Constitutional Law Commons^™

Agora: Reflections On Zivotofsky V. Kerry Presidential Signing Statements And Dialogic Constitutionalism, Catherine Powell

Faculty Scholarship

When the Supreme Court held that the executive branch has exclusive authority to recognize foreign sovereigns in the Jerusalem passport case, Zivotojsky v. Kerry (Zivotojsky lI), Jack Goldsmith hailed the decision as a "vindication" of presidential signing statements and executive power. Indeed, in the context of the debate over the treatment of the terror suspects, the New York Times had called such signing statements the "constitutionally ludicrous" work of an overreaching, "imperial presidency." Others in this Symposium and elsewhere have covered what a "bonanza" Zivotojsi II is for foreign relations law, the competing visions of foreign relations at the case's …

Obergefell'S Conservatism: Reifying Familial Fronts, Clare Huntington

Fordham Law Review

I am delighted with the result in Obergefell v. Hodges, but I am unhappy with the Court’s reasoning. In lieu of a straightforward, and far more defensible, decision based purely on the Equal Protection Clause, Justice Kennedy’s reliance on the Due Process Clause is deeply problematic.

Race, Dignity, And The Right To Marry, Robin A. Lenhardt

Fordham Law Review

Justice Kennedy’s majority opinion in Obergefell v. Hodges asserts legal marriage’s capacity to afford same-sex couples a measure of “equal dignity” and belonging too long denied. In this Essay, I ask whether there is any reason to believe that marriage could do the same for African Americans. Could broader entrance into marriage, as some conservatives suggest, provide Blacks—gay and straight—a measure of belonging that has been frustratingly elusive, even as the nation prepares to celebrate the one hundred and fiftieth anniversary of the Thirteenth Amendment’s ratification?

Two Tests Unite To Resolve The Tension Between The First Amendment And The Right Of Publicity, Dora Georgescu

Fordham Law Review

    The right of publicity is an established legal doctrine that grants individuals the exclusive right to control the commercial use of their image. Though it has many important and laudable uses, one unfortunate consequence of the right of publicity is that it restricts artists’ abilities to portray real persons in their works. In so doing, the right of publicity directly conflicts with the First Amendment protections of an individual’s freedom of expression.

    While the U.S. Supreme Court addressed this tension in Zacchini v. Scripps-Howard Broadcasting Co., the Court did not create a clear standard for balancing the interests of …

Meta Rights, Charlotte Garden

Fordham Law Review

Are individuals entitled to notice of their constitutional rights or assistance in exercising those rights? In most contexts, the answer is no. Yet, there are some important exceptions, in which the U.S. Supreme Court has held that special circumstances call for notice and procedural protections designed to facilitate rights invocations. This Article refers to these entitlements as “meta rights”—rights that protect rights. The most famous of these is the Miranda warning, which notifies suspects of their Fifth Amendment rights to silence and an attorney. There are others as well—among them, the First Amendment right of individuals represented by public sector …

Government Endorsement: A Reply To Nelson Tebbe's Government Nonendorsement, Abner S. Greene

Faculty Scholarship

In this response to Nelson Tebbe’s Government Nonendorsement, Abner Greene continues to develop his “thick perfectionist” view of government speech, arguing that the state may use its speech powers to advance various views of the good, from left, center,

Constitutional Purpose And The Anti-Corruption Principle, Zephyr Teachout

Faculty Scholarship

What was the purpose of the American Constitution? What was it made to do by those who made it? This question — which might be at the center of constitutional theory — is not explicitly asked as often as one might think. Instead, it frequently takes a backseat to other questions about the appropriate mode of constitutional interpretation or the specific purposes of particular texts. And yet it is an important question. How did the Framers (and then the second Framers, the amenders) imagine their own purposes? What are legitimate ways to determine their purposes? Most importantly for the purposes …

Presidential Constitutionalism And Civil Rights, Joseph Landau

Faculty Scholarship

As the judicial and legislative branches have taken a more passive approach to civil rights enforcement, the President’s exercise of independent, extrajudicial constitutional judgment has become increasingly important. Modern U.S. presidents have advanced constitutional interpretations on matters of race, gender, HIV-status, self-incrimination, reproductive liberty, and gun rights, and President Obama has been especially active in promoting the rights of lesbian, gay, bisexual, and transgender (LGBT) persons — most famously by refusing to defend the Defense of Marriage Act (DOMA). Commentators have criticized the President’s refusal to defend DOMA from numerous perspectives but have not considered how the President’s DOMA policy …

Religion And Theistic Faith: On Koppelman, Leiter, Secular Purpose, And Accomodations, Abner S. Greene

