Constitutional Law Commons^™

Answering The Call: A History Of The Emergency Power Doctrine In Texas And The United States, P. Elise Mclaren

St. Mary's Law Journal

During times of emergency, national and local government may be allowed to take otherwise impermissible action in the interest of health, safety, or national security. The prerequisites and limits to this power, however, are altogether unknown. Like the crises they aim to deflect, courts’ modern emergency power doctrines range from outright denial of any power of constitutional circumvention to their flagrant use. Concededly, courts’ approval of emergency powers has provided national and local government opportunities to quickly respond to emergency without pause for constituency approval, but how can one be sure the availability of autocratic power will not be abused? …

Texas Disenfranchisement Of Felons, Michelle Baker

Quest

Policy Research Project

Research in progress for GOVT 2306: Honors Texas Government

Faculty Mentor: Tiffany Cartwright, Ph.D.

Michelle Baker wrote the following research paper as an assignment for my online GOVT 2306: Honors Texas Government class during the Fall 2020 semester. The class assignment helps students begin to formulate a classic policy paper, in which alternative policy options are discussed and analyzed, ultimately leading to a preferred policy option. Students submitted just a few paragraphs of the paper at a time over the course of the fall semester before finally pulling everything together in one cohesive research paper. As Michelle’s …

Tech And Authoritarianism: How The People’S Republic Of China Is Using Data To Control Hong Kong And Why The U.S. Is Vulnerable, Bryce Neary

Seattle Journal of Technology, Environmental, & Innovation Law

The aim of this article is to analyze and compare current events in the People's Republic of China and the United States to discuss the moral dilemmas that arise when establishing the boundary between national security interests and individual privacy rights. As we continue to intertwine our lives with technology, it has become increasingly important to establish clear privacy rights. The question then becomes: at what point should individuals sacrifice their rights for what the government considers the "greater good" of the country?

Further, this article analyzes the development of U.S. privacy law and its relationship to national security, technology, …

Moving From Harm Mitigation To Affirmative Discrimination Mitigation: The Untapped Potential Of Artificial Intelligence To Fight School Segregation And Other Forms Of Racial Discrimination, Andrew Gall

Catholic University Journal of Law and Technology

No abstract provided.

The Negative Impact Of Service Member And Veteran Post Traumatic Stress Disorder (Ptsd) Rating Or Specter Of Ptsd On Child Custody Arrangements, Erhan Bedestani

Catholic University Journal of Law and Technology

No abstract provided.

Domsetic Terrorism: Not Actually A Crime, But Desperately In Need Of A Federal Response, Rebecca K. Tucker

Lewis & Clark Law Review

Since the founding of the United States, the U.S. Government has dealt with national security threats, both external and internal. While there are federal laws in place to protect the nation against external actors, these instruments cannot be turned directly inward to address the rising threat of domestic terrorism. This Comment explains the issues with that approach and concludes by proposing specific solutions, focusing on the need for a coordinated response from the agencies and departments tasked with the investigation, intelligence, and prevention of domestic violent extremism and terrorism.

Immigration Detention As A Violation Of Transgender Detainees' Substantive Due Process Rights, Emily Torstveit Ngara

Lewis & Clark Law Review

Noncitizens in immigration proceedings are often subject to civil detention pending a final decision on their case. Transgender individuals in immigration detention are at high risk for physical and sexual assault, cruel and degrading treatment, denial of necessary medical care, and protective isolation. The well-documented harms caused to transgender individuals in detention violate Fifth Amendment substantive due process. This Article documents the harms of immigration detention specific to the transgender community, reviews substantive due process jurisprudence in the civil detention context, and analogizes Eighth Amendment claims for transgender prisoners to substantive due process claims. Immigration detention is predicated on the …

Back To The Sources? What’S Clear And Not So Clear About The Original Intent Of The First Amendment, John Witte Jr.

Faculty Articles

This Article peels through these layers of founding documents before exploring the final sixteen words of the First Amendment religion clauses. Part I explores the founding generation’s main teachings on religious freedom, identifying the major principles that they held in common. Part II sets out a few representative state constitutional provisions on religious freedom created from 1776 to 1784. Part III reviews briefly the actions by the Continental Congress on religion and religious freedom issued between 1774 and 1789. Part IV touches on the deprecated place of religious freedom in the drafting of the 1787 United States Constitution. Part V …

A Proportionality-Based Framework For Government Regulation Of Digital Tracing Apps In Times Of Emergency, Sharon Bassan

Dickinson Law Review (2017-Present)

Times of emergency present an inherent conflict between the public interest and the preservation of individual rights. Such times require granting emergency powers to the government on behalf of the public interest and relaxing safeguards against government actions that infringe rights. The lack of theoretical framework to assess governmental decisions in times of emergency leads to a polarized and politicized discourse about potential policies, and often, to public distrust and lack of compliance.

