Constitutional Law Commons^™

The Trouble With Classifications, Aziz Z. Huq

Notre Dame Law Review

The Supreme Court relies increasingly on anticlassification rules to implement the Constitution’s various commands of evenhanded state treatment. These rules direct attention to whether an instance of a forbidden classification is present on the face of a challenged law. They contain two necessary steps. First, a court defines a general category of impermissible terms. Second, a court ascertains whether an instance of the category is found in enacted text—so triggering the familiar strict scrutiny analysis. So defined, anticlassification rules now dominate equal protection, free speech, “dormant” Commerce Clause, and even free exercise jurisprudence. The Roberts Court celebrates these doctrinal tests …

The Lost History Of Judicial Restraint, Derek A. Webb

Notre Dame Law Review

For over 125 years, jurists and scholars who have championed judicial restraint have looked back to James Bradley Thayer’s 1893 Harvard Law Review article, The Origin and Scope of the American Doctrine of Constitutional Law, as the seminal authority for the rule that courts should presume the constitutionality of a challenged law and only invalidate it if its unconstitutionality is “clear” and “beyond a reasonable doubt.” But Thayer presented those three rules (presumption of constitutionality, clear error rule, and reasonable doubt standard) as rooted in historical legal practice in America. And yet none of his twentieth or twenty-first century …

A Uniform Choice? Esas And The State Right To Education, Hadiah C. Mabry

Notre Dame Law Review

Education savings accounts (ESAs) are on the rise. Just since 2023, ESAs have been on the legislative docket in Alabama, Georgia, Iowa, Montana, Ohio, Texas, Tennessee, and Wyoming, with ESAs already active in eleven other states. These programs provide funds directly to parents on a per-child basis which can be used on any number of educational pursuits. While ESAs are relatively young in the world of school choice, they are also the natural outgrowth of a greater push toward educational freedom for parents. They join the ranks of more established programs like school vouchers, tax credits, and charter schools.

Unlike …

Roving Extraterritoriality: The Murky Doctrine On State Laws Regulating Absent Citizens, Leo Schlueter

Notre Dame Law Review

It is generally agreed that sovereigns have the power to punish the crimes of their citizens abroad, at least in some situations. But sovereigns rarely exercise this power, and its contours are not well understood. This is especially true in the context of American federalism. It is unclear to what degree states have retained their sovereign extraterritorial powers, and the Supreme Court has never had occasion to fully explain their limits. Recent political developments, however, make it plausible that the question will soon arise. This Note attempts to provide some insight into the future debate over state criminal extraterritorial jurisdiction …

The Seventh Amendment Right To Jury Trial In The Administrative State: Recognizing The Dangers Of The Constitutional Moment, Martin H. Redish, Samy Abdelsalam

Notre Dame Law Review

One prominent constitutional scholar has sought to legitimize this constitutional transformation through resort to a strange and controversial analytical model he describes as the “constitutional moment.” In this Article, we plan to establish two important points: (1) there exists no principled mode of analysis of the Seventh Amendment right to jury trial that justifies the Court’s categorical dichotomy between Article III and non–Article III forums for purposes of the right’s applicability, and (2) while the theory of the “constitutional moment” would in fact justify the Court’s insulation of the administrative state from Seventh Amendment applicability, reliance on such a theory …

Non–Article Iii Federal Tribunals: An Essay On The Relation Between Theory And Practice, Richard H. Fallon Jr.

Notre Dame Law Review

Since the 1980s, the Supreme Court’s decisions involving the permissible uses of non–Article III federal tribunals have repeatedly invoked two competing theories. A “historical-exceptions” or “formalist” model would insist that only Article III judges can exercise federal adjudicative power except in three categories of cases that history marks as exceptional. A rival approach, often labeled “functionalism,” would allow further deviations from the historical norm if they are supported by sound practical justifications and do not threaten the fundamental role of the Article III judiciary within the separation of powers. This Article explores the relationship between theory and practice in explaining …

The Public/Private Rights Critics, Ann Woolhandler, Michael G. Collins

Notre Dame Law Review

In Adjudication in the Political Branches, Professor Caleb Nelson provided an influential account of when federal adjudication might take place outside of the Article III courts. The ability of Congress to place adjudicative matters outside of Article III courts largely depended on whether the matter might be considered one of public or private rights. Nelson also traced changes over time that undermined the coherence of the traditional public/private right distinction, and recommended returning to the traditional model. Later writers have attempted either to qualify or refute the existence of the public/private-rights framework by studying particular areas of law that …

