Constitutional Law Commons^™

Power Of Pregnancy: Examining Constitutional Rights In A Gestational Surrogacy Contract, Alayna Ohs

UC Law Constitutional Quarterly

Modern technology has changed the way we look at pregnancy. Some parties seeking to utilize new technologies have entered into gestational surrogacy contracts, where a genetically unrelated woman acts as a surrogate, gestating an implanted embryo. While surrogacy contracts allow many people to parent in situations that might not otherwise be possible, they often fail to account for the important Constitutional interests of the gestational surrogate. This note argues that the idea of motherhood must be reconceputalized in the gestational surrogacy contract, so that the rights accorded to the surrogate are recognized as rights distinct from those of the "mother." …

Supreme Court Voting Behavior: 2000 Term, Richard G. Wilkins, Scott Worthington, Carter K. F. Chow, Sarah K. L. Chow

UC Law Constitutional Quarterly

This Study, the fifteenth in a series, tabulates and analyzes the voting behavior of the United States Supreme Court during the 2000 Term. The analysis is designed to determine whether individual Justices and the Court as a whole are voting more "conservatively," more "liberally," or about the same when compared with past Terms. This Term's survey shows mixed results, but suggests slight liberal movement for the Court as a whole, following last Term's conservative voting trend. The Court voted more liberally in six of the ten categories of the Study this Term compared to last Term. However, the strength of …

Should We Have Faith In The Faith-Based Initiative: A Constitutional Analysis Of President Bush's Charitable Choice Plan, Andrea Pallios

UC Law Constitutional Quarterly

This Note addresses the question of the constitutionality of President Bush's charitable choice initiative. Under this plan, the federal government would provide funding to faith-based organizations that provide community services. The constitutional question is difficult to assess for two reasons. First, most Supreme Court Establishment Clause cases address federal funding of religious schools, not charities. The Supreme Court has only considered the funding of religious charities twice, and only once during the 20th century. Neither of these cases is dispositive in the case of charitable choice. Second, over the past thirty years, the Supreme Court has used a variety of …

Access To The Airways After September 11: Do Aviation Businesses Devasted By The Restrictions Have A Fifth Amendment Remedy, Elton Ueoka Dodson

UC Law Constitutional Quarterly

The terrible events of September 11, 2001, led to a great fear that our airspace would again be used as a tool of terror. Unfortunately, general aviation, a sector of aviation not involved in the attacks, was disproportionately affected by the severe and sometimes questionable airspace restrictions that followed. Arguably, Americans have a right to use our nation's airspace, much like a public highway, subject only to reasonable government regulations. This Note sets out the historical and legal Fifth Amendment takings arguments which may grant general aviation business owners severely affected by the airspace restrictions a remedy.

Specifically, this Note …

A Third Theory Of Liberty: The Evolution Of Our Conception Of Freedom In American Constitutional Thought, John Lawrence Hill

UC Law Constitutional Quarterly

With the publication of Isaiah Berlin's essay, "Two Concepts of Liberty," liberals and their adversaries came to view their respective positions as expressions of a deeper philosophical gulf between two opposed ideas of freedom - what Kant first dubbed the "negative" and "positive" ideas of liberty. Negative liberty, or "freedom from," represented the classical liberal conception of freedom, while positive liberty or "freedom to" is vouchsafed by civic republicans, progressive liberals, socialists and others. Negative liberty was associated with the absence of constraint and, more specifically, with individual rights and limits upon government power while positive liberty was usually interpreted …

Youngstown Revisited, Christopher Bryant, Carl Tobias

UC Law Constitutional Quarterly

In Youngstown Sheet & Tube Co. v. Sawyer, the U.S. Supreme Court struck down as unconstitutional President Truman's 1952 executive order authorizing federal government seizure and operation of the nation's steel mills. In this article, Professors Bryant and Tobias apply this landmark precedent to the provisions of President Bush's November 13, 2001 military courts executive order that purport to authorize indefinite detention of covered individuals and to preclude them from invoking the jurisdiction of the federal courts.

