Constitutional Law Commons^™

Conditional Spending After Nfib V. Sebelius: The Example Of Federal Education Law, Eloise Pasachoff

Georgetown Law Faculty Publications and Other Works

In NFIB v. Sebelius, the Supreme Court’s recent case addressing the constitutionality of the Affordable Care Act, the Court concluded that the expansion of Medicaid in that Act was unconstitutionally coercive and therefore exceeded the scope of Congress’s authority under the Spending Clause. This was the first time that the Court treated coercion as an issue of more than mere theoretical possibility under the Spending Clause. In the wake of the Court’s decision, commentators have expressed either the concern or the hope that NFIB’s coercion analysis may lead to the undoing of much of the federal regulatory state, …

Afterword: The Libertarian Middle Way, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Libertarianism is sometimes portrayed as radical and even extreme. In this Afterword to a symposium on "Libertarianism and the Law" in the Chapman Law Review, I explain why, though it may be radical, libertarianism is far from extreme in comparison with its principal alternatives: the social justice of the Left or legal moralism of the Right. Social justice posits that everyone should get a certain amount of stuff; legal moralism posits that everyone should act in a certain way. But because there is no consensus about how much stuff each person should have or how exactly everyone should act, …

Communicative Content And Legal Content, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

This essay investigates a familiar set of questions about the relationship between legal texts (e.g., constitutions, statutes, opinions, orders, and contracts) and the content of the law (e.g., norms, rules, standards, doctrines, and mandates). Is the original meaning of the constitutional text binding on the Supreme Court when it develops doctrines of constitutional law? Should statutes be given their plain meaning or should judges devise statutory constructions that depart from the text to serve a purpose? What role should default rules play in the interpretation and construction of contracts? This essay makes two moves that can help lawyers and legal …

Structural Overdelegation In Criminal Procedure, Anthony O'Rourke

Journal Articles

In function, if not in form, criminal procedure is a type of delegation. It requires courts to select constitutional objectives, and to decide how much discretionary authority to allocate to law enforcement officials in order to implement those objectives. By recognizing this process for what it is, this Article identifies a previously unseen phenomenon that inheres in the structure of criminal procedure decision-making.

Criminal procedure’s decision-making structure, this Article argues, pressures the Supreme Court to delegate more discretionary authority to law enforcement officials than the Court’s constitutional objectives can justify. By definition, this systematic “overdelegation” does not result from the …

The Freedom Of The Church (New Revised Standard Version), John D. Inazu

Scholarship@WashULaw

Significant discussion about the “freedom of church” has recently emerged at the intersection of law and religion scholarship and political theology. That discussion gained additional traction with the Supreme Court’s ruling in Hosanna-Tabor v. E.E.O.C., which recognized the First Amendment’s “special solicitude” for religious organizations. But the freedom of the church is at its core a theological concept, and its potential integration into our constitutional discourse requires a process of translation. The efficacy of any background political concept as legal doctrine will ultimately stand or fall on something akin to what Frederick Schauer has called “constitutional salience.”

The existing debate …

Virtual Assembly, John D. Inazu

Scholarship@WashULaw

This Article provides one of the first scholarly considerations of the constitutional boundaries for online groups. It explores both why and how we should protect these groups by asking two related questions. The first question is theoretical: do online groups implicate the kinds of values that warrant elevated constitutional protection. The second question is doctrinal: what is the best framework for providing constitutional protection to these groups. The Article argues that we should protect online groups because they advance important First Amendment values and because the line between our offline and our online groups is collapsing. Turning to the doctrinal …

Originalism And The Unwritten Constitution, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

In his book, America’s Unwritten Constitution, Akhil Reed Amar contends that to properly engage the written Constitution, scholars and laymen alike must look to extratextual sources: among them America’s founding documents, institutional practices, and ethos, all of which constitute Amar’s “unwritten Constitution.” In this article, the author argues that contemporary originalist constitutional theory is consistent with reliance on extraconstitutional sources in certain circumstances. He establishes a framework for revaluating the use of extratextual sources. That framework categorizes extratextual sources and explains their relevance to constitutional interpretation (the meaning of the text) and constitutional construction (elaboration of constitutional doctrine and …

Originalism And Constitutional Construction, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

Constitutional interpretation is the activity that discovers the communicative content or linguistic meaning of the constitutional text. Constitutional construction is the activity that determines the legal effect given the text, including doctrines of constitutional law and decisions of constitutional cases or issues by judges and other officials. The interpretation-construction distinction, frequently invoked by contemporary constitutional theorists and rooted in American legal theory in the nineteenth and twentieth centuries, marks the difference between these two activities.