Such a discourse was evident regarding Digital Tracing Apps (“DTAs”), which are apps installed on cellular phones to alert users that they were exposed to people who …

Keeping It Complex With Philip Hunton, John Locke, And The United States Federal Judiciary: On The Merit Of Murkiness In Separation Of Powers Jurisprudence, Michelle M. Kundmueller

Political Science & Geography Faculty Publications

This article draws on the resources of a little-known political theorist, Philip Hunton, to explain the function of “murky” jurisprudence in the maintenance of separation of powers over time. In the era immediately before the drafting of the United States Constitution, separation of powers was a touted remedy to tyranny. But if government is thus moderated, a critical question arises: who will judge the precise contours of each institution’s powers? This article addresses this longstanding question by comparing the solutions offered by Philip Hunton, John Locke, and the United States judiciary. I conclude that the judiciary’s decried inability to clarify …

Not A Suicide Pact: Urgent Strategic Recommendations For Reducing Domestic Terrorism In The United States, Barbara L. Mcquade

Articles

America’s Bill of Rights protects U.S. citizens’ rights to free speech, to bear arms, and to be free from unreasonable searches and seizures, among other things. But, as the Supreme Court has consistently held, no right is absolute. All rights must be balanced against other societal needs, including and especially public safety. As the threat of domestic terrorism metastasizes in the United States, Americans need to use the practical wisdom that Justice Robert L. Jackson advised in 1949 to ensure the survival of the republic.

In recognition of this growing threat, the Biden administration issued the nation’s first National Strategy …

Defending The Defenders: Why Bureaucratic Independence Is A Necessary Supplement To Judicial Defense Of Democracy The Specter Of Dictatorship: Judicial Enabling Of Presidential Power, Andrea Scoseria Katz

Scholarship@WashULaw

A familiar story is being observed in countries ranging from Brazil to Australia, the United States, and Poland, as elected executives deploy a populist threat narrative to politicize the rule of law and entrench themselves in power. Out of the academy, a growing literature on democratic “backsliding” or “decline” proposes a menu of “guardrails” for shoring up democracy from gradual collapse. Broadly, these guardrails fall under two headings: I call one judicial, the other bureaucratic. The former looks to the power of judicial review, under which courts may invalidate enactments that threaten, not just the Constitution, but the very democratic …

Revisiting America's Guardrails The Constitution And Democratic Erosion Symposium, Andrea Scoseria Katz

Scholarship@WashULaw

A familiar story is being observed in countries ranging from Brazil to Australia, the United States, and Poland as elected executives deploy a populist threat narrative to politicize the rule of law and entrench themselves in power. Out of the academy, a growing literature proposes a menu of “guardrails” for shoring up democracy from backsliding or decline. Some see guardrails in society and culture, calling for rebuilding civic norms of tolerance. Others call for stricter rules in administering elections, to prevent undue influence. Others call for greater judicial intervention, tasking courts with striking down enactments that threaten the constitution or …

Unresponsive Judicial Review: How Formalism On The American Bench Thwarts Democracy Defense, Andrea Scoseria Katz

Scholarship@WashULaw

At a time when worldwide democratic decline is of grave concern, Rosalind Dixon’s Responsive Judicial Review is vital and timely. Dixon sketches an attractive vision of courts’ highest role as one of democracy-defense: protecting free and fair elections, ensuring rights and freedoms remain in vigor, muscularly enforcing checks and balances. Granted, argues Dixon, “responsive” courts must exercise their powers in a context-sensitive way; courts in fraught environments cannot get away with quite as much entrepreneurial judging as their counterparts, and they should tailor a remedy to ensure, one, its own feasibility, and two, the court’s survival. The pragmatic character of …

No New Tax Cuts? Examining The Rescue Plan's New State Tax Limits, Conor Clarke, Edward Fox

Scholarship@WashULaw

In this article, Clarke and Fox examine the American Rescue Plan Act’s restrictions on state tax cuts, arguing that the restrictions are a variation on more familiar maintenance-of-effort provisions. These provisions are common, and are designed to help ensure that federal grants supplement rather than supplant state spending by requiring the state to maintain its level of spending on a program. Clarke and Fox conclude that the Rescue Plan’s requirements create similar incentives, and argue that the similarity makes it more likely that the act’s tax provisions are consonant with the Constitution’s spending clause.