In this article, the authors first examine the constitutional text, history, and relevant Supreme Court authority supporting the conclusion that Congress, not the …

Incongruent Disproportionality, K. G. Jan Pillai

UC Law Constitutional Quarterly

Since 1997, a sharply divided Supreme Court has decreed that all laws enacted by Congress in exercise of its enforcement powers under the Fourteenth Amendment must pass a newly-minted test of "congruence and proportionality." The Court insisted that the test is necessary to restrain Congress from enacting "substantive" legislation that transgresses its "remedial" powers and unconstitutionally intrudes upon the domain of state sovereignty. Every enforcement legislation that subsequently came up for the Court's scrutiny was held unconstitutional for failure to satisfy the proportionality test. The most heartwrenching casualty of the test is the American with Disabilities Act, which the Court …

The Metes And Bounds Of State Sovereign Immunity, Scott Dodson

UC Law Constitutional Quarterly

The morass of recent Supreme Court state sovereign immunity jurisprudence is closely examined. Rather than attack or defend the Court, the Article attempts to distill the Court's understanding of this complicated doctrine to an applicable rule. Where does state sovereign immunity end and abrogation begin? Immunity, after all, is mentioned nowhere in the Constitution. The Court's understanding of state sovereign immunity jurisprudence is discussed in depth and the Article demonstrates that state sovereign immunity remains inviolate throughout Article I of the Constitution and that state sovereign immunity cannot be overridden by the original Constitution. Professor Dodson argues instead that certain …

The Spectre Of Star Chamber: The Role Of An Ancient English Tribunal In The Supreme Court's Self-Incrimination Jurisprudence, Frank Riebli

UC Law Constitutional Quarterly

The author investigates the Supreme Court's allusions to the ancient English Court of Star Chamber. Throughout its history, the Supreme Court has used the spectre of Star Chamber to develop at least three themes in its Self-Incrimination Clause jurisprudence. Star Chamber appears as a symbol of brutality, the end of a slippery slope towards which our criminal justice system would drift but for the Self-Incrimination Clause's protections. Star Chamber is frequently used to describe the boundaries of the "testimonial evidence" doctrine, and thereby the scope and policies underlying the Self-Incrimination Clause. Finally, Star Chamber has appeared as a symbol of …

Religious Discrimination, Public Funding, And Constitutional Values, Steven K. Green

UC Law Constitutional Quarterly

TitleVII of the 1964 Civil Rights Act allows religious institutions to discriminate on the basis of religion in their employment practices, even in those situations where employees are not engaged in religious functions or duties. This exemption, while part of the law since 1972, has become more controversial since the enactment of Charitable Choice legislation that allows religious organizations to contract with the government to administer funded social services. Even though the Supreme Court upheld the exemption against an Establishment Clause challenge in 1987, that decision did not involve government funded programs. An examination of the legislative history behind the …

Federalism And The Rehnquist Court, Calvin R. Massey

Faculty Scholarship

No abstract provided.

Vindicating Civil Rights Under 42 U.S.C. 14141: Guidance From Procedures In Complex Litigation, Eugene Kim

UC Law Constitutional Quarterly

In order to provide remedy for institutional violations of civil rights, Congress enacted 42 U.S.C. § 14141, which authorizes the U.S. Attorney General to seek injunctive relief from unconstitutional patterns and practices by law enforcement officers. Investigations and lawsuits thus far have resulted in consent decrees and agreements between the U.S. Department of Justice and local governmental authorities. This Note proposes that, in order to achieve the most effective and meaningful reform, courts look for guidance to procedures in complex litigation. In particular, the Note discusses potential benefits of employing special masters in § 14141 cases, provision of notice and …

