Constitutional Law Commons^™

A Deer In Headlights: The Supreme Court, Lgbt Rights, And Equal Protection, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

In this essay, I argue that the problems with how courts apply Equal Protection principles to classifications not already recognized as suspect reach beyond the most immediate example of sexual orientation. Three structural weaknesses drive the juridical reluctance to bring coherence to this body of law: two doctrinal and one theoretical. The first doctrinal problem is that the socio-political assumptions that the 1938 Supreme Court relied on in United States v. Carolene Products, Inc. to justify strict scrutiny for “discrete and insular minorities” have lost their validity. In part because of Roe v. Wade-induced PTSD, the courts have …

"Seg Academies," Taxes, And Judge Ginsburg, Stephen B. Cohen

Georgetown Law Faculty Publications and Other Works

This essay recounts the historical, political, and legal context in which Judge Ginsburg’s ruling in the Wright case arose. This context explains the importance of her decision to the battle against segregated education and highlights as well the repeated efforts of powerful political forces, including the Reagan administration and congressional conservatives, to cripple efforts to prohibit racially discriminatory private schools from receiving federal subsidies through the tax system. This essay also aims to highlight Wright’s place in the modern doctrine of educational discrimination.

"Fuck Your Breath": Black Men And Youth, State Violence, And Human Rights In The 21st Century, Jeremy I. Levitt

Journal Publications

This polemical essay was written at the behest of Black men and youth, and it is dedicated to African American women who relentlessly fight to safeguard the rights and well-being of Black men, even when in the process their maltreatment and welfare are grossly overlooked and forgotten. Bree Newsome's courageous and necessary removal of the confederate flag in the South Carolina State House is a prime example of such fearless activism. Joanne Deborah Chesimard aka Assata Shakur's-a former leader of the revolutionary organization known as the Black Liberation Armyascendency to the FBI's Most Wanted Terrorist list is another tragically intoxicating …

Regulating Drones Under The First And Fourth Amendments, Marc Blitz, James Grimsley, Stephen E. Henderson, Joseph Thai

Faculty Articles

The FAA Modernization and Reform Act of 2012 requires the Federal Aviation Administration to integrate unmanned aerial vehicles (UAVs), or drones, into the national airspace system by September of this year. Yet perhaps because of their chilling accuracy in targeted killings abroad, perhaps because of an increasing consciousness of diminishing privacy more generally, and perhaps simply because of a fear of the unknown, divergent UAV-restrictive legislation has been proposed in Congress and enacted in a number of states. Ultimately, given UAV utility and cost effectiveness over a vast range of tasks, widespread commercial use seems certain. So it is imperative …

Substantive Due Process For Noncitizens: Lessons From Obergefell, Anthony O'Rourke

Journal Articles

The state of Texas denies birth certificates to children born in the United States — and thus citizens under the Fourteenth Amendment — if their parents are undocumented immigrants with identification provided by their home countries’ consulates. What does this have to do with same-sex marriage? In a previous article, I demonstrated that the Court’s due process analysis in United States v. Windsor is particularly relevant to the state’s regulation of undocumented immigrants. This short essay builds upon my earlier analysis by examining Obergefell v. Hodge’s applications outside the context of same-sex marriage. Obergefell’s due process holding, I …

Freedom Of The Church And Our Endangered Civil Rights: Exiting The Social Contract, Robin West

Georgetown Law Faculty Publications and Other Works

In this comment I suggest that the “Freedom of the Church” to ignore the dictates of our various Civil Rights Acts, whether in the ministerial context or more broadly, created or at least newly discovered by the Court in Hosanna-Tabor, is a vivid example of a newly emerging and deeply troubling family of rights, which I have called elsewhere “exit rights” and which collectively constitute a new paradigm of both institutional and individual rights in constitutional law quite generally. The Church’s right to the ministerial exception might be understood as one of this new generation of rights, including some …

Obergefell'S Conservatism: Reifying Familial Fronts, Clare Huntington

Fordham Law Review

I am delighted with the result in Obergefell v. Hodges, but I am unhappy with the Court’s reasoning. In lieu of a straightforward, and far more defensible, decision based purely on the Equal Protection Clause, Justice Kennedy’s reliance on the Due Process Clause is deeply problematic.

Race, Dignity, And The Right To Marry, Robin A. Lenhardt

Fordham Law Review

Justice Kennedy’s majority opinion in Obergefell v. Hodges asserts legal marriage’s capacity to afford same-sex couples a measure of “equal dignity” and belonging too long denied. In this Essay, I ask whether there is any reason to believe that marriage could do the same for African Americans. Could broader entrance into marriage, as some conservatives suggest, provide Blacks—gay and straight—a measure of belonging that has been frustratingly elusive, even as the nation prepares to celebrate the one hundred and fiftieth anniversary of the Thirteenth Amendment’s ratification?