This article advances two central claims about constitutional construction. First, constitutional construction is ubiquitous in constitutional practice. The central warrant for this claim is conceptual: …

Reconciling Positivism And Realism: Kelsen And Habermas On Democracy And Human Rights, David Ingram

Philosophy: Faculty Publications and Other Works

It is well known that Hans Kelsen and Jürgen Habermas invoke realist arguments drawn from social science in defending an international, democratic human rights regime against Carl Schmitt’s attack on the rule of law. However, despite embracing the realist spirit of Kelsen’s legal positivism, Habermas criticizes Kelsen for neglecting to connect the rule of law with a concept of procedural justice (Part I). I argue, to the contrary (Part II), that Kelsen does connect these terms, albeit in a manner that may be best described as functional, rather than conceptual. Indeed, whereas Habermas tends to emphasize a conceptual connection between …

Slaves To Contradictions: 13 Myths That Sustained Slavery, Wilson Huhn

Akron Law Faculty Publications

People have a fundamental need to think of themselves as “good people.” To achieve this we tell each other stories – we create myths – about ourselves and our society. These myths may be true or they may be false. The more discordant a myth is with reality, the more difficult it is to convince people to embrace it. In such cases to sustain the illusion of truth it may be necessary to develop an entire mythology – an integrated web of mutually supporting stories. This paper explores the system of myths that sustained the institution of slavery in the …

Arizona’S Senate Bill 1070: A Case Study On State-Sponsored Immigration Policy, Ryan Murphy

Master's Theses

This study assesses the origins of Arizona’s state-sponsored immigration policy. It attempts to identify the social dynamics within Arizona that contributed to the overwhelming public support for SB 1070. Since it has been two years after the law was passed, this analysis determines what impact the law has had thus far within the state. Finally, it postulates the future of Arizona’s immigration policy.

The Structural Constitutional Principle Of Republican Legitimacy, Mark D. Rosen

William & Mary Law Review

Democracy does not spontaneously occur by citizens gathering to choose laws. Instead, representative democracy takes place within an extensive legal framework that determines such matters as who gets to vote, how campaigns are conducted, and what conditions must be met for representatives to make valid law. Many of the “rules of the road” that operationalize republicanism have been subject to constitutional challenges in recent decades. For example, lawsuits have been brought against partisan gerrymandering—which is partly responsible for the fact that most congressional districts are no longer party competitive, but instead are either safely Republican or safely Democratic—and against onerous …

Shall The Twain Never Meet? Competing Narratives And Discourses Of The Rule Of Law In Singapore, Jack Tsen-Ta Lee

Research Collection Yong Pung How School Of Law

This article aims to assess the role played by the rule of law in discourse by critics of the Singapore Government’s policies and in the Government’s responses to such criticisms. It argues that in the past the two narratives clashed over conceptions of the rule of law, but there is now evidence of convergence of thinking as regards the need to protect human rights, though not necessarily as to how the balance between rights and other public interests should be struck. The article also examines why the rule of law must be regarded as a constitutional doctrine in Singapore, the …

The Dual-Faceted Federalism Framework And The Derivative Constitutional Status Of Local Governments, Michael W. Cannon

BYU Law Review

No abstract provided.

