Constitutional Law Commons^™

Persistence And Resistance: Women’S Leadership And Ending Gender-Based Violence In Guatemala, Serena Cosgrove, Kristi Lee

Seattle Journal for Social Justice

No abstract provided.

Criminal Prosecution And Section 1983, Barry C. Scheck

Touro Law Review

No abstract provided.

The Promise Of America, Joseph A. Greenaway Jr.

Cardozo Law Review

No abstract provided.

Reconceptualizing The Eighth Amendment: Slaves, Prisoners, And Cruel And Unusual Punishment, Alexander A. Reinert

Articles

The meaning of the Eighth Amendment’s Cruel and Unusual Punishment Clause has long been hotly contested. For scholars and jurists who look to original meaning or intent, there is little direct contemporaneous evidence on which to rest any conclusion. For those who adopt a dynamic interpretive framework, the Supreme Court’s “evolving standards of decency” paradigm has surface appeal, but deep conflicts have arisen in application. This Article offers a contextual account of the Eighth Amendment’s meaning that addresses both of these interpretive frames by situating the Amendment in eighteenth and nineteenth-century legal standards governing relationships of subordination.

In particular, I …

The Curious Case Of Cell Phone Location Data: Fourth Amendment Doctrine Mash-Up, Monu Bedi

Northwestern University Law Review

Police surveillance ability and information gathering capacity have a dynamic relationship with technology. Greater advancements in technology make it easier for the police to surveil individuals and collect information. This state of affairs leads to heightened concerns over Fourth Amendment protection. This issue has most recently played out in the context of police collecting cell phone location data. Courts disagree on whether and to what extent this data garners Fourth Amendment protection. Underlying this disagreement rests a hitherto overlooked tension between two interrelated Fourth Amendment doctrines—the third-party and the public disclosure doctrines. While both vitiate privacy protection and are commonly …

The Bellona Company's Case, Casey Conrad

Legal History Publications

The Bellona Gunpowder Company of Maryland was one of Maryland’s most prominent gunpowder manufactories during the early nineteenth century. Founded in 1801, the gunpowder company become the second leading gunpowder producer for the American government, and supplied almost one-fifth of American domestic gunpowder. In 1828, the Baltimore and Susquehanna Railroad Company was incorporated by the State of Maryland to construct a railroad that would connect the City of Baltimore to the Susquehanna River. The legislature authorized the railroad company to initiate condemnation proceedings against private property owners, if it was unable to negotiate for the sale of such land. In …

Residency And Democracy: Durational Residency Requirements From The Framers To The Present, Eugene D. Mazo

Florida State University Law Review

After years of struggle, we no longer require property ownership, employ poll taxes, or force citizens to take literary tests to vote. The franchise is now also open to women, African Americans, and other groups that were previously disenfranchised. However, our states still prevent citizens from voting if they fail to meet a durational residency requirement. The states also impose lengthy durational residency requirements on candidates seeking public office. This Article examines the history of America’s durational residency requirements. It looks at the debates of the framers at the Constitutional Convention, at how state durational residency requirements were broadened in …

Choice At Work: Young V. United Parcel Service, Pregnancy Discrimination, And Reproductive Liberty, Mary Ziegler

Scholarly Publications

In deciding Young v. United Parcel Service, the Supreme Court has intervened in ongoing struggles about when and whether the Pregnancy Discrimination Act of 1978 (PDA) requires the accommodation of pregnant workers. Drawing on original archival research, this Article historicizes Young, arguing that the PDA embodied a limited principle of what the Article calls meaningful reproductive choice. Feminist litigators first forged such an idea in the early 1970s, arguing that heightened judicial scrutiny should apply whenever state actors placed special burdens on women who chose childbirth or abortion.

A line of Supreme Court decisions completely rejected this understanding …

Originalism’S Bite, William Baude, Stephen E. Sachs

Faculty Scholarship

Is originalism toothless? Richard Posner seems to think so. He writes that repeated theorizing by "intelligent originalists," one of us happily included, has rendered the theory "incoherent" and capable of supporting almost any result. We appreciate the attention, but we fear we've been misunderstood. Our view is that originalism permits arguments from precedent, changed circumstances, or whatever you like, but only to the extent that they lawfully derive from the law of the founding. This kind of originalism, surprisingly common in American legal practice, is catholic in theory but exacting in application. It might look tame, but it has bite.