Coerced Confessions And The Fourth Amendment, Michael J. Zydney Mannheimer

UC Law Constitutional Quarterly

Coerced confessions in State criminal prosecutions have been thought to implicate the Due Process Clause of the Fourteenth Amendment, as well as the Self-Incrimination Clause of the Fifth Amendment. However, pursuant to Graham v. Connor, if an interest is addressed by one of the specific clauses of the Bill of Rights that has been incorporated against the States, only the standards associated with that provision- and not the more generalized notions of Due Process- apply to a claim that the interest has been infringed. Accordingly, one might think that the law of coerced confessions is governed entirely by the Self- …

Executive Orders, The Very Definition Of Tyranny, And The Congressional Solution, The Separation Of Powers Restoration Act, Leanna M. Anderson

UC Law Constitutional Quarterly

James Madison wrote, "The accumulation of all powers, legislative, executive, and judiciary, in the same hands... may justly be pronounced the very definition of tyranny." The Federalist No. 47, at 300 (James Madison) (Henry Cabot Lodge ed., 1888). Expansive executive orders are often criticized as the merger of legislative and executive powers in the hands of the President. This Note examines how the judiciary has worked to check this "tyranny." After examining the difficulties in challenging executive orders, this Note examines how the proposed Separation of Powers Restoration Act would facilitate legal challenges to executive orders.

From The Courtroom To The Street: Court Orders And Section 1983, Sheldon Nahmod

UC Law Constitutional Quarterly

Using a seriously questionable Eighth Circuit decision as a foil but going well beyond it, Professor Nahmod argues that absolute quasi-judicial immunity from section 1983 damages liability should only protect law enforcement officers and others whose challenged conduct is prescribed by presumptively valid court orders. In contrast, neither absolute nor qualified immunity should protect law enforcement officers and others who follow presumptively invalid judicial orders (a "Nuremberg following-orders" defense issue). Furthermore, quasi-judicial immunity should not protect law enforcement officers and others whose allegedly unconstitutional conduct is not prescribed by presumptively valid court orders; qualified immunity is more than adequate to …

Congressional Authority To Induce Waivers Of State Sovereign Immunity: The Conditional Spending Power (And Beyond), Michael T. Gibson

UC Law Constitutional Quarterly

Since 1997, the Court has issued almost a dozen Eleventh Amendment decisions, each of which expanded State sovereign immunity. Meanwhile, the Court's conservative, pro-State justices have discussed what Justice Anthony Kennedy has said is the most important federalism issue before the Court: Congressional authority to place conditions on grants of federal funds.

This article unites those two apparently independent doctrines. It contends that the Conditional Spending Power, as developed by Rehnquist, Scalia, and O'Connor, permits Congress to condition a State's receipt of federal funds upon that State's waiver of immunity to suits regarding how those funds are spent. The article …

Why Dosen't She Leave - The Collision Of First Amendment Rights And Effective Court Remedies For Victims Of Domestic Violence, Laurie S. Kohn

UC Law Constitutional Quarterly

Why doesn't she leave? This is a commonly asked question by people confounded by the phenomenon of women who stay in battering relationships despite the abuse they endure. Social scientists have offered many explanations to elucidate this seemingly paradoxical behavior. This article, however, focuses on a pervasive and previously unexamined explanation: the victim's fear that the batterer will publicize truthful confidential information about her. Typically, the batterer will threaten that if the victim leaves him, he will disseminate information such as the victim's HIV status, sexual orientation, or immigration status. The stakes are high. The victim will fear, often rationally, …

Colorblind Redistricting: Racial Proxies As A Solution To The Court's Voting Rights Act Quandry, Michelle E. O'Connor-Ratcliff

UC Law Constitutional Quarterly

This Note explores the crossroads of the Voting Rights Act of 1965, redistricting, strict scrutiny, the colorblind ideal, and racial proxies. Although better than total rejection of race as a consideration in redistricting, racial proxies are not good enough. The unattained colorblind ideal should not be treated as if it were reality. We are not yet a colorblind society and are likely a long way from it. Race awareness does have a part to play in building America into the Court's dream utopia that eventually becomes colorblind. Racial proxies only prompt states to pretend that race is not a factor …