The Lawfulness Of The Fifteenth Amendment, Travis Crum

Scholarship@WashULaw

One of the most provocative debates in constitutional theory concerns the lawfulness of the Reconstruction Amendments’ adoptions. Scholars have contested whether Article V permits amendments proposed by Congresses that excluded the Southern States and questioned whether those States’ ratifications were obtained through unlawful coercion. Scholars have also teased out differences in how States were counted for purposes of ratifying the Thirteenth and Fourteenth Amendments. This debate has focused exclusively on the Thirteenth and Fourteenth Amendments, dismissing the Fifteenth Amendment as a mere sequel.

As this Essay demonstrates, the unique issues raised by the Fifteenth Amendment’s ratification adds important nuance to …

Deregulated Redistricting, Travis Crum

Scholarship@WashULaw

From the civil rights movement through the Obama administration, each successive redistricting cycle involved ever-greater regulation of the mapmaking process. But in the past decade, the Supreme Court has re-written the ground rules for redistricting. For the first time in fifty years, Southern States will redistrict free of the preclearance process that long protected minorities from having their political power diminished. Political parties can now openly engage in egregious partisan gerrymandering.

The Court has withdrawn from the political thicket on every front except race. In so doing, the Court has engaged in decision-making that is both activist and restrained, but …

Assessing Affirmative Action's Diversity Rationale, Kyle Rozema, Adam Chilton, Justin Driver, Jonathan S. Masur

Scholarship@WashULaw

Ever since Justice Lewis Powell’s opinion in Regents of the University of California v. Bakke made diversity in higher education a constitutionally acceptable rationale for affirmative action programs, the diversity rationale has received vehement criticism from across the ideological spectrum. Critics on the right argue that diversity efforts lead to “less meritorious” applicants being selected. Critics on the left charge that diversity is mere “subterfuge.” On the diversity rationale’s legitimacy, then, there is precious little diversity of thought. In particular, prominent scholars and jurists have cast doubt on the diversity rationale’s empirical foundations, claiming that it rests on an implausible …

The Informed Jury, Daniel Epps, William Ortman

Scholarship@WashULaw

The right to a criminal jury trial is a constitutional disappointment. Cases almost never make it to a jury because of plea bargaining. In the few cases that do, the jury is relegated to a narrow factfinding role that denies it normative voice or the ability to serve as a meaningful check on excessive punishment.

One simple change could situate the jury where it belongs, at the center of the criminal process. The most important thing juries do in criminal cases is authorize state punishment. But today, when a jury returns a guilty verdict, it authorizes punishment without any idea …

Covid-19, Churches, And Culture Wars, John D. Inazu

Scholarship@WashULaw

The First Amendment’s Free Exercise Clause often requires courts to balance competing interests of the highest order. On the one hand, the Constitution recognizes the free exercise of religion as a fundamental right. On the other hand, the government sometimes has compelling reasons for limiting free exercise, especially in situations involving dangers to health and safety. The shutdown and social distancing orders issued during the early phases of the COVID-19 pandemic not only restricted free exercise but also limited what many people consider to be the core of that exercise: religious worship. But the orders did so in order to …

Changemakers: Master Of Studies In Law: 'Law Isn't A Foreign Language Anymore', Roger Williams University School O Law

Life of the Law School (1993- )

No abstract provided.

Centering Noncitizens’ Free Speech, Gregory P. Magarian

Scholarship@WashULaw

First Amendment law pays little attention to noncitizens’ free speech interests. Perhaps noncitizens simply enjoy the same First Amendment rights as citizens. However, ambivalent and sometimes hostile Supreme Court precedents create serious cause for concern. This Essay advocates moving noncitizens’ free speech from the far periphery to the center of First Amendment law. Professor Magarian posits that noncitizens epitomize a condition of speech inequality, in which social conditions and legal doctrines combine to create distinctive, unwarranted barriers to full participation in public discourse. First Amendment law can ameliorate speech inequality by promoting an ethos of free speech obligation, amplifying the …