The Power To Block The Affordable Care Act: What Are The Limits?, John D. Kraemer, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Though Supreme Court upheld most parts of the Affordable Care Act (ACA), Congress’ goals in enacting it could still be frustrated by non-implementation. During his campaign for president, Governor Romney promised “to issue Obamacare waivers to all fifty states.” While such blanket waivers would likely violate the Constitution’s Take Care Clause, the ACA does permit other waivers. To be lawful, however, they must meet certain requirements designed to enhance access and lower cost. A president who opposes the ACA might be able to limit its implementation by refusing to issue premium subsidies in federally operated insurance exchanges, and this might …

Foreword: Academic Influence On The Court, Neal K. Katyal

Georgetown Law Faculty Publications and Other Works

The months leading up to the Supreme Court’s blockbuster decision on the Affordable Care Act (ACA) were characterized by a prodigious amount of media coverage that purported to analyze how the legal challenge to Obamacare went mainstream. The nation’s major newspapers each had a prominent story describing how conservative academics, led by Professor Randy Barnett, had a long-term strategy to make the case appear credible. In the first weeks after the ACA’s passage, the storyline went, the lawsuit’s prospects of success were thought to be virtually nil. Professor (and former Solicitor General) Charles Fried stated that he would “eat a …

Proportionality In Interpreting Constitutions: A Comparison Between Canada, The United Kingdom And Singapore And Its Implications For Vietnam, Jack Tsen-Ta Lee

Research Collection Yong Pung How School Of Law

Few rights that are guaranteed by constitutions and bills of rights are expressed to be absolute. In many jurisdictions, the legislature is permitted to impose restrictions on rights for specified reasons and under particular conditions. However, constitutional or bill of rights text often do not expressly indicate how the courts should determine that applicants’ rights have been legitimately restricted. To this end, courts in jurisdictions such as Canada and the United Kingdom have adopted the European doctrine of proportionality. Essentially, this requires them to balance opposing types of public interests – the interest sought to be protected by the rights …

A Bakerian Response To Weinstein's Free Speech Theory, Anne Marie Lofaso

West Virginia Law Review

No abstract provided.

Justice Roberts’ America, Robin West

Georgetown Law Faculty Publications and Other Works

Less than a week after the Roberts Court issued its decision in National Federation of Independent Business v Sebelius, Jeffrey Toobin, writing in The New Yorker, compared the first part of Chief Justice John Roberts's opinion, in which he found that the Commerce Clause did not authorize Congress to enact the "individual mandate" section of the Affordable Care Act (ACA) that requires all individuals to buy health insurance, with an Ayn Rand screed, noting that the pivotal sections of the argument were long on libertarian rhetoric but short on citations of authority. Roberts held (although "held" might be …

Racial Disparities In Sentencing In The U.S. And Georgia, Kamal Rattray, Nicole Lee

Georgia Journal of Public Policy

Incarceration represents the ultimate use of coercive power, and in the state of Georgia, that power is being disproportionately levied upon people of color, particularly African Americans.1 According to 2011 statistics from the Georgia Department of Corrections, the total prison population statewide was approximately 53,341 inmates. The majority of that number were Blacks (33,069 inmates), followed by Whites (17,752 inmates), Hispanics (2,306 inmates) and other ethnic groups.

Tying The Knot: Determining The Legality Of Same-Sex Marriage And The Courts’ Responsibilities In Defining The Right, Eva Cerreta

Honors Scholar Theses

Ambiguous terms and phrases in the United States Bill of Rights have caused a great deal of controversy throughout United States history over what rights truly exist and which branch of government should be responsible for determining those rights. These questions are currently being debated in states throughout the country concerning the right to same-sex marriage. This thesis answers these questions of legality and responsibility concerning the right to same-sex marriage. The thesis uses case law of the doctrinal development of the Equal Protection Clause and the right to privacy to suggest that the Equal Protection Clause provides the soundest …

Deciphering A Duality: Understanding Conflicting Standards In Sex & Violence Censorship In U.S. Obscenity Law, Rushabh P. Bhakta

Political Science Honors Projects

This research examines the division in US obscenity law that enables strict sex censorship while overlooking violence. By investigating the social and legal development of obscenity in US culture, I argue that the contemporary duality in obscenity censorship standards arose from a family of forces consisting of faith, economy, and identity in early American history. While sexuality ingrained itself in American culture as a commodity in need of regulation, violence was decentralized from the state and proliferated. This phenomenon led to a prioritization of suppressing sexual speech over violent speech. This paper traces the emergence this duality and its source.