Brief Amicus Curiae Of Federal Courts Professor Derek T. Muller In Support Of Defendant-Appellant, Daniel F. Mummolo, Christopher G. Michel, Rachel G. Frank, Derek T. Muller

Court Briefs

No. 23-7173
David O'Connell v. United States Conference of Catholic Bishops

On Appeal from the United States District Court for the District of Columbia
1:20-cv-01365-JMC ∙ Honorable Jia M. Cobb

From the Introduction and Summary of Argument

The threshold question in this appeal is whether the Court has jurisdiction to hear it. The answer turns on the proper construction of 28 U.S.C. § 1291, which grants this Court jurisdiction over “appeals from all final decisions of the district courts.” In keeping with the provision’s text and history, both the Supreme Court and this Court have long understood Section 1291 to …

First Amendment Imbalance: Kennedy V. Bremerton School District, Steven K. Green

Notre Dame Law Review Reflection

This Essay seeks to unpack the competing legal claims presented by a public-school employee engaging in religious expression in conjunction with their work duties and in the presence of students. The competing First Amendment issues are several: nonestablishment, free exercise, free speech (including the government-employee speech doctrine), and parental expressive rights. These various issues came to a head in 2022 in Kennedy v. Bremerton School District where a Court majority affirmed the right of a high school football coach to engage in demonstrative prayers on the football field at the conclusion of a game. In so holding, the majority prioritized …

Public Employees As A Reflection Of A Religiously Diverse Culture, Steven T. Collis

Notre Dame Law Review Reflection

For decades, scholars and jurists have debated over whether government violates the Establishment Clause when it endorses religion or if coercion is required. In Kennedy v. Bremerton School District, the Supreme Court put this argument to rest, at least as to public employees. It grounded its decision in some form of originalism. While that will be sufficient to satisfy some readers, others will want to be assured of the wisdom of the rule originalism demands. This Essay argues that a coercion test for the private religious exercise of public employees is appropriate for a pluralistic society.

It offers four …

Thoughts On The Architecture Of Freedom Of Religion And Freedom Of Speech, Perry Dane

Notre Dame Law Review Reflection

This symposium was convened to explore the rights of businesses and employees to invoke freedom of religion or freedom of expression to resist certain forms of state regulation. The most immediate occasions for that discussion, at least for my purposes, are cases such as 303 Creative LLC v. Elenis, in which the Supreme Court upheld the right of a website designer to refuse to design a wedding website for a same-sex couple. These sorts of cases, which pit the religious or expressive rights of conscientious believers against the equality rights of others, have proliferated in recent years.

I have …

Ordinary Conscience And Pretend Offenses: Protecting Those Left Out Of Title Vii After Groff, Robin Fretwell Wilson, Michael J. Petersen

Notre Dame Law Review Reflection

Part I reviews America’s foundational commitment to fairness and transparency by government, as well as the deep respect the Founders believed should be accorded to conscience specifically.

Part II applauds the unanimous decision in Groff to walk back the Supreme Court’s grievous error in Trans World Airlines, Inc. v. Hardison. We canvas illustrative cases pre-Groff in which employees, notwithstanding Hardison’s “de minimis” burden standard, proceeded to trial, and instances in which employees did not. We also illustrate how, post-Groff, employees are, rightfully, having an easier time getting to trial.

Even as Groff makes actual Title …

Cleaning The Mess Of 303 Creative V. Elenis, Netta Barak-Corren

Notre Dame Law Review Reflection

No piece of academic writing can clean, by itself, the mess left by 303 Creative v. Elenis. Only the Court can. This symposium piece can only offer analytical clarity on 303 Creative, which can help to understand and organize the mess. I will proceed to do so in three steps. First, I point out the glaring omissions of the Court’s opinion and criticize the dangerous consequences of the Court’s inexplicable approach. Second, I discuss the inconsistency of the dissent and the truth it reveals about the unviability of its sweeping position. Finally, I argue that the only way …

Guns, Analogies, And Constitutional Interpretation Across Centuries, Frederick Schauer, Barbara A. Spellman

Notre Dame Law Review

In New York State Rifle & Pistol Ass’n v. Bruen, the Supreme Court acknowledged the difficulties in applying its constitutional originalism to the question of firearms regulation. After all, the fully automatic assault rifles whose sale, possession, and use lie at the center of many contemporary debates about gun control and the Second Amendment simply did not exist in 1791, when the Second Amendment was ratified. Nor did they exist in 1868, when the Fourteenth Amendment, the vehicle for applying the Second Amendment to the states, was added to the Constitution. The firearms that existed in 1791 were largely …

Bruen’S Enforcement Puzzle: Unearthing And Adjudicating The Historical Enforcement Record In Second Amendment Cases, Andrew Willinger