Injury Without Harm: Texas V. Lesage And The Strange World Of Article Iii Injuries, Ashutosh Bhagwat

UC Law Constitutional Quarterly

In Texas v. Lesage the Supreme Court held, in a unanimous, per curiam opinion, that a plaintiff denied admission at a state university whose admissions process make unconstitutional use of race may not recover monetary damages under 42 U.S.C. §1983 if the defendant school can demonstrate that the plaintiff would have been denied admission even if race had not been used as a criterion. Elsewhere in the opinion, however, the Court indicated that such a plaintiff is entitled to injunctive relief because the relevant injury in that situation is "the inability to compete on equal footing." The latter holding builds …

Free Speech For Lawyers, W. Bradley Wendel

UC Law Constitutional Quarterly

The application of First Amendment doctrine to cases involving expressive liberties of lawyers and judges has been remarkably inconsistent. Courts are split on such fundamental issues as whether lawyers' speech should be considered core political expression or some other category of speech with diminished constitutional protection; whether lawyers give up some of their expressive freedoms upon becoming members of the bar; and whether government interests such as maintaining the public's respect for lawyers are sufficient bases for restricting speech. This Article considers how constitutional principles such as the principle of content- and viewpoint-neutrality, the distinction between speech and conduct, the …

United States V. Emerson And The Second Amendment, Wade Maxwell Rhyne

UC Law Constitutional Quarterly

This Note analyzes the district court decision in United States v. Emerson and compares the two competing theories of the Second Amendment: the states' rights and individual rights theories. The Note constitutionally examines these competing theories historically, textually, doctrinally, prudentially, and structurally. The Note then proposes a level of scrutiny and subsequent test for the government's curtailment of any individual right that may exist in the Second Amendment. It is an effort to define the outer boundaries of the permissible limits which may be placed on gun ownership.

Irrational Prejudice: The Military's Exclusion Of Gay, Lesbian, And Bisexual Service Members After Romer V. Evans, Huong Thien Nguyen

UC Law Constitutional Quarterly

On the brink of the new millennium, the European Court of Human Rights, with jurisdiction over 40 countries, representing about 800 million people, declared that Britain must allow gays, lesbians, and bisexuals to serve openly in its military. In the wake of this decision, the United States, however, has remained steadfast and undeterred in implementing the "Don't Ask, Don't Tell" Policy, the military ban on gays. The United States Supreme Court has not spoken on the Policy, and no federal circuit court has found it unconstitutional. In particular, equal protection challenges have failed as a result of the circuit courts' …

Supreme Court Voting Behavior: 1999 Term, Richard G. Wilkins, Scott Worthington, Rachelle Fleming, Matthew Fleming

UC Law Constitutional Quarterly

This Study, the fourteenth in a series, tabulates and analyzes the voting behavior of the United States Supreme Court during the 1999 Term. The analysis is designed to determine whether individual Justices and the Court as a whole are voting more "conservatively," more "liberally," or about the same as compared with past Terms. This Term's survey suggests a reversal of the Court's liberal trend over the past two Terms, with conservative movement in six of the ten categories. Specifically, the Court's support of statutory civil rights claims plummeted to an all time low, while the Court exhibited a dramatic conservative …

The Tensions Between Integration And School Reform, John A. Powell

UC Law Constitutional Quarterly

It is widely recognized that the purpose of education is not merely to develop in students a narrow set of skills. Rather, education should prepare all students to assume roles in actively shaping our democracy. Racial segregation and economic isolation in schools prevent the attainment of full and meaningful citizenship rights for students of color and low-income students in that they deny fair access to educational opportunities and other structures crucial to democratic participation. These forces also undermine our striving for a truly inclusive and participatory society. Many currently popular school reform measures promise benefits in terms of student outcomes …