Jordan’S Political Public Sphere: Understanding The Youth’S Awareness And Perceptions Of The Constitutional Reforms In The Post-Arab Spring Era, Krista Vendetti

Independent Study Project (ISP) Collection

This study evaluates Jordanian youth’s awareness and perceptions of the constitutional amendments of 2011 and explores the youth’s main sources of political news. I hypothesized that a majority of young Jordanians are largely uninformed about the amendments and expected that the main source of news for most young Jordanians were official media sources. My research data consists of survey responses, given by 65 students from the University of Jordan, as well as five interviews with young Jordanians. My findings proved that the Jordanian youth has a low level of awareness about the recent political reforms, and the main news sources …

Theorizing American Freedom (Reviewing Aziz Rana, The Two Faces Of American Freedom (2010)), Anthony O'Rourke

Book Reviews

This is a review essay of The Two Faces of American Freedom, by Aziz Rana. The book presents a new and provocative account of the relationship between ideas of freedom and the constitutional structure of American power. Through the nineteenth century, Rana argues, America’s constitutional structure was shaped by a racially exclusionary, yet economically robust, concept that he calls “settler freedom.” Drawing on the burgeoning interdisciplinary field of settler colonial studies, as well as on the vast historical literature on civic republicanism, Rana contends that the concept of settler freedom necessitated a constitutional framework that enabled rapid territorial expansion and …

The Effects Of Tribal Governments On Reservation Poverty Rates, Heather Raisch

Political Science Theses and Capstones

Poverty rates on Indian reservations are far higher than the national average. Since Tribal Governments have at least some control over these reservations, to what extent are they to blame for these higher than average poverty rates? I look at each reservation and their type of government, constitution, policies and demographics to analyze the causes of their poverty as it relates to tribal government. There are many other pieces of research that are similar to this, but none looking specifically at the overall effects the government has on its community. My hypothesis is that communities with higher poverty rates tend …

The Chill Of A Wintry Light? Borough Of Duryea V. Guarnieri And The Right Of Petition In Public Employment, William A. Herbert

Publications and Research

This article analyzes the Supreme Court’s decision in Borough of Duryea v. Guarnieri, which held that in order for a petition, grievance or litigation by a public employee to be protected against retaliation under the Petition Clause of the First Amendment of the United States Constitution it must satisfy the public concern test applicable in retaliation cases alleging a violation of the Speech Clause. The decision was issued in the midst of a renewed contemporary debate over public sector collective bargaining and other statutory rights in public employment. The article analyzes the decision in the context of American public sector …

Open Secret: Why The Supreme Court Has Nothing To Fear From The Internet, Keith J. Bybee

Institute for the Study of the Judiciary, Politics, and the Media at Syracuse University

The United States Supreme Court has an uneasy relationship with openness: it complies with some calls for transparency, drags its feet in response to others, and sometimes simply refuses to go along. I argue that the Court’s position is understandable given that the internet age of fluid information and openness has often been heralded in terms that are antithetical to the Court’s operations. Even so, I also argue the Court actually has little to fear from greater transparency. The understanding of the Court with the greatest delegitimizing potential is the understanding that the justices render decisions on the basis of …

Facing The Fear: A Free Market Approach For Economic Expression, Nancy J. Whitmore

Scholarship and Professional Work - Communication

Commentators differ on whether a diminished constitutional status for profit-driven speech is consistent with free speech theory. Most recently, the Supreme Court of the United States in Citizens United v. Federal Election Commission largely embraced an unfettered marketplace approach for political speech financed by corporate treasuries. Given the harm a free market approach is said to have produced in the economic realm, is this approach useful for structuring the constitutional protection economic expression receives? This article discusses the placement of economic expression within First Amendment theory and contends that restrictions on economic speech should be aimed at combating deceptive economic …

A Decision Theory Of Statutory Interpretation: Legislative History By The Rules, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

We have a law of civil procedure, criminal procedure, and administrative procedure, but we have no law of legislative procedure. This failure has serious consequences in the field of statutory interpretation. Using simple rules garnered from Congress itself, this Article argues that those rules are capable of transforming the field of statutory interpretation. Addressing canonical cases in the field, from Holy Trinity to Bock Laundry, from Weber to Public Citizen, this article shows how cases studied by vast numbers of law students are made substantially more manageable, and in some cases quite simple, through knowledge of congressional procedure. …

Slavery In The United States: Persons Or Property?, Paul Finkelman

Faculty Scholarship

No abstract provided.