Law Review, I wrote an essay questioning whether Tennessee's merit system for selecting appellate judges - the Tennessee Plan - satisfies the requirements of the Tennessee Constitution. The Tennessee Constitution requires all judges to be elected by the qualified voters of the state, yet, under the Plan, all appellate judges are initially selected by gubernatorial appointment and then retained in uncontested referenda. I argued that both the appointment and retention features of the Plan are unconstitutional, and I recommended that the legislature refuse to reauthorize the Plan when it expires in June …

Under-The-Table Overruling, Christopher J. Peters

All Faculty Scholarship

In this contribution to a Wayne Law Review symposium on the first three years of the Roberts Court, the author normatively assesses the Court's practice of "under-the-table overruling," or "underruling," in high-profile constitutional cases involving abortion, campaign-finance reform, and affirmative action. The Court "underrules" when it renders a decision that undercuts a recent precedent without admitting that it is doing so. The author contends that underruling either is not supported by, or is directly incompatible with, three common rationales for constitutional stare decisis: the noninstrumental rationale, the predictability rationale, and the legitimacy rationale. In particular, while the latter rationale - …

Something To Talk About: Is There A Charter Right To Access Government Information?, Vincent Kazmierski

Dalhousie Law Journal

Can sections 2(b) and 3 of the Canadian Charter of Rights and Freedoms be interpreted to protect a constitutional right of access to government information? The author argues that the constitutional principle of democracy provides a foundation for judicial recognition of such a constitutional right of access even though the inclusion ofan explicit right to access to government information was rejected during the process of drafting the Charter Given that the Supreme Court of Canada's section 2(b) and 3 jurisprudence has been informed by the principle of democracy, the application of the principle may now guide the Court to include …

The Style Of A Skeptic: The Opinions Of Chief Justice Roberts, Laura Krugman Ray

Indiana Law Journal

No abstract provided.