Faculty Scholarship

What makes religion distinctive, and how does answering that question help us answer questions regarding religious freedom in a liberal democracy? In their books on religion in the United States under our Constitution, Andrew Koppelman (DefendingAmerican Religious Neutrality) and Brian Leiter (Why Tolerate Religion?) offer sharply different answers to this set of questions. This review essay first explores why we might treat religion distinctively, suggesting that in our constitutional order, it makes sense to focus on theism (or any roughly similar analogue) as the hallmark of religious belief and practice. Neither Koppelman nor Leiter focuses on this, in part because …

International Law And Institutions And The American Constitution In War And Peace, Thomas H. Lee

Faculty Scholarship

This Article describes how international law and institutions are not necessarily incompatible with U.S. sovereign interests today and how they were historically accepted as valid inputs to interpreting and implementing the Constitution during the founding and infancy of the United States and through the Civil War.

The Regulation Of Race In Science, Kimani Paul-Emile

Faculty Scholarship

The overwhelming majority of biological scientists agree that there is no such thing as race among modern humans. Yet, scientists regularly deploy race in their studies, and federal laws and regulations currently mandate the use of racial categories in biomedical research. Legal commentators have tried to make sense of this paradox primarily by looking to equal protection strict scrutiny analysis. However, the colorblind approach that attends this doctrine — which many regard as synonymous with invalidation — does not offer a particularly useful way to think about the use of race in research. It offers no way to address how …

The Great And Mighty Tax Law: How The Roberts Court Has Reduced Constitutional Scrutiny Of Taxes And Tax Expenditures, Linda Sugin

Faculty Scholarship

This article compares National Federation of Independent Business v. Sebelius – the Supreme Court’s decision upholding the individual mandate in Obamacare as a tax, with Arizona Christian Schools v. Winn – the Supreme Court’s decision denying standing to taxpayers with an Establishment Clause challenge to a state tax credit. It argues that these cases aggravate a growing tension between the economic and legal analyses of taxation by reducing the legal significance of economic analysis in constitutional cases. It suggests that Arizona Christian Schools was a truly radical decision because it conceptualized tax expenditures as private action immune from constitutional attack, …

What Is Constitutional Obligation?, Abner S. Greene

Faculty Scholarship

Mike Seidman’s book, On Constitutional Disobedience, offers an impressive challenge to constitutional fidelity. With much of it, my book Against Obligation is on all fours – we both share the view that our Constitution’s meaning should not be bound by past sources. Seidman seems to go further, though, and reject the bindingness of the Constitution as a text. What does it mean to ask whether the Constitution itself obligates? Most of the Constitution doesn’t set rules for citizens; rather, it establishes powers, and what we might consider conditional obligations, for officials. All government officials in the United States swear an …

The Right To Plea Bargain With Competent Counsel After Cooper And Frye: Is The Supreme Court Making The Ordinary Criminal Process Too Long, Too Expensive, And Unpredictable In Pursuit Of Perfect Justice, Bruce A. Green

Faculty Scholarship

In Lafler v. Cooper and Missouri v. Frye, the Supreme Court recently ruled in favor of criminal defendants who were deprived of a favorable plea offer because of their lawyers’ professional lapses. In dissent, Justice Scalia complained that “[t]he ordinary criminal process has become too long, too expensive, and unpredictable,” because of the Court’s criminal procedure jurisprudence; that plea bargaining is “the alternative in which...defendants have sought relief,” and that the two new decisions on the Sixth Amendment right to effective representation in plea bargaining would add to the burden on the criminal process. This essay examines several aspects of …

Gideon’S Amici, Why Do Prosecutors So Rarely Defend The Rights Of The Accused?, Bruce A. Green

Faculty Scholarship

In Gideon v. Wainwright, twenty-three state attorneys general, led by Walter F. Mondale and Edward McCormack, joined an amicus brief on the side of the criminal accused, urging the Supreme Court to recognize indigent defendants’ Sixth Amendment right to appointed counsel in felony cases. This was a unique occurrence. Although amicus filings by public entities have increased significantly since then, including in criminal cases, government lawyers rarely submit amicus briefs in the Supreme Court supporting criminal defendants’ procedural rights, and never en masse as in Gideon. The states’ public support for Gideon’s position points up the special nature of the …

Firearms Policy And The Black Community: An Assessment Of The Modern Orthodoxy, Nicholas J. Johnson