Second Amendment Traditionalism And Desuetude, Darrell A. H. Miller

Faculty Scholarship

No abstract provided.

Continuity And The Declaration Of Independence, Darrell A. H. Miller

Faculty Scholarship

No abstract provided.

The Refracted Constitution: Classical Liberalism And The Lessons Of History, 101 Iowa L. Rev. Online 97 (2016), Samuel R. Olken

UIC Law Open Access Faculty Scholarship

As a prism refracts light, bending its rays in different directions and revealing its many colors, the Constitution also refracts the myriad perceptions of its interpreters. The debate published last fall in the Iowa Law Review between Professors Herbert Hovenkamp and Richard Epstein over whether the Constitution is, in the words of Professor Epstein, “a classical liberal document,” reveals divergent perspectives about the role of history in constitutional interpretation. Professor Epstein, who for much of his career has analyzed constitutional issues through the lens of law and economics, is primarily a legal theorist for whom history provides examples of how …

North Carolina State Board Of Dental Examiners V. Ftc: Aligning Antitrust Law With Commerce Clause Jurisprudence Through A Natural Shift Of State-Federal Balance Of Power, Marie Forney

Indiana Law Journal

The Supreme Court’s holding in North Carolina State Board of Dental Examiners v. FTC (NC Dental)1 in February 2015 demonstrates a natural shift in the balance of power from the states to the national government. As the country’s interstate and international economy has become more integrated, federal authority has likewise expanded.2 And although the federalism dichotomy has undergone periodic back-and-forth “swings” since the nation’s founding, the end result has been a net increase in federal power. NC Dental exemplifies this trend toward increasing national au-thority through the organic development of interstate commerce.

The Declaration Of Independence And Constitutional Interpretation, Alexander Tsesis

Faculty Publications & Other Works

This Article argues that the Reconstruction Amendments incorporated the human dignity values of the Declaration of Independence. The original Constitution contained clauses, which protected the institution of slavery, that were irreconcilable with the normative commitments the nation had undertaken at independence. The Thirteenth, Fourteenth, and Fifteenth Amendments set the country aright by formally incorporating the Declaration of Independence's principles for representative governance into the Constitution.

The Declaration of Independence provides valuable insights into matters of human dignity, privacy, and self-government. Its statements about human rights, equality, and popular sovereignty establish a foundational rule of interpretation. While the Supreme Court has …

Political Dysfunction And The Election Of Donald Trump: Problems Of The U.S. Constitution's Presidency, David Orentlicher

Scholarly Works

In this article, Professor Orentlicher examines the Constitution's design for the executive branch. He argues that by opting for a single executive rather than a multi-person executive, the Constitution causes two serious problems-it fuels the high levels of partisan polarization that we see today, and it increases the likelihood of misguided presidential decision making. Drawing on the experience in other countries with executive power shared by multiple officials, he proposes a bipartisan executive.

Inherent National Sovereignty Constitutionalism: An Original Understanding Of The U.S. Constitution, Robert J. Kaczorowski

Faculty Scholarship

No abstract provided.

Judge Judith Kaye At Skadden, Arps, Barry H. Garfinkel

Brooklyn Law Review

This collection of remarks from scholars, practitioners, and judges serves as a tribute to the life of the beloved and esteemed Judge Kaye and her commitment to the New York State Constitution. The collection culminates with Judge Kaye’s final essay, written for the Brooklyn Law Review, with her reflections on opportunity in life and law and New York’s State Constitution.

The Making Of A Judge's Judge: Judith S. Kaye's 1987 Cardozo Lecture, Henry M. Greenberg

Brooklyn Law Review

This collection of remarks from scholars, practitioners, and judges serves as a tribute to the life of the beloved and esteemed Judge Kaye and her commitment to the New York State Constitution. The collection culminates with Judge Kaye’s final essay, written for the Brooklyn Law Review, with her reflections on opportunity in life and law and New York’s State Constitution.

For Judith S. Kaye, Susan N. Herman

Brooklyn Law Review

This collection of remarks from scholars, practitioners, and judges serves as a tribute to the life of the beloved and esteemed Judge Kaye and her commitment to the New York State Constitution. The collection culminates with Judge Kaye’s final essay, written for the Brooklyn Law Review, with her reflections on opportunity in life and law and New York’s State Constitution.