Notre Dame Law Review

The Supreme Court’s 2022 decision in New York State Rifle & Pistol Ass’n v. Bruen brings historical complexity to the fore by instituting a history-focused test for the Second Amendment that demands analogues from the Founding or Reconstruction eras to support modern gun regulations. The majority opinion in Bruen considers, in multiple places, how certain historical gun regulations may have been enforced. In each instance, the Court suggests that evidence of racially disparate enforcement of a historical law is relevant to whether that law is part of the American historical tradition and an appropriate analogue. Historical enforcement data appear to …

Technology, Tradition, And “The Terror Of The People”, Darrell A.H. Miller, Alexandra Filindra, Noah Kaplan, Craig M. Burnett

Notre Dame Law Review

In New York State Rifle & Pistol Ass’n v. Bruen, the Supreme Court mandated a text, history, tradition, and analogy–only approach to Second Amendment cases.

No longer can policymakers rely on empirical data alone to carry their litigation burden. Now such data must conform to a still-emerging “historical tradition of firearm regulation” to meet constitutional muster. Some despair that reams of data, careful experiments, and rigorous statistical analyses no longer have any relevance to the gun debate.

But those that claim that Bruen signals the end of empirically grounded policy solutions badly misread the opinion. Empirical studies can still …

Diverse Originalism, History & Tradition, Christina Mulligan

Notre Dame Law Review

The Supreme Court’s New York State Rifle & Pistol Ass’n v. Bruen decision appears to be an originalist opinion, ostensibly looking for the meaning of the Constitution’s text by looking to the public’s understanding of the language used. But Bruen's test actually fails to follow a public meaning originalist methodology. The Court focuses present-day constitutional interpreters on evidence of constitutional meaning that only reflects a portion of the public—the politically empowered men who were in a position to pass legislation. Two unfortunate outcomes follow. First, by limiting potential evidence of public meaning so severely, the Court raises the risk …

The General-Law Right To Bear Arms, William Baude, Robert Leider

Notre Dame Law Review

In this Article, we argue that Bruen's intended methodological shift has been widely misunderstood by the bench and bar. This has led to confusion and misapplication in the lower courts, as well as much scholarly criticism of the test that is, we think, misdirected. As we will explain, Bruen calls for a form of legal originalism, applying a classical view of fundamental rights as a form of unwritten customary law. This is consistent with the text and history of the Constitution and leads to results that are less mechanical and more sensible than many lower courts have thought. Understanding …

Historical Fact, Ryan C. Williams

Notre Dame Law Review

The growing emphasis on history as a criterion of constitutional decision-making in Supreme Court jurisprudence has raised the importance of a distinctive type of judicial fact-finding—namely, the investigation and resolution of contested questions of historical fact. Although history has always played an important role in constitutional adjudication, its primary role has traditionally been as an input to constitutional interpretation. But in cases like New York State Rifle & Pistol Ass’n v. Bruen, the Court has increasingly demanded that factual determinations regarding the content, meaning, purposes, and effects of decisions taken in the distant past should also guide the lower …

Strengthening State Constitutions, Jared C. Huber

Notre Dame Law Review

This Note argues that state constitutions should have more difficult amendment procedures than most states currently do. Part I highlights the ease of amending most state constitutions by evaluating state constitutional amendment procedures. Next, Part II argues that because constitutions are fundamental, organizing laws, their amendment procedures should reflect such status. Finally, Part III of this Note examines state constitutional amendments that resulted from national political turmoil and argues amendment procedures should be stringent enough to temper such reactionism. If a constitution is to be a constitution, it must be resilient enough to function as one. State constitutions largely fail …

What Originalism Can Teach Historians: History As Analogy, Means-Ends Tests, And The Problem Of History In Bruen, Kunal M. Parker

Notre Dame Law Review

There is a long tradition of professional historians’ critiques of lawyers’ truncated understandings and clumsy deployments of the past. The intellectual historian J.G.A. Pocock’s The Ancient Constitution and the Feudal Law, with its depiction of a “common-law mind” obdurately committed to the continuity of law and unable to grasp the significance of situating law in historical context, might be taken as the origin point of a post–World War II tradition. Historians’ critiques have enjoyed a fresh lease of life since constitutional originalism began to assume prominence in the closing decades of the twentieth century. As legal scholars and judges …

Brief Of The Manhattan Institute And Notre Dame Education Law Project As Amici Curiae Supporting Petitioners, Nicole Stelle Garnett, Ilya Shapiro, Tim Rosenberger

Court Briefs

No. 23-1084
Jill Hile v. Michigan

On Petition for a Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit

From the Background and Summary of Argument

Petitioners are members of Parent Advocates for Choice in Education Foundation (PACE), which seeks to protect and further educational rights. They contend that Art. VIII, § 2 of the Michigan constitution discriminates against religion. Accordingly, its enforcement would violate the Free Exercise Clause.