Preferential Judicial Activism, Sudha Setty

Faculty Scholarship

The Author examines the Supreme Court’s use of “preferential judicial activism”—whereby justices decide whether to formalistically dismiss cases or instead choose to engage judicial activism based on their policy preferences—through contrasting the Court’s reasoning in Shelby v. Holder with its decisions in cases concerning national security. In Shelby, the majority characterized the Court’s review of the Voting Rights Act of 2006 as necessary given the fundamental rights at stake and the unusually broad reach of the Act in mandating federal jurisdiction over voting matters. However, in national security-related cases in which plaintiffs have alleged violations of fundamental rights, the …

Market Norms And Constitutional Values In The Government Workplace, Pauline Kim

Scholarship@WashULaw

The conventional wisdom that public employees enjoy greater rights by virtue of the Constitution may no longer hold true. In recent cases, the Supreme Court has analogized public and private employment, with the effect of eroding the speech and privacy rights of government employees. This essay critically examines this trend, arguing that reliance on an analogy to the private sector is mistaken, because the arguments for giving private employers broad managerial discretion do not apply with the same force, or at all, to government employers. Rights-based arguments do not apply to government agencies, which are publicly-funded to achieve publicly-defined purposes …

The Americans With Disabilities Act At 25: The Highest Expression Of American Values, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Enacted in 1990, the Americans with Disabilities Act (ADA) is a watershed piece of legislation which enshrines in law a social promise of equality and inclusion into all facets of life, while offering an inspiring model that much of the world has come to embrace. This editorial launches JAMA’s theme issue on the 25th anniversary of the ADA by detailing the Act’s history, main provisions, and far-reaching impacts on health, providing a context for the three Original Investigations and six scholarly Viewpoints that make up the theme issue. The editorial begins with a discussion of the ADA’s history, highlighting …

The Triumph Of Gay Marriage And The Failure Of Constitutional Law, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

The Supreme Court's much anticipated invalidation of gay marriage bans improved the personal lives of millions of ordinary Americans. It made the country a more decent place. Even Chief Justice Roberts, at the conclusion of his otherwise scathing dissent, acknowledged that the decision was a cause for many Americans to celebrate.

But although the Chief Justice thought that advocates of gay marriage should "by all means celebrate today's decision," he admonished them "not [to] celebrate the Constitution." The Constitution, he said, "had nothing to do with it".

Part I of this article quarrels with the Chief Justice's assertion that the …

Revoking Rights, Craig J. Konnoth

Publications

In important areas of law, such as the vested rights doctrine, and in several important cases--including those involving the continued validity of same-sex marriages and the Affordable Care Act--courts have scrutinized the revocation of rights once granted more closely than the failure to provide the rights in the first place. This project claims that in so doing, courts seek to preserve important constitutional interests. On the one hand, based on our understanding of rights possession, rights revocation implicates autonomy interests of the rights holder to a greater degree than a failure to afford rights at the outset. On the other …

The Policing Of Major Events In Canada: Lessons From Toronto's G20 And Vancouver's Olympics, W. Wesley Pue, Robert Diab, Grace Jackson

All Faculty Publications

Major events ranging from sporting events to major international conferences too often result in disorder, deployment of riot squads, and mass arrests. Events surrounding a meeting of the G20 in Toronto and those at Vancouver’s Winter Olympics provide insight into the ways in which things can go wrong and the ways in which they can go well at major events. This article employs a “thick history” of events in order to explore gaps in Canadian law, including gaps between “law in the books” and “law in action.”
The legal frameworks governing large-scale events affect the likelihood of success measured in …

Fixing Hollingsworth: Standing In Initiative Cases, Karl Manheim, John S. Caragozian, Donald Warner

Loyola of Los Angeles Law Review

In Hollingsworth v. Perry, the Supreme Court dismissed an appeal filed by the “Official Proponents” of California’s Proposition 8, which banned same-sex marriage in California. Chief Justice Roberts’ majority opinion held that initiative sponsors lack Article III standing to defend their ballot measures even when state officials refuse to defend against constitutional challenges. As a result, Hollingsworth provides state officers with the ability to overrule laws that were intended to bypass the government establishment—in effect, an “executive veto” of popularly-enacted initiatives.

The Article examines this new “executive veto” in depth. It places Hollingsworth in context, discussing the initiative process …

Storming The Castle: Fernandez V. California And The Waning Warrant Requirement, Joshua Bornstein

Loyola of Los Angeles Law Review

No abstract provided.

New Approaches To Old Questions In Gun Scholarship, Joseph Blocher

Faculty Scholarship

No abstract provided.

Obergefell At The Intersection Of Civil Rights And Social Movements, Suzanne B. Goldberg

Faculty Scholarship

A judicial decision striking down formalized discrimination marks a crucial moment for those it affects and, in some instances, for the surrounding society as well. The Supreme Court’s ruling in Obergefell v. Hodges was unquestionably one of those instances.

