Constitutional Law Commons^™

Dole’S Future: A Strategic Analysis, Neil S. Siegel

Faculty Scholarship

As the U.S. Supreme Court imposes federalism-based limits on congressional power under the Commerce Clause and Section Five of the Fourteenth Amendment, Congress may be tempted to turn to the conditional spending power in order to achieve goals that it may not accomplish directly. In this article, I address whether a danger exists, as some suggest, that such use of the Spending Clause would render the Court more likely to cut back on its scope, narrowing or overruling South Dakota v. Dole, 483 U.S. 203 (1987). Using doctrinal analysis and game theory, I conclude that Congress should proceed with …

Independent Of The Constitution?--Issues Raised By An Independent Federal Legislative Ethics Commission With Independent Enforcement Authority, Paul Taylor

University of Richmond Law Review

No abstract provided.

Constitutional Law And Values - Version '08 (Not Necessarily And Upgrade), Nadine Strossen

Articles & Chapters

No abstract provided.

Overcoming Lochner In The Twenty-First Century: Taking Both Rights And Popular Sovereignty Seriously As We Seek To Secure Equal Citizenship And Promote The Public Good, Thomas B. Mcaffee

University of Richmond Law Review

Professor McAffee reviews substantive due process as the textual basis for modern fundamental rights constitutional decision-making. He contends that we should avoid both the undue literalism that rejects the idea of implied rights, as well as the attempt to substitute someone's preferred moral vision for the limits, and compromises, that are implicit in and intended by the Constitution's text. He argues, moreover, that we can largely harmonizethe variousgoals of our constitutionalsystem by taking rights se- riously and by understanding that securing rights does not ex-haustthe Constitution'spurposes.

Parker V. District Of Columbia: Putting The "I'S" In Milita, Katharine E. Kohm

University of Richmond Law Review

No abstract provided.

Supreme Court Reversals: Exploring The Seventh Court, Stephen Wermiel

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Cooper's Quiet Demise (A Short Response To Professor Strauss), Frederic M. Bloom

Publications

No abstract provided.

The Measure Of Government Speech: Identifying Expression's Source, Helen Norton

Publications

States and other governmental bodies increasingly invoke the government speech defense to First Amendment challenges by private parties who seek to alter or join what the government contends is its own expression. These disputes involve competing claims to the same speech: a private party maintains that a certain means of expression reflects (or should be allowed to reflect) her own views, while a public entity claims that same speech as its own, along with the ability to control its content.

In suggesting a framework for approaching these problems, this Article starts by examining the theoretical and practical justifications for insulating …

Government Workers And Government Speech, Helen Norton

Publications

This essay, to be published in the First Amendment Law Review's forthcoming symposium issue on Public Citizens, Public Servants: Free Speech in the Post-Garcetti Workplace, critiques the Supreme Court's decision in Garcetti v. Ceballos as reflecting a distorted understanding of government speech that overstates government's own expressive interests while undermining the public's interest in transparent government.

In Garcetti, the Court held that the First Amendment does not protect public employees' speech made "pursuant to their official duties," concluding that a government employer should remain free to exercise "employer control over what the employer itself has commissioned or created." …

Substantive Due Process After Gonzales V. Carhart, Steven G. Calabresi

Michigan Law Review

This Article begins in Part I with a doctrinal evaluation of the status of Washington v. Glucksberg ten years after that decision was handed down. Discussion begins with consideration of the Roberts Court's recent decision in Gonzales v. Carhart and then turns to the subject of Justice Kennedy's views in particular on substantive due process. In Part II, the Article goes on to consider whether the Glucksberg test for substantive due process decision making is correct in light of the original meaning of the Fourteenth Amendment. The Article concludes in Parts II and III that Glucksberg is right to confine …

Due Process Traditionalism, Cass R. Sunstein

Michigan Law Review

In important cases, the Supreme Court has limited the scope of "substantive due process" by reference to tradition, but it has yet to explain why it has done so. Due process traditionalism might be defended in several distinctive ways. The most ambitious defense draws on a set of ideas associated with Edmund Burke and Friedrich Hayek, who suggested that traditions have special credentials by virtue of their acceptance by many minds. But this defense runs into three problems. Those who have participated in a tradition may not have accepted any relevant proposition; they might suffer from a systematic bias; and …

Judicial Compensation And The Definition Of Judicial Power In The Early Republic, James E. Pfander

