Constitutional Law Commons^™

The Vitality Of The American Sovereign, Todd E. Pettys

Michigan Law Review

The proposition that "the people" are the preeminent sovereign in the United States has long been a tenet of American public life. The authors of the Declaration of Independence characterized the American people's sovereignty as a "self-evident" truth when announcing the colonies' decision to sever their ties with Great Britain, the delegates to the Philadelphia Convention in 1787 invoked the people's sovereignty when framing the nation's Constitution, and Americans today exercise their sovereignty each time they cast their ballots on Election Day. Yet what prerogatives, precisely, does the people's sovereignty entail? In modern America, where neither a bloody revolution nor …

'Struck' By Stereotype: Ruth Bader Ginsburg On Pregnancy Discrimination As Sex Discrimination, Neil S. Siegel, Reva B. Siegel

Faculty Scholarship

This is an attempt at recovery. This Essay hopes to call attention to then-Professor Ruth Bader Ginsburg's merits brief in Struck v. Secretary of Defense. The brief has been under appreciated in part because the Supreme Court declined to decide the case. But anyone seeking to understand the origins and nature of Justice Ginsburg's views on sex discrimination would be well advised to read this brief. So would anyone interested in reimagining the bounds of constitutional possibility in the realm of gender equality.

A Coase Theorem For Constitutional Theory, Neil S. Siegel

Faculty Scholarship

There is much to admire about Barry Friedman’s new book, The Will of the People. Explaining how the institution of judicial review was made safe for democracy in America, Friedman’s story is extensively researched, beautifully written, scrupulously nonpartisan about the modern Court, and frequently humorous. What is more, his primary claim - that the Supreme Court of the United States is very much a democratic institution because judicial review always has been responsive to public opinion - is, to a large extent, convincing. I have taught The Will of the People in my first-year constitutional law course, and I plan …

The Functions Of Ethical Originalism, Richard A. Primus

Articles

Supreme Court Justices frequently divide on questions of original meaning, and the divisions have a way of mapping what we might suspect are the Justices’ leanings about the merits of cases irrespective of originalist considerations. The same is true for law professors and other participants in constitutional discourse: people’s views of original constitutional meaning tend to align well with their (nonoriginalist) preferences for how present constitutional controversies should be resolved. To be sure, there are exceptions. Some people are better than others at suspending presentist considerations when examining historical materials, and some people are better than others at recognizing when …

The Strange Origins Of The Constitutional Right Of Association, John D. Inazu

Scholarship@WashULaw

Although much has been written about the freedom of association and its ongoing importance to American constitutionalism, much recent scholarship mistakenly relies on a truncated history that begins with Roberts v. United States Jaycees, 468 U.S. 609 (1984), the case that divided constitutional association into intimate and expressive components. Roberts’s doctrinal framework has been rightly criticized. However, neither the right of association nor all of its doctrinal problems start there. The Supreme Court’s foray into the constitutional right of association began a generation earlier with NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958).

This article offers a new …

Public Interest(S) And Fourth Amendment Enforcement, Alexander A. Reinert

Articles

Fourth Amendment events generate substantial controversy among the public and in the legal community. Yet there is orthodoxy to Fourth Amendment thinking, reflected in the near universal assumption by courts and commentators alike that the amendment creates only tension between privately held individual liberties and public-regarding interests in law enforcement and security. On this account, courts are faced with a clear choice when mediating Fourth Amendment conflicts: side with the individual by declaring a particular intrusion to be in violation of the Constitution or side with the public by permitting the intrusion. Scholarly literature and court decisions are accordingly littered …

Who Judges? Who Cares? History Now And Then, Barbara Aronstein Black

Faculty Scholarship

There are two strands of history: Call them strand A and strand B. A: "How independent are those who judge?" B: "Where is the judicial power located?" At a high enough level of abstraction the strands merge (as, at a high enough level of abstraction, what does not?). The issue then becomes whether in a given society all judging is in the hands of independent judges. And the point is that there are two ways of avoiding the decision of cases by independent judges, corresponding, naturally, to the two strands of history:

[A] Through the judges: Punish them, reward them, …

Administering The Second Amendment: Law, Politics, And Taxonomy , Nicholas J. Johnson

Faculty Scholarship

This article anticipates the post-McDonald landscape by assessing the right to arms in the context of several state regulations and the arguments that might be employed as challenges to them unfold. So far, the core test for determining the scope of the individual right to arms is the common use standard articulated in District of Columbia v. Heller. Measured against that, standard firearm regulations fit into three categories. The first category contains laws that are easily administered under the common use standard. The second category – and the primary focus of this article – consists of laws that can be …

“Consolidating The New Position (1938-1940)”: A Study Of The Tenure Of Robert H. Jackson: March 5, 1938 To January 18, 1940, Nicholas John Stamato

Dissertations - ALL

Robert H. Jackson’s service as Solicitor General has attained mythic status, prompting academics and commentators consistently to rate him as one of the greatest appointees to that office. In part, his stature reflects his extraordinary skill as an attorney. In some measure, Jackson’s legend draws upon the Supreme Court’s growing liberalism, which occurred upon his watch. As Peter Ubertaccio argues in his history of the office, Learned in the Law and Politics, the stature of the Solicitor General suffered during the early 1930s, when the court generally ruled against the government, then improved as the court sided with the Roosevelt …

