Constitutional Law Commons^™

Gonzales, Casey And The Viability Rule, Randy Beck

Scholarly Works

Gonzales v. Carhart upheld a federal ban on intact D&E abortions. The dissenters in Gonzales accused the majority of ignoring the rule that a state may only prohibit abortion of a viable fetus, one capable of life outside the womb. The continuing discord over the viability rule highlights an issue that remains unsettled 34 years after Roe: Why may a state protect the life of a fetus after it reaches viability, but not before? Professor John Hart Ely long ago noted Roe's failure to justify the viability rule, observing that the Court's defense seems to mistake a definition for a …

The Supreme Courts Municipal Bond Decision And The Market-Participant Exception To The Dormant Commerce Clause, Dan T. Coenen

Scholarly Works

Does it violate the dormant Commerce Clause for a state to exempt interest earned on its own bonds, but no others, from income taxation? In a recent decision, the Supreme Court answered this question in the negative. Six members of the Court found the case controlled by the state-self-promotion exception to the dormancy doctrine's antidiscrimination rule. Three of those Justices, however, went further by also invoking the longstanding market-participant exception to sustain the discriminatory state tax break. This Essay challenges that alternative line of analysis. According to the author, the plurality's effort to apply the market-participant principle: (1) invites a …

Arbitration And Article Iii, Peter B. Rutledge

Scholarly Works

Does arbitration violate Article III? Despite the critical need for a coherent theory to answer this question, few commentators or courts have made serious attempts to provide one. For much of the country's history, federal courts conveniently could avoid this nettlesome question. Prior to the twentieth century, courts simply declined to enforce pre-dispute arbitration agreements as unenforceable attempts to appropriate their jurisdiction. From the early decades of the twentieth century (with the enactment of the Federal Arbitration Act (“FAA”) in 1925) through the 1960s, the non-arbitrability doctrine prevented arbitrators from resolving issues of federal statutory law. Notably, while both of …

Sanctionable Conduct: How The Supreme Court Stealthily Opened The Schoolhouse Gate, Sonja R. West

Scholarly Works

The Supreme Court's decision in Morse v. Frederick signaled that public school authority over student expression extends beyond the schoolhouse gate. This authority may extend to any activity in which a student participates that the school has officially sanctioned. The author argues that this decision is unsupported by precedent, and could encourage schools to sanction more events in the future. Because the Court failed to limit or define the power of a school to sanction an activity, the decision could have a chilling effect on even protected student expression. The author commends the Court for taking up this issue after …

"Saturday Night's Alright For Fighting": Congressman William Jefferson, The Saturday Night Raid, And The Speech Or Debate Clause, James W. Mcphillips

Georgia Law Review

On May 20, 2006, for the first time in U.S. history, federal agents executed a search warrant in raiding the Capitol Hill office of a sitting member of Congress. The raid was the culmination of a fourteen month corruption and bribery investigation into Representative William J. Jefferson's business dealings in Africa. Supported by bipartisan outcry, Jefferson sought the return of the documents seized in the raid under the legislative immunity protection of the Speech or Debate Clause. In United States v. Rayburn House Office Building, the D.C. Circuit agreed with Jefferson that the FBI violated his constitutional rights and granted …

Ritual, Emotion, And Political Belief: The Search For The Constitutional Limit To Patriotic Education In Public Schools, Brent T. White

Georgia Law Review

Young children across America begin the school day with ritualized expressions of loyalty to the United States. Relying upon evidence from the cognitive and neurosciences, this Article argues that such patriotic rituals embed patriotic predispositions in children's unconscious at a time when they are especially vulnerable to emotional manipulation. These patriotic predispositions in turn sharply constrain children's future conceptions of political reality and shape their political beliefs. Additionally, by conditioning the same symbolic attachments in the vast majority of Americans, ritualized patriotic education contributes to the manipulation of the public by public officials, legitimizes anti-democratic aspects of the American system, …

The "Scope Of A Student": How To Analyze Student Speech In The Age Of The Internet, Erin Reeves

Georgia Law Review

In three seminal cases dating from 1969-1988, the U.S. Supreme Court determined that students have a more limited right to free speech while within the confines of a public school building. In recent years, however, more and more cases have arisenin which it is not so clear whether a student speaker is "on-campus,"due in large part to the rapid increase in speech communicated over the Internet. This Note explores the possibility of how far the "confines of a public school building" should be extended in this age of the Internet. After analyzing the current confusion regarding what amount of restriction …

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 …

Federalism And Accountability: State Attorneys General, Regulatory Litigation, And The New Federalism, Timothy L. Meyer