Michigan Law Review

Article III's provision for the compensation of federal judges has been much celebrated for the no-diminution provision that forecloses judicial pay cuts. But other features of Article Ill's compensation provision have largely escaped notice. In particular, little attention has been paid to the framers' apparent expectation that Congress would compensate federal judges with salaries alone, payable from the treasury at stated times. Article III's presumption in favor of salary-based compensation may rule out fee-based compensation, which was a common form of judicial compensation in England and the colonies but had grown controversial by the time of the framing. Among other …

Can Glucksberg Survive Lawrence? Another Look At The End Of Life And Personal Autonomy, Yale Kamisar

Articles

In Washington v. Glucksberg, the Court declined to find a right to physician-assisted suicide ("PAS") in the Constitution. Not a single Justice dissented. One would expect such a ruling to be quite secure. But Lawrence v. Texas, holding that a state cannot make consensual homosexual conduct a crime, is not easy to reconcile with Glucksberg. Lawrence certainly takes a much more expansive view of substantive due process than did Glucksberg. It is conceivable that the five Justices who made up the Lawrence majority-all of whom still sit on the Court-might overrule Glucksberg. For various reasons, …

When Should Original Meanings Matter?, Richard A. Primus

Articles

Constitutional theory lacks an account of when each of the familiar sources of authority-text, original meaning, precedent, and so on-should be given weight. The dominant tendency is to regard all sources as potentially applicable in every case. In contrast, this Article proposes that each source of authority is pertinent in some categories of cases but not in others, much as a physical tool is appropriate for some but not all kinds of household tasks. The Article then applies this approach to identify the categories of cases in which original meaning is, or is not, a valid factor in constitutional decisionmaking.

Is A Forensic Laboratory Report Identifying A Substance As A Narcotic 'Testimonial'?, Richard D. Friedman

Articles

Is a state forensic analyst's laboratory report, prepared for use in a criminal proceeding and identifying a substance as cocaine, "testimonial" evidence and so subject to the demands of the Confrontation Clause as set forth in Crawford v. Washington, 541 U.S. 36 (2004)?

Does An Accused Forfeit The Confrontation Right By Murdering A Witness, Absent A Purpose To Render Her Unavailable?, Richard D. Friedman

Articles

If an accused murdered a witness, should he be deemed to have forfeited the right under the Sixth Amendment "to be confronted with" the witness, absent proof that the accused committed the murder for the purpose of rendering her unavailable as a witness?

Requiem For Section 1983, Paul D. Reingold

Articles

Section 1983 no longer serves as a remedial statute for the people most in need of its protection. Those who have suffered a violation of their civil rights at the hands of state authorities, but who cannot afford a lawyer because they have only modest damages or seek only equitable remedies, are foreclosed from relief because lawyers shun their cases. Today civil rights plaintiffs are treated the same as ordinary tort plaintiffs by the private bar: without high damages, civil rights plaintiffs are denied access to the courts because no one will represent them. Congress understood that civil rights laws …

Frozen In Time: The State Action Doctrine's Application To Amateur Sports, Dionne L. Koller

All Faculty Scholarship

The state action doctrine has as its central goal the preservation of liberty by limiting the intrusion of the government into the "private" sphere. It achieves this by applying the Constitution only to government, and not private, action. Traditionally, amateur sports regulators such as the National Collegiate Athletic Association (NCAA) and the United States Olympic Committee (USOC) have been viewed by courts as private. As a result, this article explains that courts generally give great deference to amateur sports organizations such as the NCAA and USOC to regulate sports with little judicial interference, including in the area of constitutional litigation. …

The Possibility Of A Secular First Amendment, Chad Flanders

All Faculty Scholarship

In a series of articles and now in their new book, Religious Freedom and the Constitution, Lawrence Sager and Christopher Eisgruber (E&S) defend an interpretation of the religion clauses of the First Amendment which, they write, "denies that religion is a constitutional anomaly, a category of human experience that demands special benefits and/or necessitates special restrictions." While not a book review in the traditional sense, my essay takes E&S's defense of a secular First Amendment as a starting point and asks, how did we get to the point where an interpretation of the First Amendment which denies that religion is …

Second Class Delivery: The Elimination Of Birthright Citizenship As A Repeal Of "The Pursuit Of Happiness", Sara C. Barnhart

Georgia Law Review

In recent years, immigration has been at the forefront of political debate in the United States. In response to concerns over undocumented immigrants, some members of Congress have proposed the elimination of birthright citizenship. Eliminating birthright citizenship means that citizenship at birth would be based on the citizenship of one's parents rather than one's birth in U.S. territory. This Note demonstrates the historical nature of this U.S. immigration controversy by tracing similar movements throughout history. It documents the roots of the common law doctrine of birthright citizenship, followed by a discussion of the protection of citizenship status the Fourteenth Amendment's …