The History Of Bans On Types Of Arms Before 1900, David B. Kopel, Joseph G.S. Greenlee

Journal of Legislation

This Article describes the history of bans on particular types of arms in America, through 1899. It also describes arms bans in England until the time of American independence. Arms encompassed in this article include firearms, knives, swords, blunt weapons, and many others. While arms advanced considerably from medieval England through the nineteenth-century United States, bans on particular types of arms were rare.

An Originalist Approach To Puerto Rico: Arguments Against The Status Quo, Micah Allred

Notre Dame Law Review Reflection

Few originalists have grappled with a fundamental question about Puerto Rico: whether the Constitution permits the United States to hold the island indefinitely as nonstate territory. There are reasons to doubt that it does. The main purpose of the Constitution’s territorial provisions was to allow Congress to transition the then West-ern Territory into states. And, as a structural matter, Congress’s direct authority over Puerto Ricans conflicts with important constitutional principles such as federalism. But for originalists, arguments from purpose and structure are helpful only insofar as they elucidate the original meaning of the Constitution’s text. This Article lays out two …

Pretrial Commitment And The Fourth Amendment, Laurent Sacharoff

Notre Dame Law Review

Today, the Fourth Amendment Warrant Clause governs arrest warrants and search warrants only. But in the founding era, the Warrant Clause governed a third type of warrant: the “warrant of commitment.” Judges issued these warrants to jail defendants pending trial. This Article argues that the Fourth Amendment Warrant Clause, with its oath and probable cause standard, should be understood today to apply to this third type of warrant. That means the Warrant Clause would govern any initial appearance where a judge first commits a defendant—a process that currently falls far short of fulfilling its constitutional and historical function. History supports …

Proportionalities, Youngjae Lee

Notre Dame Law Review Reflection

“Proportionality” is ubiquitous. The idea that punishment should be proportional to crime is familiar in criminal law and has a lengthy history. But that is not the only place where one encounters the concept of proportionality in law and ethics. The idea of proportionality is important also in the self-defense context, where the right to defend oneself with force is limited by the principle of proportionality. Proportionality plays a role in the context of war, especially in the idea that the military advantage one side may draw from an attack must not be excessive in relation to the loss of …

Who Is A Minister? Originalist Deference Expands The Ministerial Exception, Jared C. Huber

Notre Dame Law Review

The ministerial exception is a doctrine born out of the Religion Clauses of the First Amendment that shields many religious institutions’ employment decisions from review. While the ministerial exception does not extend to all employment decisions by, or employees of, religious institutions, it does confer broad—and absolute—protection. While less controversy surrounds whether the Constitution shields religious institutions’ employment decisions to at least some extent, much more debate surrounds the exception’s scope, and perhaps most critically, which employees fall under it. In other words, who is a "minister" for purposes of the ministerial exception?

On Traditionalism In Free Speech Law, R. George Wright

Journal of Legislation

No abstract provided.

Brief Of Professor Derek T. Muller As Amicus Curiae In Support Of Neither Party, Heather Gebelin Hacker, Derek T. Muller

Court Briefs

No. 23-719
Donald J. Trump v. Norma Anderson

On Writ of Certiorari to the Supreme Court of Colorado

From the Summary of Argument

States hold the power to adjudicate the qualifications of presidential candidates. That power extends to the general election, even though the election is formally a process to appoint presidential electors. And that power extends to the primary election, even though state voters are formally selecting delegates to a party’s nominating convention. But states have no obligation to evaluate the qualifications of presidential candidates, and states may choose to permit openly unqualified presidential candidates to appear on the …

State Sovereign Immunity And The New Purposivism, Anthony J. Bellia Jr., Bradford R. Clark

Journal Articles

Since the Constitution was first proposed, courts and commentators have debated the extent to which it alienated the States’ preexisting sovereign immunity from suit by individuals. During the ratification period, these debates focused on the language of the citizen-state diversity provisions of Article III. After the Supreme Court read these provisions to abrogate state sovereign immunity in Chisholm v. Georgia, Congress and the States adopted the Eleventh Amendment to prohibit this construction. The Court subsequently ruled that States enjoy sovereign immunity independent of the Eleventh Amendment, which neither conferred nor diminished it. In the late twentieth-century, Congress began enacting statutes …