Faculty Scholarship

The heroes of the modern civil rights movement were more than just stoic victims of racist violence. Their history was one of defiance and fighting long before news cameras showed them attacked by dogs and fire hoses. When Fannie Lou Hamer revealed she kept a shotgun in every corner of her bedroom, she was channeling a century old practice. And when delta share cropper Hartman Turnbow, after a shootout with the Klan, said “I don’t figure I was being non-nonviolent, (yes non-nonviolent) I was just protecting my family”, he was invoking an evolved tradition that embraced self-defense and disdained political …

Chevron Meets Youngstown: National Security And The Administrative State, Joseph Landau

Faculty Scholarship

The past several years have witnessed a burst of scholarship at the intersection of national security and administrative law. Many supporters of this approach endorse a heightened, “super-strong” brand of Chevron deference to presidential decisionmaking during times of emergency. Believing that the Executive’s comparative advantage in expertise, access to information, and accountability warrant minimal judicial scrutiny, these Chevron-backers advance an Executive-centric view of national security powers. Other scholars, by contrast, dispute Chevron’s relevance to national security. These Chevron-detractors argue for an interventionist judiciary in national security matters. Both camps criticize the Supreme Court’s scaling of deference to the Executive after …

Federalism And The Eighth Amendment, Youngjae Lee

Faculty Scholarship

How many “cruel and unusual punishments” clauses are there? Michael Mannheimer, in his article, Cruel and Unusual Federal Punishments, argues that there are two—one for the federal government and one for state governments.1 Mannheimer contends that courts have been unduly neglecting the former and mistakenly applying the latter to the federal government without adequate reflection.2 Mannheimer further argues that the Eighth Amendment is primarily a device to promote state sovereignty and that we should accordingly read it as requiring that federal punishments be no more severe than state punishments for equivalent crimes.3 I cannot do justice in this brief Response …

Funding Port-Related Infrastructure And Development: The Current Debate And Proposed Reform, Christopher T. Cook

Fordham Urban Law Journal

Given the lack of consensus and certainty in how funding should best be generated to meet critical infrastructure and development needs, this Note proposes an amendment to the Shipping Act to provide port authorities with the express power to impose fees for the construction, operation, and maintenance of qualifying port-related infrastructure and development initiatives. The amendment would effectively spread the costs specific to qualifying initiatives over the useful life of the project. Part I discusses the relevant provisions and judicial standards associated with the Tonnage Clause and Shipping Act. Part II addresses the efforts by both Congress and port authorities …

Libya: A Multilateral Constitutional Moment?, Catherine Powell

Faculty Scholarship

The Libya intervention of 2011 marked the first time that the UN Security Council invoked the “responsibility to protect” principle (RtoP) to authorize use of force by UN member states. In this comment the author argues that the Security Council’s invocation of RtoP in the midst of the Libyan crisis significantly deepens the broader, ongoing transformation in the international law system’s approach to sovereignty and civilian protection. This transformation away from the traditional Westphalian notion of sovereignty has been unfolding for decades, but the Libyan case represents a further normative shift from sovereignty as a right to sovereignty as a …

Habeas Corpus, Protection, And Extraterritorial Constitutional Rights, Andrew Kent

Faculty Scholarship

This short essay is an exchange with Professor Steve Vladeck's about my Article entitled: Boumediene, Munaf, and the Supreme Court’s Misreading of the Insular Cases, 97 Iowa Law Review 101 (2011). My Article showed that the Supreme Court’s landmark ruling in Boumediene v. Bush relied on a demonstrably incorrect understanding of key precedents known as the Insular Cases, which arose from actions of the United States military and the new civil governments of the islands acquired by the United States at the turn of the twentieth century — Puerto Rico, the Philippines, Hawaii, and for a time Cuba. This reply …

Reclaiming The Promise Of The Judicial Branch: Toward A More Meaningful Standard Of Judicial Review As Applied To New York Eminent Domain Law, Paula Franzese

Fordham Urban Law Journal

This Article asserts that the New York model of eminent domain and judicial review must be reworked to provide a meaningful balance between private property rights and concerns for public good. Part I sets forth current doctrine and procedure which New York agencies must follow when exercising the power of eminent domain. Part II explores how blight has become a "standardless standard" in New York. Part III examines New York courts' reluctance to overturn agency decisions and the potential for abuse that this creates. Part IV examines other jurisdictions which have imposed stricter standards when examining public use. Part V …

Gallenthin V. Kaur: A Comparative Analysis Of How The New Jersey And New York Courts Approach Judicial Review Of The Exercise Of Eminent Domain For Redevelopment, Ronald K. Chen

Fordham Urban Law Journal

This Article explores two explanations for why New Jersey and New York take different approaches to judicial review of exercises of eminent domain. Part I examines the approach of both states and their differing procedures for review of administrative agency determinations. Part II discusses how each states' courts and legislatures define "blight." Part III examines how New York's approach leaves municipal officials and redevelopers free to use the more flexible concept of "underutilization" as a proxy for "blight."