Scholarly Works

This Comment will examine how one particular state institution, state attorneys general (SAGs), has operated within a unique set of institutional and political constraints to create state-based regulation with nationwide impact in policy areas including consumer protection, antitrust, environmental regulation, and securities regulation. This state-based regulation casts doubt on one of the principle rationales advanced in the Supreme Court's anticommandeering line of cases for limiting federal power; namely, that such a move enhances electoral accountability, a concept central to our democracy. If in the absence of federal regulation a series of narrowly accountable state-based actors can create nationwide regulation in …

Fifteen Curious Facts About The Federalist Papers, Dan T. Coenen

Popular Media

University Professor and Hosch Professor Dan Coenen shares 15 interesting facts about The Federalist Papers, which were written to promote the ratification of the U.S. Constitution.

Judicial Activism: An Empirical Examination Of Voting Behavior On The Rehnquist Natural Court, Lori A. Ringhand

Scholarly Works

This paper attempts to quantify one of the most deeply contested terms in constitutional law: “judicial activism.” Most discussions of “judicial activism” define activism either in reference to a particular political ideology (such as complaints about “liberal activist judges”) or a particular method of constitutional interpretation (such as assertions that a decision was “activist” because it was not based on the original meaning of the Constitution). This paper sidesteps those debates, focusing instead on an empirical examination of how recent U.S. Supreme Court justices have in fact exercised their judicial power. I do this by examining the voting records of …

The Future Of Footnote Four, Dan T. Coenen

Scholarly Works

The Supreme Court's decision in United States v. Carolene Products Co. generated the most famous footnote-and perhaps the most famous passage-in all of the American Judiciary's treatment of constitutional law. Among other things, Footnote Four suggested that "prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry." The importance of this principle cannot be overstated. It pervaded the work of the Warren Court and has played a prominent role …

The Essential Holding Of Casey: Rethinking Viability, J. Randy Beck

Scholarly Works

The Planned Parenthood of Southeastern Pennsylvania v. Casey plurality acknowledged an obligation to "justify the lines we draw." The corollary would seem to be an obligation to eschew lines that defy principled justification. In the decades since Roe v. Wade, the Court has offered no adequate rationale for the viability standard, notwithstanding persistent judicial and academic critiques. Exacerbating this country's divisions over abortion and placing us out of step with the world community, the viability rule seems a strong candidate for abandonment as the Court continues to rethink its abortion jurisprudence in the aftermath of Casey.

Is Capital Punishment Unconstitutional? And Even If We Think It Is, Should We Want The Supreme Court To So Rule?, Michael J. Perry

Georgia Law Review

Given that the Supreme Court of the United States, in protecting constitutionally entrenched human rights, exercises the power of judicial ultimacy, should the Court exercise the power deferentially? That is, should the Court defer to some degree to the judgment of the members of the legislative and/or executive branches of government whose law or policy is in question and who presumably have concluded that the law or policy does not violate any human right?

The choice here is best understood as a choice between two different judicial attitudes or orientations. For a judge to adopt a deferential attitude-for her to …

The "Order-Of-Battle" In Constitutional Litigation, Michael Wells

Scholarly Works

This article examines and defends a procedural rule that figures prominently in constitutional tort litigation, has drawn sharp criticism from the federal judiciary, and seems to have lost the support of at least four sitting Supreme Court Justices. In order to recover damages, plaintiffs must not only prove a constitutional violation but also fend off assertions of official immunity. In ruling on motions to dismiss the complaint and motions for summary judgment, a preliminary question is the sequence in which the two issues should be addressed-a problem the Justices call the "order-of-battle." Morse v. Frederick, the "Bong Hits Jesus" case, …

Clerks, Peter B. Rutledge

Scholarly Works

Book Review of Sorcerers' Apprentices: 100 Years of Law Clerks at the United States Supreme Court, Artemus Ward and David L. Weiden. NYU, 2006. Pp xiv, 337. and Courtiers of the Marble Palace: The Rise and Influence of the Supreme Court Law Clerk, Todd C. Peppers. Stanford, 2006. Pp xv, 301

Is "Internal Consistency" Dead?: Reflections On An Evolving Commerce Clause Restraint On State Taxation, Walter Hellerstein