This essay considers the distinct ways in which the civil rights and social movements for marriage equality gave rise to this durable socio-political transformation. While some scholarship is skeptical about whether rights-focused advocacy can bring meaningful change to people’s day-to-day lives, I argue that the marriage equality movements demonstrate a synergistic relationship between law reform and social change efforts. During the …

Unmistakably Clear: Human Rights, The Right To Representation, And Remedial Voting Rights Of People Of Color, Matthew H. Charity

Faculty Scholarship

The Author critiques the Supreme Court’s analysis in its Shelby County v. Holder decision, which found the preclearance requirement of the Voting Rights Act unconstitutional by applying a disparate treatment analysis to how States were treated under the Act. Such a reading of the Act makes a number of tacit and explicit assumptions with regard to the choice by the Federal Government and by the States of whose rights governmental actors must protect. The Court reached its conclusion by decontextualizing the Civil Rights movement and the Voting Rights Act from decolonization and post-World War II expressions of human rights, a …

Losing Relevance: Quebec And The Constitutional Politics Of Language, Emmanuelle Richez

Osgoode Hall Law Journal

This article asks whether Quebec has lost relevance in the constitutional politics of language. It proposes a doctrinal analysis of the Supreme Court’s Charter jurisprudence, with an emphasis on the most recent body of case law, and an assessment of its political consequences in the area of language policy in Quebec. The article argues that constitutional review has increasingly protected individual rights over Quebec’s collective right to maintain its language and culture. This can be explained by the move towards an implacable parallel constitutionalism and a redefinition of official minority linguistic rights in the jurisprudence, as well as by the …

Substantive Equality As Equal Recognition: A New Theory Of Section 15 Of The Charter, Anthony Robert Sangiuliano

Osgoode Hall Law Journal

This article presents a novel theory of the concept of substantive equality under section 15(1) of the Canadian Charter of Rights and Freedoms called Substantive Equality as Equal Recognition. This contribution is timely in light of the Supreme Court of Canada’s recent disagreement over the proper jurisprudential approach to interpreting section 15(1) in the 2013 case of Quebec v A. Substantive Equality as Equal Recognition holds that the purpose of section 15(1) is to ensure that the law’s application does not reflect, through its impact or effects, hierarchies of status that exist between citizens within Canadian society. The article argues …

Unfinished Business Of Repealing “Don’T Ask, Don’T Tell”: The Military’S Unconstitutional Ban On Transgender Individuals, Kayla Quam

Utah Law Review

Discrimination based on gender identity is a form of sex discrimination. In Price Waterhouse, the Supreme Court clarified that “sex” encompasses more than biological genitalia. That ruling eviscerated the holding of Holloway, Sommers, and Ulane—the three cases the Tenth Circuit relied on in declaring that sex discrimination did not encompass gender nonconformity. At least since Price Waterhouse, discrimination against someone because of that individual’s failure to conform to sex stereotypes must be considered a form of sex discrimination.156 As transgenderism is defined as nonconformity “to that typically associated with the sex . . . assigned at birth,” discrimination based on …

First Amendment Decisions - 2002 Term, Joel Gora

Touro Law Review

No abstract provided.

Lawrence V. Texas: The Decision And Its Implications For The Future, Martin A. Schwartz

Touro Law Review

No abstract provided.

United States Ratification Of The United Nations Covenants, Richard B. Lillich

Georgia Journal of International & Comparative Law

No abstract provided.

Closing The Doors To Justice: A Critique Of Pimentel V. Dreyfus And The Application Of Legal Formalism To The Elimination Of Food Assistance Benefits For Legal Immigrants, Hannah Zommick

Seattle University Law Review

This Comment contends that the Ninth Circuit’s opinion in Pimentel v. Dreyfus employed a legal formalist approach and that by applying this framework, the court prevented legal immigrants, who were caught between the strict eligibility restrictions of welfare reform, from asserting their rights through the justice system. The legal formalist approach “treats the law as a set of scientific formulae or principles that are derived from the study of case law. These principles create an internal analytical framework which, when applied to a set of facts, leads the decision maker, through logical deduction, to the correct outcome in a case.” …

Federal Civil Rights Litigation Pursuant To 42 U.S.C. §1983 As A Correlate Of Police Misconduct, Philip M. Stinson, Steven L. Brewer Jr, Theresa M. Lanese, Mallorie A. Wilson

Criminal Justice Faculty Publications

Police officers acting in their official capacity are subject to being sued in federal court pursuant to 42 U.S.C. §1983 for violating constitutional rights under the color of law. Using data obtained in a larger study on police crime in the United States, names of more than 5,500 nonfederal sworn law enforcement officers who were arrested during the years 2005-2011 were checked against the civil case party master name index of the federal courts’ Public Access to Courts Electronic Records (PACER) system. Findings indicate that more than 20% of the police officers who were arrested for committing one or more …

Appellate Division, Third Department, Novara Ex Rel. Jones V. Cantor Fitzgerald, Lp, Kerri Grzymala

Touro Law Review

No abstract provided.

Appellate Division, Second Department, Langan V. St. Vincent's Hospital Of New York, Christin Harris

Touro Law Review

No abstract provided.

Supreme Court, Tompkins County, Seymour V. Holcomb, Jessica Goodwin

Touro Law Review

No abstract provided.