Condemning The Decisions Of The Past: Eminent Domain And Democratic Accountability, Christopher Serkin

Fordham Urban Law Journal

This Essay argues that there is a seldom-recognized purpose to eminent domain: preserving the ability of elected representatives to respond to the will of the people. The author proposes that eminent domain allows government to depart from the policy choices of administrations which came before and is therefore a tool for acquiring "democratic legitimacy." He explores this theory by examining examples such as breaking up the adult use zones in Times Square and reclaiming New York's waterfront, which had been essentially cut off by highways.

Let There Be Blight: Blight Condemnations In New York After Goldstein And Kaur, Ilya Somin

Fordham Urban Law Journal

This Article analyzes the New York cases of Kaur v. New York State Urban Development Corp. and Goldstein v. New York State Urban Development Corp. and asserts that the New York Court of Appeals erred in allowing such an expansive definition of "blight" and defining pretextual takings too narrowly. Part I Describes the two cases. Part II explains the concept of blight condemnation and how it was used in the two cases. Part III discusses how the two cases treat the federal constitutional standard for pretextual takings. The Article concludes that eminent domain reform requires a narrower definition of "blight" …

Delegational Delusions: Why Judges Should Be Able To Delegate Reasonable Authority Over Stated Supervised Release Conditions, Eugenia Schraa

Fordham Urban Law Journal

This Note examines the constitutionality of allowing a probation officer the discretion to either impose or forego particular conditions of a supervised release, depending on the officer's assessment of the defendant's needs. Two federal Circuits allow probation officers to have such discretion; the majority have held that such arrangements violate Article III of the Constitution, which makes imposing a sentence an exclusively judicial task. In this Note, the author investigates the history of delegation of judicial function to non Article-III officers and examines the split in federal courts over this particular issue, ultimately advocating for the adoption of the so-called …

The Problem With Pretext, Lynn E. Blais

Fordham Urban Law Journal

This Article examines the problems with the Supreme Court's holding in Kelo v. City of New London that the concept of public use is expansive unless the government is asserting the public use as a "mere pretext" and the true purpose is private benefit. The author examines the level of scrutiny applied in such cases, the link between pretext and motive, and the tests applied to evaluate pretext challenges: the burden-shifting motives test, the sufficiency of the plan taste, and the benefits to the public test. The author concludes that pretext is an "unworkable mechanism" for evaluating public use cases.

Public Use In The Dirigiste Tradition: Private And Public Benefit In An Era Of Agglomeration, Steven J. Eagle

Fordham Urban Law Journal

Dirigisme is the "policy of state direction and control in economic and social matters. This Article examines dirigisme as it relates to state control of land use. It also analyzes the development of eminent domain law and the requirement that takings be for public use. The author argues that the New York Court of Appeals "subordinates constitutional protections for private property to centralized development," specifically examining the recent Goldstein and Kaur opinions. The Article also discusses the implications of condemnation for transfer for private redevelopment, including lack of transparency, secondary rent seeking, possibilities of corruption, and the inefficient use of …

Judicial Takings And State Action: Rereading Shelley After Stop The Beach Renourishment The Very Idea Of Judicial Takings, Nestor M. Davidson

Faculty Scholarship

When the Supreme Court recently dipped its toe into longstanding debates about judicial takings in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, the intimation that the Court might finally recognize the doctrine generated a wave of responses. Commentators concerned with the expansion of regulatory takings jurisprudence argued that it would be unwise to apply the Takings Clause to the judiciary; those inclined to defend a more vigorous application of the Clause, perhaps not surprisingly, saw a promising new avenue of vindication. It would be naive to argue that the Stop the Beach Renourishment plurality's logic could-or …

Boumediene, Munaf, And The Supreme Court's Misreading Of The Insular Cases , Andrew Kent

Faculty Scholarship

In 2008, the Supreme Court embraced both global constitutionalism - the view that the Constitution provides judicially enforceable rights to non-citizens outside the sovereign territory of the United States - and what I call human-rights universalism - the view that the Constitution protects military enemies during armed conflict. Boumediene v. Bush found a constitutional right to habeas corpus for non-citizens detained as enemy combatants at the Guantanamo Bay naval base in Cuba, while Munaf v. Geren - decided the same day as Boumediene and involving U.S. citizens detained in Iraq during the war there - hinted that the Due Process …