The Sit-Ins And The State Action Doctrine, Christopher W. Schmidt

All Faculty Scholarship

By taking their seats at “whites only” lunch counters across the South in the spring of 1960, African American students not only launched a dramatic new stage in the civil rights movement, they also sparked a national reconsideration of the scope of the constitutional equal protection requirement. The critical constitutional question raised by the sit-in movement was whether the Fourteenth Amendment, which after Brown v. Board of Education (1954) prohibited racial segregation in schools and other state-operated facilities, applied to privately owned accommodations open to the general public. From the perspective of the student protesters, the lunch counter operators, and …

Examining Presidential Power Through The Rubric Of Equity, Eric A. White

Michigan Law Review

In this Note I propose a method to examine presidents' actions taken outside the normal bounds of executive power by employing the general rubric of equity, in an attempt to find when the president acts with what I term "practical legitimacy." This would be a new category for executive actions that, while perhaps arguably illegal, are so valuable that we want to treat them as legitimate exercises of executive power. To do so, I first examine the history of equity, noting the many relevant parallels to our modern conception of executive power In light of these parallels, I argue that …

Mothers And Sons: The Lloyd Schlup Story, Sean O'Brien

Faculty Works

This article tells the back story of the near-execution of Lloyd Schlup, condemned to die in Missouri for the 1984 murder of fellow Missouri State Penitentiary prisoner Arthur Dade, Jr. Mr. Schlup came within hours of execution before the Supreme Court granted certiorari on his case to decide whether a prisoner who is probably innocent can avail himself of the habeas corpus remedy. Mr. Schlup's and Mr. Dade's mothers played pivotal roles in the ultimate outcome of Schlup v. Delo, 513 U.S. 298 (1995). Dedicated to the memory of Nancy Slater.

'Equal Citizenship Stature': Justice Ginsburg’S Constitutional Visionq, Neil S. Siegel

Faculty Scholarship

In this essay, Professor Siegel examines the nature and function of constitutional visions in the American constitutional order. He argues that Associate Justice Ruth Bader Ginsburg possesses such a vision and that her vision is defined by her oft-stated commitment to “full human stature,” to “equal citizenship stature.” He then defends Justice Ginsburg’s characteristically incremental and moderate approach to realizing her vision. He does so in part by establishing that President Barack Obama articulated a similar vision and approach in his Philadelphia speech on American race relations and illustrated its capacity to succeed during the 2008 presidential election.

Abortion Across State Lines, Joseph W. Dellapenna

Working Paper Series

In this Article, I propose to analyze conflicts of law precedents and theory to explore the extent to which a state can apply its law on abortion to abortions performed outside the state but bearing a significant connection to the state. In attempting to resolve such questions, we enter into the domain of choice of law, part of the field of conflicts of law. This domain is notoriously unstable and contested. This instability allows legal commentators to project their attitudes towards abortion (and many other matters) in analyzing and construing the relevant authorities to resolve choice of law issues. I …

The Appropriations Power And Sovereign Immunity, Paul F. Figley, Jay Tidmarsh

Michigan Law Review

Discussions of sovereign immunity assume that the Constitution contains no explicit text regarding sovereign immunity. As a result, arguments about the existence-or nonexistence-of sovereign immunity begin with the English and American common-law doctrines. Exploring political, fiscal, and legal developments in England and the American colonies in the seventeenth and eighteenth centuries, this Article shows that focusing on common-law developments is misguided. The common-law approach to sovereign immunity ended in the early 1700s. The Bankers' Case (1690- 1700), which is often regarded as the first modern common-law treatment of sovereign immunity, is in fact the last in the line of English …

Supreme Neglect Of Text And History, William Michael Treanor

Michigan Law Review

Since his classic book Takings appeared in 1985, Richard Epstein's ideas have profoundly shaped debate about the Fifth Amendment's Takings Clause to a degree that no other scholar can even begin to approach. His broad, original, and stunningly ambitious reading of the clause has powerfully influenced thinking in academia, in the judiciary, and in the political arena. The firestorm of controvery that followed the Supreme Court's recent decision in Kelo - in which the Supreme Court upheld the constitutionality of a municipal urban renewal plan that displaced long-time homeowners and conveyed their land to developers - is in critical part …

St. George Tucker's Lecture Notes, The Second Amendment, And Originalist Methodology: A Critical Comment, Saul Cornell

NULR Online

No abstract provided.