Understanding American Privacy, Neil M. Richards, Andrew B. Serwin, Tyler Blake

Scholarship@WashULaw

This Article is an explanation of some of the key features of American privacy law for a general audience. In particular, it tries to explain American privacy law against the critique that because the US currently lacks a European-style privacy law, the United States lacks much in the way of privacy law. We argue that the lack of a European-style data protection law in the United States is not the end of the analysis. This article therefore offers a basic roadmap to American privacy law for the uninitiated. In order to understand American privacy, we believe that it is important …

Fifth-Dimensional Warfare And National Security In Canada: Situating Microdeviation Theory Within C-59: An Act Respecting National Security Matters, Hayden Slight

Theses and Dissertations (Comprehensive)

In an era of rapid technological change, the growing threat environment in the cyber dimension will continue to influence how a sovereign nation contends with attacks that can occur from any corner of the world. The growing adaptation and expansion of technology belonging to the Internet of Things (IoT) and the increasing prevalence of social media (Facebook, Twitter) has also influenced the spreading of attack surfaces that can become victim to exploitation by motivated parties including foreign states and terrorist groups. Against this backdrop, Canada’s own efforts to modernize and reinforce its own national security agencies resulted in the developing …

Federalism And The Limits Of Subnational Political Heterogeneity, James A. Gardner

Journal Articles

With an epidemic of democratic backsliding now afflicting many of the world’s democracies, including the United States, some scholars have suggested that federalism might serve as a useful defense for liberal democracy by impeding the ability of an authoritarian central government to stamp it out at the subnational level. In this Essay, I dispute that contention. An examination of both federal theory on one hand and the behavior and tactics of central control employed by ancient and early modern empires on the other leads to the conclusion that the protective value of federalism against the effects of national authoritarianism is …

Dipak Patel V. The Minister Of Finance And The Attorney General Ccz 5 Of 2020 [2021], Chanda Chungu

SAIPAR Case Review

The Constitutional Court judgment of Dipak Patel v. The Minister of Finance and the Attorney General dealt with an application by Dipak Patel who sought, inter alia, a declaration that the failure by the Minister of Finance to bring all public debt that was contracted by the Executive to the National Assembly for approval was contrary to the Constitution. This case review seeks to provide a lucid and clear analysis of the Constitutional Court judgment, discussing the soundness of the court’s reasoning and approach to the issue of how public debt should be contracted.

Dipak Patel V. The Attorney General [2020] Ccz 005, Josiah Kalala

SAIPAR Case Review

In 2016, the Constitution of Zambia was amended, introducing a provision that required the National Assembly to approve all debt before it was contracted. The Constitutional amendment also introduced a requirement that legislation relating to the contraction and guaranteeing of debt should provide the category, nature and other terms and conditions of a loan, grant or guarantee that will require approval by the National Assembly before the loan, grant or guarantee is executed. Unfortunately, since the constitutional amendment in 2016, the government of Zambia acquired numerous loans without the approval of the National Assembly of Zambia. The Petitioner, a former …

Maternity Rights: A Comparative View Of Mexico And The United States, Roberto Rosas

The Scholar: St. Mary's Law Review on Race and Social Justice

Women play a large role in the workplace and require additional protection during pregnancy, childbirth, and while raising children. This article compares how Mexico and the United States have approached the issue of maternity rights and benefits. First, Mexico provides eighty-four days of paid leave to mothers, while the United States provides unpaid leave for up to twelve weeks. Second, Mexico allows two thirty-minute breaks a day for breastfeeding, while the United States allows a reasonable amount of time per day to breastfeed. Third, Mexico provides childcare to most federal employees, while the United States provides daycares to a small …

Linguistic Estoppel: A Custodial Interrogation Subject’S Reliance On Traditional Language Customs When Facing Unknown Expectations For Legally Efficacious Speech, Taylor J. Smith

BYU Law Review

For various reasons, speakers often communicate indirectly, hiding their words’ true meaning beneath an apparent surface meaning. For example, a woman trying to brush off her co-worker’s date invitation might respond, “I have to prepare for a presentation tomorrow.” While the words’ surface meaning doesn’t relate to the date invitation, the hearer usually understands the underlying message—that is to say, the words’ function differs from their form. However, because the law’s language ideology requires directness and surface-level meaning, lay-speaking interrogation subjects often have difficulty effectively invoking their Miranda rights. Because the legal system’s search for determinacy often results in reliance …

Children Of The Government: Affording A Higher Education A Review Of The State Of Pennsylvania’S Recently Implemented Law That Grants Children Who “Age Out” Of The Foster Care Tuition And Fee Waivers At Every University In The State, Erin K. Cooper

Helms School of Government Undergraduate Law Review

No abstract provided.