Constitutional Law Commons^™

Of Spies, Saboteurs, And Enemy Accomplices: History’S Lessons For The Constitutionality Of Wartime Military Tribunals, Martin S. Lederman

Georgetown Law Faculty Publications and Other Works

Congress has recently authorized military commissions to try enemies not only for violations of the international law of war, but also for domestic-law offenses, such as providing material support to terrorism and conspiring to commit law-of-war offenses. Moreover, President Trump has indicated support for further military trials, including trials against U.S. citizens. Such military tribunals lack the civilian jury and independent judge that Article III of the Constitution prescribes. The constitutionality of such an abrogation of Article III’s criminal trial guarantees has been debated during many of the nation’s wars without clear resolution, and the constitutional question is now at …

Rethinking Children's Advertising Policies For The Digital Age, Angela J. Campbell

Georgetown Law Faculty Publications and Other Works

This article describes major changes in how video content and advertising is delivered to consumers. Digital technologies such as broadband allow consumers to stream or download programming. Smart phones and tablets allow consumers to view screen content virtually anywhere at any time. Advertising has become personalized and integrated with other content.

Despite these major changes in the media markets, the framework for regulating advertising to children has not changed very much since the 1990s. This article argues that the existing regulatory framework must be reinvented to protect children in the digital age. It uses Google’s recently introduced YouTube Kids app …

Habeas As Forum Allocation: A New Synthesis, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

The scope of habeas relief for state prisoners, especially during the decades before the Supreme Court’s 1953 decision in Brown v. Allen, is a famously disputed question – one of recognized significance for contemporary debates about the proper scope of habeas review. This Essay provides a new answer. It argues that, until the enactment of AEDPA in 1996, state prisoners were always entitled to de novo review of the legal and mixed law/fact questions decided against them by the state courts. Until 1916, such review was provided by the Supreme Court; after 1953, such review was provided by the lower …

The President's Budget As A Source Of Agency Policy Control, Eloise Pasachoff

Georgetown Law Faculty Publications and Other Works

A large body of literature in administrative law discusses presidential control of executive agencies through centralized review of regulations in the Office of Information and Regulatory Affairs (OIRA), part of the White House’s Office of Management and Budget (OMB). Largely overlooked in this literature is how the President’s budget acts as a source of agency policy control—in particular, how the White House exercises control through OMB’s authority to prepare the budget, oversee agencies’ execution of the budget, and create and implement management initiatives through the budget process. This Article identifies seven levers associated with OMB’s work on budget preparation, budget …

Legal Formulations Of A Human Right To Information: Defining A Global Consensus, Kimberli Kelmor

Georgetown Law Faculty Publications and Other Works

There is a growing body of law across the globe that seeks to define a right to information. Any study of such laws quickly reveals a great diversity of definitions for both the type of information covered and the nature of the right. Access to various particular types of information is routinely granted in piecemeal fashion through all levels of government including national sub-constitutional laws, national constitutions, and regional and international treaties. In the hierarchy of individual rights, constitutionally granted rights are commonly perceived as the strongest and are most likely to be accepted as inviolable. Thus, the increasing number …

Reconstructing Rfra: The Contested Legacy Of Religious Freedom Restoration, Martin S. Lederman

Georgetown Law Faculty Publications and Other Works

Almost every member of Congress voted to approve the Religious Freedom Restoration Act of 1993 (RFRA), a bill endorsed by an unprecedented coalition of dozens of religious and civil rights organizations spanning the political and ideological spectrum. President Clinton quipped at the signing ceremony that perhaps only divine intervention could explain such an unusual meeting of the minds: the establishment of “new trust” across otherwise irreconcilable “ideological and religious lines,” he remarked, “shows . . . that the power of God is such that, even in the legislative process, miracles can happen.”

The RFRA consensus was especially “miraculous” because the …

On The Uneven Journey To Constitutional Redemption: The Malaysian Judiciary And Constitutional Politics, Yvonne Tew

Georgetown Law Faculty Publications and Other Works

This article explores the Malaysian judiciary’s approach toward interpreting the Federal Constitution of Malaysia and situates it within the context of the nation’s political and constitutional history. It traces the judiciary’s tentative movement toward a more rights-oriented approach followed by its more recent retreat in several appellate court decisions. This article argues that the Malaysian courts’ journey toward constitutional redemption has been uneven so far. In order to reclaim its constitutional position as a co-equal branch of government, the Malaysian judiciary must exhibit greater willingness to assert its commitment to constitutional supremacy and the rule of law.