"Airbrushed Out Of The Constitutional Canon": The Evolving Understanding Of Giles V. Harris, 1903-1925, Samuel Brenner

Michigan Law Review

Richard H. Pildes argued in an influential 2000 article that the U.S. Supreme Court's opinion in Giles v. Harris, which was written by Justice Oliver Wendell Holmes, was the "one decisive turning point" in the history of "American (anti)-democracy." In Giles, Holmes rejected on questionable grounds Jackson W. Giles's challenge to the new Alabama Constitution of 1901-a document which was designed to disfranchise and had the effect of disfranchising African Americans. The decision thus contributed significantly to the development of the all-white electorate in the South, and the concomitant marginalization of southern African Americans. According to Pildes, however, the …

The Story Of Bivens V. Six Unknown-Named Agents Of The Federal Bureau Of Narcotics, James E. Pfander

Faculty Working Papers

In Bivens v. Six Unknown-Named Agents of the Federal Bureau of Narcotics, the Supreme Court recognized the right of an individual to sue federal government officials for a violation of constitutional rights. Drawing on interviews with some of the participants, including Webster Bivens himself and one of the agents who conducted the search, this chapter in the forthcoming book Federal Courts' Stories describes the events that led to the litigation and the complex array of factors that informed the Court's approach to the case. After placing the Bivens decision in context, the chapter evaluates the competing narratives that have grown …

Book Review: Henry J. Richardson Iii, The Origins Of African-American Interests In International Law, D. A. Jeremy Telman

Law Faculty Publications

This short review evaluates Professor Richardson's book both as a contribution to the history of the Atlantic slave trade and as contribution to critical race theory.

Professor Richardson has read innumerable historical monographs, works of legal and sociological theory, international law and critical race theory. Armed with this store of knowledge, he is able to recount a detailed narrative of African-American claims to, interests in and appeals to international law over approximately two centuries spanning, with occasional peeks both forward and backward in time, from the landing of the first African slaves at Jamestown in 1619 to the 1815 Treaty …

Draining The Morass: Ending The Jurisprudentially Unsound Unpublication System, David R. Cleveland

Law Faculty Publications

No abstract provided.

Robert George’S The Clash Of Orthodoxies: Law, Religion, And Morality In Crisis, Jeffrey C. Tuomala

Faculty Publications and Presentations

No abstract provided.

Originalism And The Difficulties Of History In Foreign Affairs, Eugene Kontorovich

Faculty Working Papers

This Article spotlights some of the idiosyncratic features of admiralty law at the time of the founding. These features pose challenges for applying the original understanding of the Constitution to contemporary questions of foreign relations. Federal admiralty courts were unusual creatures by Article III standards. They sat as international tribunals applying international and foreign law, freely hearing cases that implicated sensitive questions of foreign policy, and liberally exercising universal jurisdiction over disputes solely between foreigners. However, these powers did not arise out of the basic features of Article III, but rather from a felt need to opt into the preexisting …

The Living Constitution Of Ancient Athens: A Comparative Perspective On The Originalism Debate, 42 J. Marshall L. Rev. 463 (2009), Mark J. Sundahl

UIC Law Review

No abstract provided.

Social Movements, Social Process: A Response To Gerald Rosenberg, 42 J. Marshall L. Rev. 671 (2009), Laura Beth Nielsen

UIC Law Review

No abstract provided.

39th Congress (1865-1867) And The 14th Amendment: Some Preliminary Perspectives, Richard Aynes

Akron Law Faculty Publications

The 39th Congress (1865-1867) was one of the important Congresses in our history. It passed more legislation than any other Congress up to that time.

This preliminary examination of the 39th Congress begins with a look it composition. One of the critical factors was that while the 38th Congress contained a majority of unionists, the 39th Congress contained a super-majority which meant not only that they could override a Presidential veto, but also that they did not need to take the Democratic opposition seriously. This article also identifies the leadership of the 39th Congress. The 38th Congress was composed of …

The Framers' Search Power: The Misunderstood Statutory History Of Suspicion & Probable Cause, Fabio Arcila, Jr.

Scholarly Works

Originalist analyses of the Framers’ views about governmental search power have devoted insufficient attention to the civil search statutes they promulgated for regulatory purposes. What attention has been paid concludes that the Framers were divided about how accessible search remedies should be. This Article explains why this conventional account is mostly wrong and explores the lessons to be learned from the statutory choices the Framers made with regard to search and seizure law. In enacting civil search statutes, the Framers chose to depart from common law standards and instead largely followed the patterns of preceding British civil search statutes. The …

The Appropriations Power And Sovereign Immunity, Paul F. Figley

Scholarly Articles in Law Reviews & Journals

Discussions of sovereign immunity assume that the Constitution contains no explicit text regarding sovereign immunity. As a result, arguments about the existence - or nonexistence - of sovereign immunity begin with the English and American common-law doctrines. Exploring political, fiscal, and legal developments in England and the American colonies in the seventeenth and eighteenth centuries, this Article shows that focusing on common-law developments is misguided. The common-law approach to sovereign immunity ended in the early 1700s. The Bankers’ Case (1690–1700), which is often regarded as the first modern common-law treatment of sovereign immunity, is in fact the last in the …

In The Matter Of Ottinger V. Non-Party The Journal News, Daniel Haier

NYLS Law Review

No abstract provided.

Rebalancing The Scales: Restoring The Availability Of Disparate Impact Causes Of Action In Title Vi Cases, Victor Suthammanont

NYLS Law Review

No abstract provided.