Reflections On Opportunity In Life And Law, Judith S. Kaye

Brooklyn Law Review

This essay was written by Judge Kaye in the fall of 2015 for the Brooklyn Law Review. She reflects on her life, her time on the bench, and the significance of New York’s Constitutional Convention. Through the lens of dual constitutionalism and her own life story, Judge Kaye opines on the opportunities in life and law that are not to be missed.

A Tribute To Chief Judge Judith S. Kaye, Hon. Janet Difiore

Brooklyn Law Review

This collection of remarks from scholars, practitioners, and judges serves as a tribute to the life of the beloved and esteemed Judge Kaye and her commitment to the New York State Constitution. The collection culminates with Judge Kaye’s final essay, written for the Brooklyn Law Review, with her reflections on opportunity in life and law and New York’s State Constitution.

Taking Constitutional Identities Away From The Courts, Pietro Faraguna

Brooklyn Journal of International Law

In federal states, constitutional identity is the glue that holds together the Union. On the contrary, in the European Union—not a fully-fledged federation yet—each Member state has its own constitutional identity. On the one hand, the Union may benefit from the particular knowledge, innovation, history, diversity, and culture of its individual states. On the other hand, identity-related claims may have a disintegrating effect. Constitutional diversity needs to come to terms with risks of disintegration. The Treaty on the European Union seeks a balance, providing the obligation to respect the constitutional identities of its Member states. Drawing from the European experience, …

A Tribute To Judge Kaye, Nicholas W. Allard

Brooklyn Law Review

This collection of remarks from scholars, practitioners, and judges serves as a tribute to the life of the beloved and esteemed Judge Kaye and her commitment to the New York State Constitution. The collection culminates with Judge Kaye’s final essay, written for the Brooklyn Law Review, with her reflections on opportunity in life and law and New York’s State Constitution.

Recovering Forgotten Struggles Over The Constitutional Meaning Of Equality, Helen Norton

Publications

No abstract provided.

How Presidents Interpret The Constitution, Harold H. Bruff

Publications

No abstract provided.

The President's Faithful Execution Duty, Harold H. Bruff

Publications

No abstract provided.

Why Foreign Policy Principles Persist: Understanding The Reinterpretations Of Japan’S Article 9 And Switzerland’S Neutrality, Yuki Numata

Pomona Senior Theses

This study examines why Japan and Switzerland have chosen to keep the vocabulary of Article 9 and neutrality, respectively, and to reinterpret their definitions to suit their needs (policy reinterpretation), instead of simply abandoning the original policy and replacing it with a new, more suitably worded policy that clarifies the changing policy position of the government (policy abandonment). By analyzing the legal history of the overseas capabilities of the Japanese Self-Defense Forces and the Swiss Armed Forces, as well as the actions and influences of the government, political parties, and the public, this study finds the following trends. First, the …

Debunking Humphrey's Executor, Daniel A. Crane

Articles

The Supreme Court’s 1935 Humphrey’s Executor decision paved the way for the modern administrative state by holding that Congress could constitutionally limit the President’s powers to remove heads of regulatory agencies. The Court articulated a quartet of features of the Federal Trade Commission’s (“FTC”) statutory design that ostensibly justified the Commission’s constitutional independence. It was to be nonpartisan and apolitical, uniquely expert, and performing quasi-legislative and quasi-judicial, rather than executive, functions. In recent years, the staying power of Humphrey’s Executor has been called into question as a matter of constitutional design. This Essay reconsiders Humphrey’s Executor from a different angle. …

Practice And Precedent In Historical Gloss Games, Joseph Blocher, Margaret H. Lemos

Faculty Scholarship

No abstract provided.

The Political Economy Of "Constitutional Political Economy", Jeremy K. Kessler

Faculty Scholarship

Since the early 1990s, constitutional history has experienced a renaissance. This revival had many causes, but three stand out: the Rehnquist Court's attack on formerly sacrosanct features of the "New Deal agenda"; Reagan-Era reassessments of American political development by political scientists, historians, and historical sociologists; and the frustration of constitutional scholars with the inability of legal process theory or political philosophy to produce "authoritative constitutional principles." Spurred by legal crisis and this mix of disciplinary innovation and stagnation, law professors began to tell new stories about our constitutional heritage. They focused on the sources and significance of the New Deal's …