Return To Neighborhood Schools, Concentrated Poverty, And Educational Opportunity: An Agenda For Reform, Patrick James Mcquillan, Kerry Suzanne Englert

UC Law Constitutional Quarterly

Throughout the US, school systems that once faced federally-mandated desegregation plans have been declared "unitary" - that is, courts ruled that these districts have removed any vestiges of overt segregation and therefore need not adhere to previous integration mandates. In Denver, Colorado, after busing students for over 20 years, federal courts declared the city school system unitary in 1996. In Denver the return to neighborhood schools has meant a concurrent return to more racially segregated schools. Given the strong correlation between race/ethnicity and socioeconomic status in US urban centers, the return to neighborhood schools has created conditions of concentrated poverty …

Sexually Explicit Speech, Jerrold J. Kippen

UC Law Constitutional Quarterly

Despite the title, this Note does not attempt to articulate a defense of sexually explicit speech. Rather, the effort here is to expose current inconsistencies in First Amendment speech doctrine and to argue that those inconsistencies are the result of the excessive, if not wholly improper, weight given to majoritarian morality when evaluating the regulation of non-obscence sexually explicit speech. Thus, this Note will argue that the Supreme Court's treatment of non-obscene sexually explicit speech in the form of licensing, zoning and nudity regulations has weakened the scrutiny applied to all speech regulations. The Note concludes that, because the assesment …

Clearly Canadian--Hill V. Colorado And Free Speech Balancing In The United States And Canada, Donald L. Beschle

UC Law Constitutional Quarterly

Two doctrines have equally influenced and informed the debate regrading the scope of the First Amendment free speech guarantee: absolutism versus the balancing of competing interests. Despite the language of the United States Constitution that suggests the application of absolutes, the courts have often resorted to balancing in the resolution of cases. This Article examines the debate by comparing the different approaches taken by the courts in the United States and Canada. This examination reveals that perhaps the two doctrines do not need to negate each other in their application, and that a recent decision by the United States Supreme …

Privileges Or Immunities: The Missing Link In Establishing Congressional Power To Abrogate State Eleventh Amendment Immunity, William J. Rich

UC Law Constitutional Quarterly

When the Supreme Court ruled that Congress could not rely upon its powers under Article I to abrogate Eleventh Amendment immunity, it failed to consider the significance of the Fourteenth Amendment Privileges or Immunities Clause. In Congressman Bingham's final speech to Congress calling for approval of that Amendment, he argued that the Privileges or Immunities Clause barred states from attempts to nullify federal law. Subsequent Supreme Court interpretations, beginning with the Slaughter-House Cases, reinforced this understanding. When Congress uses its Article I authority to establish rights, privileges, or immunities of the United States citizens, section five of the Fourteenth Amendment …

Tracking In An Era Of Standards: Low-Expectation Classes Meet High-Expectation Laws, Kevin G. Welner

UC Law Constitutional Quarterly

This article explores racial resegregation of students through the practice of tracking - the grouping of students into separate classrooms pursuant to perceived academic ability. It places tracking within its larger historical context, as a means for white parents to feel secure about their children's education, and presents a review of scholarly literature concerning the characteristics and application tracking. The main body of the article then sets forth recent analyses of data from two school districts, investigating the harmful and segregative effects of tracking. The article ends by examining aspects of tracking that leave it susceptible to legal challenge, considering …

The End Of School Desegregation And The Achievement Gap, David J. Armor

UC Law Constitutional Quarterly

After nearly five decades of school desegregation mandated by federal courts, school districts throughout the nation are being released from court orders, leading some civil rights proponents to complain that ending school desegregation will deprive minority students of educational benefits. This article argues that ending school desegregation will not have any appreciable impact on the academic achievement of African American students. To the extent that desegregation had academic benefits, those benefits have already occurred. Despite the extensive desegregation of American schools during the 1970s and 1980s, a large black-white achievement gap remains, and there is credible evidence that this gap …