Meyer, Pierce, And The History Of The Entire Human Race: Barbarism, Social Progress, And (The Fall And Rise Of) Parental Rights, Jeffrey Shulman

Georgetown Law Faculty Publications and Other Works

Long before the Supreme Court’s seminal parenting cases took a due process Lochnerian turn, American courts had been working to fashion family law doctrine on the premise that parents are only entrusted with custody of the child, and then only as long as they meet their fiduciary duty to take proper care of the child. With its progressive, anti-patriarchal orientation, this jurisprudence was in part a creature of its time, reflecting the evolutionary biases of the emerging fields of sociology, anthropology, and legal ethnohistory. In short, the courts embraced the new, “scientific” view that social “progress” entails the decline and, …

Foreword: Why Popular Sovereignty Requires The Due Process Of Law To Challenge "Irrational Or Arbitrary" Statutes, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

So-called “substantive due process” has long been criticized progressives and conservatives as a contradictory interpretation of the Due Process Clauses, and one that undermines the popular sovereignty of We the People to govern themselves. In this Foreword, I explain why an individual conception of We the People, leads to a “republican” conception of popular sovereignty that requires a neutral magistrate to adjudicate whether a statute restricting the liberties of the We the People is within the just powers of a legislature to enact. Because a measure that is ultra vires is not truly “a law,” enforcing it against a fellow …

Climate Exactions, J. Peter Byrne, Kathryn A. Zyla

Georgetown Law Faculty Publications and Other Works

This essay presents a legal device by which local governments can put a price on climate emissions and loss of resiliency generated by new real estate development. Local governments commonly impose fees, a type of monetary exaction, on new development to offset public costs that such development will impose. This Essay argues that monetary fees offer significant potential as a tool to help local governments manage land development’s contribution to climate change. Such “climate exactions” can put a price on the carbon emissions from new development and also on development that reduces the natural resiliency of the jurisdiction to the …

Protecting The Watchdog: Using The Freedom Of Information Act To Preference The Press, Erin C. Carroll

Georgetown Law Faculty Publications and Other Works

The fourth estate is undergoing dramatic changes. Many newspaper reporters, already surrounded by a growing number of empty desks, are shifting their focus away from costly investigative reporting and towards amassing Twitter followers and writing the perfect “share line.” Newspapers’ budgets can no longer robustly support accountability journalism and pitching fights against the government. And so, while this busier and noisier media environment may have a desirable democratizing effect—more of us are able to participate in analyzing, debating, and perhaps even making the news—it has not succeeded in filling a role that print journalists have traditionally played well—keeping watch on …

The Original Fourth Amendment, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

The meaning of the rights enshrined in the Constitution provide a critical baseline for understanding the limits of government action—perhaps nowhere more so than in regard to the Fourth Amendment. At the time of the Founding, the Fourth Amendment prohibited the government from entering into any home, warehouse, or place of business, against the owner’s wishes, to search for or to seize persons, papers, and effects, absent a specific warrant. The only exception was when law enforcement or citizens were in active pursuit of a felon.12 Outside of that narrow circumstance, the government was prohibited from search and seizure absent …

Interpreting Liberty And Equality Through The Lens Of Marriage, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

In this essay, I argue that marriage, as described and prescribed in Obergefell v. Hodges, functions as a lens that distorts the principles of liberty and equality upon which the opinion is based. The Supreme Court’s language is saturated with paeans to marriage, to the degree that the opinion seems to suggest that the moral worthiness of same-sex couples who wish to marry provides the ultimate justification for recognizing a constitutional right. The conceptual fulcrum in this analysis is dignity, which other courts have interpreted as an intrinsic human right that extends to a pluralism of family forms, but …

[Un]Happy Together: Why The Supremacy Clause Preempts State Law Digital Performance Rights In Radio-Like Streaming Of Pre-1972 Sound Recordings, Julie L. Ross

Georgetown Law Faculty Publications and Other Works

Lovers of the music of Frank Sinatra, Elvis Presley, Etta James, and hundreds of other recording artists whose records were made before February 15, 1972, may soon have a hard time hearing these great artists on any satellite or Internet radio service. Recently, two federal district courts have found that state laws were violated when satellite radio broadcaster Sirius XM Radio included pre-1972 sound recordings in its broadcasts without the owners’ permission, but these courts did not consider-–and the parties did not argue-–how the Supremacy Clause applies to those state law claims. This article argues that state laws purporting to …

Section 702 And The Collection Of International Telephone And Internet Content, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