Is There A Dormant Extraterritoriality Principle?: Commerce Clause Limits On State Antitrust Laws, Michael J. Ruttinger

Michigan Law Review

State antitrust laws ordinarily supplement federal law by providing a cause of action for anticompetitive activity that occurs in the state. Some states, however, have construed their antitrust regimes to reach conduct that occurs outside the state's boundaries. Such regulation raises significant federalism and Commerce Clause concerns by creating possible extraterritorial liability for conduct with virtually no in-state effect. This Note examines two Commerce Clause standards that may limit the degree to which state antitrust laws may exercise extraterritorial force-the "dormant" or "negative" Commerce Clause and the so-called "Extraterritorial Principle." Unfortunately, the dormant Commerce Clause test, as articulated in Pike …

The Common Law Genius Of The Warren Court, David A. Strauss

William & Mary Law Review

The Warren Court's most important decisions-on school segregation, reapportionment, free speech, and criminal procedure are firmly entrenched in the law. But the idea persists, even among those who are sympathetic to the results that the Warren Court reached, that what the Warren Court was doing was somehow not really law: that the Warren Court "made it up," and that the important Warren Court decisions cannot be justified by reference to conventional legal materials. It is true that the Warren Court's most important decisions cannot be easily justified on the basis of the text of the Constitution or the original understandings. …

Umpires At Bat: On Integration And Legitimation, Neil S. Siegel

Faculty Scholarship

During his confirmation hearings. Chief Justice Roberts captured the public's imagination when he offered an interpretation of the role that judges play in our society when interpreting the Constitution. Judges and Justices are servants of the law, not the other way around, he said. Judges are like umpires. Umpires don't make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ball game to see an umpire.

In this inquiry, I identify some tensions between the …

Section 4: Individual Rights, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

A Dream Deferred, Lewis M. Steel '63

Articles and Writings

No abstract provided.

Furman'S Mythical Mandate, Scott W. Howe

University of Michigan Journal of Law Reform

This Article argues for the rescue and reform of Supreme Court doctrine regulating capital sentencing trials under the Eighth Amendment. Many legal commentators, both liberal and conservative, including several members of the Supreme Court, have concluded that the Court's regulation of capital sentencing trials is a disaster. The repeated criticisms rest on a commonly accepted view about a principal goal of capital sentencing regulation. The prevailing account, fueled by the rhetoric of the Justices, stems from the notion that Furman v. Georgia, 408 U.S. 208 (1972), revealed a mandate of consistency in the use of the death penalty that …

Looking Backward: Richard Epstein Ponders The "Progressive" Peril, Michael Allan Wolf

Michigan Law Review

In the 1888 novel Looking Backward, Edward Bellamy dreamed up a twentieth century America that was a socialist utopia, a vision invoked four years later by the conservative Justice David J. Brewer as a warning against government regulation. In How Progressives Rewrote the Constitution, Richard Epstein, looking back at the twentieth century through an interpretive lens much more similar to Brewer's than Bellamy's, sees and bemoans the growth of a dominant big government of which the novelist could only dream. Epstein pulls no punches in his attack on those he deems responsible for the shift in the American …

Ordinary Powers In Extraordinary Times: Common Sense In Times Of Crisis, Gary S. Lawson

Faculty Scholarship

The U.S. Constitution was written, debated, ratified, and implemented in the shadow of crisis. The country was birthed in war. In the aftermath of ratification, opponents of the Constitution could have precipitated a civil war that would have jeopardized the survival of the fledgling national government. I Throughout the founding era, any number of European powers were perceived to pose a serious threat of invasion. 2 Well into the 1800s, especially in certain northeastern states, substantial homegrown support for realignment with England persisted; the possibility of an internal rebellion in those areas was quite real.3 Individuals interested more in power …

After 150 Years, Worst Supreme Court Decision Ever Continues To Haunt, F. Michael Higginbotham

All Faculty Scholarship

In 1857, the Supreme Court rendered a decision in Dred Scott v. Sandford, declaring that it had no jurisdiction to hear Dred Scott's claim to freedom because he was black and, therefore, not a citizen of the United States. This article argues that not only was the decision morally reprehensible, it was also based on an erroneous interpretation of the Constitution.

Silenced Citizens: The Post-Garcetti Landscape For Public Sector Employees Working In National Security, Jamie Sasser

University of Richmond Law Review

No abstract provided.