Section 702 of the Foreign Intelligence Surveillance Act (FISA) authorizes the NSA to collect the electronic communications of non-U.S. targets located overseas. Recent media reports and declassified documents reveal a more extensive program than publicly understood. The article begins by considering the origins of the current programs and the relevant authorities, particularly the transfer of part of the post-9/11 President’s Surveillance Program to FISA. It outlines the contours of the 2007 Protect America Act, before its replacement in 2008 by the FISA Amendments Act (FAA). The section ends with a brief discussion of the current state of foreign intelligence collection …

Effectively Regulating E-Cigarettes And Their Advertising—And The First Amendment, Eric N. Lindblom

O'Neill Institute Papers

If tobacco smoking did not exist in the United States, there would be no reason, from a public health perspective, to allow addictive, nicotine-containing e-cigarettes to be marketed and sold. Because e-cigarette use, by itself, is neither beneficial nor benign to users and nonusers, the only public health justification for allowing e-cigarettes in the existing U.S. market would be if doing so would not sustain or increase existing smoking levels but would help smokers quit completely or provide addicted smokers a less harmful way to obtain the nicotine they crave. Yet e-cigarettes are now pervasive in the U.S. market, being …

A Mask That Eats Into The Face: Images And The Right Of Publicity, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

In their eagerness to reward celebrities for the power of their “images,” and to prevent other people from exploiting those images, courts have allowed the right of publicity to distort the First Amendment. The power of the visual image has allowed courts to create an inconsistent, overly expansive regime that would be easily understood as constitutionally unacceptable were the same rules applied to written words as to drawings and video games. The intersection of a conceptually unbounded right with a category of objects that courts do not handle well has created deep inconsistencies and biases in the treatment of visual …

Ambiguous-Purpose Statements Of Children And Other Victims Of Abuse Under The Confrontation Clause, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

The author examines in this paper two kinds of ambiguous-purpose out-of-court statements that are especially problematic under current Confrontation law--problematic in ways that we hope will be solved directly or indirectly by the Supreme Court when it renders its decision in Ohio v. Clark. The statements he examines are:

(1) Statements made by abused children concerning their abuse, for example to police, physicians, teachers, welfare workers, baby sitters, or family members, some of whom may be under a legal duty to report suspected abuse to legal authorities. At least some of these statements will be directly addressed by the …

A Deer In Headlights: The Supreme Court, Lgbt Rights, And Equal Protection, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

In this essay, I argue that the problems with how courts apply Equal Protection principles to classifications not already recognized as suspect reach beyond the most immediate example of sexual orientation. Three structural weaknesses drive the juridical reluctance to bring coherence to this body of law: two doctrinal and one theoretical. The first doctrinal problem is that the socio-political assumptions that the 1938 Supreme Court relied on in United States v. Carolene Products, Inc. to justify strict scrutiny for “discrete and insular minorities” have lost their validity. In part because of Roe v. Wade-induced PTSD, the courts have …

Hobby Lobby, Birth Control And Our Ongoing Cultural Wars: Pleasure And Desire In The Crossfires, Robin West

Georgetown Law Faculty Publications and Other Works

Both sides of the birth control debate agree that birth control artificially prevents or interrupts conception, allowing women to control their own fertility and allowing heterosexual men and women to enjoy unconstrained sexual liberty. However, the decision in Hobby Lobby omitted all discussion of this central function of birth control, and contained no mention of arguments for or against birth control that assume it.

This piece examines and criticizes the two major arguments opposing and supporting birth control on this understanding of its function and core social meaning: first the neo-natural lawyers’ argument against birth control advanced in a papal …

"Seg Academies," Taxes, And Judge Ginsburg, Stephen B. Cohen

Georgetown Law Faculty Publications and Other Works

This essay recounts the historical, political, and legal context in which Judge Ginsburg’s ruling in the Wright case arose. This context explains the importance of her decision to the battle against segregated education and highlights as well the repeated efforts of powerful political forces, including the Reagan administration and congressional conservatives, to cripple efforts to prohibit racially discriminatory private schools from receiving federal subsidies through the tax system. This essay also aims to highlight Wright’s place in the modern doctrine of educational discrimination.

Why The Nsa Data Seizures Are Unconstitutional, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Due to the unauthorized leaks of classified information, we have come to learn that the National Security Agency (NSA), an executive branch arm of the U.S. military, has established several data collection programs. In this article, I am not going to get into the details of these programs. Instead, I will limit my focus to what I consider to be the serious constitutional problem with any such program, regardless of the details: the fact that the NSA is demanding that private companies, with which virtually all Americans contract to provide their voice communications, turn over the records of every phone …

Unwrapping The Box The Supreme Court Justices Have Gotten Themselves Into: Internal Confrontations Over Confronting The Confrontation Clause, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

Williams v. Illinois, handed down in 2012, is the latest in a new and revolutionary line of U.S. Supreme Court cases beginning with the 2004 decision of Crawford v. Washington which radically altered the Court's former approach to the Constitutional Confrontation Clause. That clause generally requires persons who make written or oral statements outside the trial, that may constitute evidence against a criminal defendant, to take the witness stand for cross-examination rather than those statements being presented at the trial only by the writing or by another person who heard the statement.

Previous to Crawford, under Ohio v. …

Disappearing Claims And The Erosion Of Substantive Law, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

The Supreme Court’s arbitration jurisprudence from the last five years represents the culmination of a three-decade-long expansion of the use of private arbitration as an alternative to court adjudication in the resolution of disputes of virtually every type of justiciable claim. Because privatizing disputes that would otherwise be public may well erode public confidence in public institutions and the judicial process, many observers have linked this decades-long privatization of dispute resolution to an erosion of the public realm. Here, I argue that the Court’s recent arbitration jurisprudence undermines the substantive law itself.

While this shift from dispute resolution in courts—the …

The Making Of A Libertarian, Contrarian, Nonobservant, But Self-Identified Jew, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Many academics are unaware that I am Jewish, no doubt due, in part, to my last name as well as to my politics, Yet growing up as a Jew in Polish-Catholic Calumet City, Illinois and as a kid from Calumet City attending Temple in Hammond, Indiana made me quite conscious of the tyranny of the majority. This environment, together with the influence of my father, had a deep affect on my views of liberty, justice, individual rights, and the U.S. Constitution. In this brief essay, prepared for a symposium on “Judaism and Constitutional Law: People of the Book,” held at …

High Technology, Consumer Privacy, And U.S. National Security, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

Documents released over the past year detailing the National Security Agency’s (“NSA”) telephony metadata collection program and interception of international content under the Foreign Intelligence Surveillance Act (FISA) implicated U.S. high technology companies in government surveillance. The result was an immediate, and detrimental, impact on U.S. corporations, the economy, and U.S. national security.

The first Snowden documents, printed on June 5, 2013, revealed that the government had served orders on Verizon, directing the company to turn over telephony metadata under Section 215 of the USA PATRIOT Act. The following day, The Guardian published classified slides detailing how the NSA had …

Conceptualizing Student Practice For The 21st Century: Educational And Ethical Considerations In Modernizing The District Of Columbia Student Practice Rules, Wallace J. Mlyniec, Haley D. Etchison

Georgetown Law Faculty Publications and Other Works

This article traces the history of the amendment process. It provides a short history of student practice rules and then, using the student practice rule in effect in the District of Columbia prior to the 2014 amendments, describes the various components of those rules that courts and bars across the nation have implemented to assist courts, advance legal education, and preserve advocates’ ethical obligations to clients. It then describes some of the comments to the proposed amendments offered by the District of Columbia Bar and other D.C. lawyers during the public comment period and the modifications to the District of …

Freedom Of The Church And Our Endangered Civil Rights: Exiting The Social Contract, Robin West

Georgetown Law Faculty Publications and Other Works

In this comment I suggest that the “Freedom of the Church” to ignore the dictates of our various Civil Rights Acts, whether in the ministerial context or more broadly, created or at least newly discovered by the Court in Hosanna-Tabor, is a vivid example of a newly emerging and deeply troubling family of rights, which I have called elsewhere “exit rights” and which collectively constitute a new paradigm of both institutional and individual rights in constitutional law quite generally. The Church’s right to the ministerial exception might be understood as one of this new generation of rights, including some …

The Abiding Exceptionalism Of Foreign Relations Doctrine, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

In their article The Normalization of Foreign Relations Law, Professors Ganesh Sitaraman and Ingrid Wuerth argue that “[foreign affairs] exceptionalism . . . is now exceptional,” and that this is a good thing. I agree with much of the authors’ normative argument for “normalization” of foreign affairs doctrine (as they define the term). But the authors overstate the extent to which such normalization has already occurred. There have indeed been some recent Supreme Court decisions that seem to lack the exceptional deference to the Executive that had characterized judicial decisionmaking in the foreign affairs area in previous years. But foreign …

Precipice Regulations And Perverse Incentives: Comparing Historic Preservation Designation And Endangered Species Listing, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

The insight upon which this article is built is that the common structures of these two legal regimes create incentives toward destroying the resources they seek to protect. The shift from legal freedom to exploit resources to strict limitation on property modification and the lengthy and public process to designate or list specific resources for protection provide the motive and the opportunity to legally frustrate the application of the statutes. This article seeks to understand how these perverse incentives are created and how they can be lessened. The procedural and substantive provisions of both legal regimes have evolved to reduce …