Scholarly Works

Under the "internal consistency" doctrine articulated by the U.S. Supreme Court under the dormant Commerce Clause, a state tax must be structured so that if every state were to impose an identical tax, interstate commerce would fare no worse than intrastate commerce. Although a relatively recent addition to the Court's Commerce Clause jurisprudence, the doctrine has played a significant role as the basis for the judicial invalidation of a wide array of state and local taxes. In American Trucking Associations, Inc., v. Michigan Public Service Commission, 545 U.S. 429 (2005), however, the Court sustained an admittedly "internally inconsistent" $100 per …

Imports Or Made-In-China: Comparison Of Two Constitutional Cases In China And The United States, Xiao Li

LLM Theses and Essays

When its economic increase attracts the global attention, China is also looking for a break-through in its judicial reform. The Qi v. Chen case (2001) was considered to be the Chinese version of Marbury v. Madison and gave rise to a heated discussion of the judicial review power in China. This article will analyze the doubts on the Qi case and the prospects of judicial review it indicates through comparison with Marbury v. Madison. Although Qi v. Chen opened the door for constitutional litigation, its dramatic facts and strained application of the Constitution threw it into question. Nevertheless, its effect …

Crumbs From The Master's Table: The Supreme Court, Pro Se Defendants And The Federal Guilty Plea Process, Julian A. Cook

Scholarly Works

This Article will commence with a review of the rather significant evolution of Rule 11, including a review of several pertinent Supreme Court decisions that have helped shape its current structure. Thereafter, the predominant judicial methodology for conducting Rule 11 hearings will be discussed. Specifically, this Article will take a brief but critical look at, inter alia, the examination techniques employed by the judiciary when conducting Rule 11 hearings, and conclude that the process typically employed inadequately assesses whether a defendant's guilty plea was entered into knowingly and voluntarily. Next, this Article will discuss two very recent Supreme Court decisions--United …

The Rhetoric For Ratification: The Argument Of "The Federalist" And Its Impact On Constitutional Interpretation, Dan T. Coenen

Scholarly Works

Courts, lawyers, and scholars have long assumed that The Federalist Papers supply important information for use in constitutional argument and interpretation. In recent years, commentators have questioned this view. Their skepticism grows out of two major concerns. First, Justice Scalia's challenge to the use of legislative history in the statutory context casts a cloud over judicial use of background texts such as The Federalist in seeking the meaning of the Constitution. Second, even if courts may rely on some background materials in interpreting the Constitution, there is reason to conclude that The Federalist does not qualify as the sort of …

The Story Of Me: The Underprotection Of Autobiographical Speech, Sonja R. West

Scholarly Works

This Article begins the debate over the constitutional underprotection of autobiographical speech. While receiving significant historical, scientific, religious, and philosophical respect for centuries, the timehonored practice of talking about yourself has been ignored by legal scholars. A consequence of this oversight is that current free speech principles protect the autobiographies of the powerful but leave the stories of “ordinary” people vulnerable to challenge. Shifting attitudes about privacy combined with advanced technologies, meanwhile, have led to more people than ever before having both the desire and the means to tell their stories to a widespread audience. This Article argues that truthful …

The Roberts Court: Year 1, Lori A. Ringhand

Scholarly Works

This paper is an empirical analysis of the Supreme Court's recently-ended 2005 term, including an examination of the issues raised by, and the ideological direction of, the decisions issued by the Court. In addition to reviewing the work of the Court as a whole, the paper also separately examines the jurisprudence of new Justices Roberts and Alito. In doing so, it raises the possibility that these justices may have more in common with each other than with the Court's more established conservative members. The paper also demonstrates that the Court, pursuant to one of Justice Roberts' frequently stated goals, was …

International Law And Rehnquist-Era Reversals, Diane Marie Amann

Scholarly Works

In the last years of Chief Justice Rehnquist's tenure, the Supreme Court held that due process bars criminal prosecution of same-sex intimacy and that it is cruel and unusual to execute mentally retarded persons or juveniles. Each of the later decisions not only overruled precedents set earlier in Rehnquist's tenure, but also consulted international law as an aid to construing the U.S. Constitution. Analyzing that phenomenon, the article first discusses the underlying cases, then traces the role that international law played in Atkins, Lawrence, and Simmons. It next examines backlash to consultation, and demonstrates that critics tended to overlook the …

Human Rights And Due Process Of Law, Donald E. Wilkes Jr.

Popular Media

One of our constitutional rights, the right to due process of law, is terra incognita to most Americans, even though it is one of the most important constitutional rights. This article discusses the history of this fundamental right.

The Rhetoric Of Necessity (Or, Sanford Levinson's Pinteresque Conversation), Kevin Jon Heller

Scholarly Works

It may seem odd to begin a discussion of whether the President should have the power to act extraconstitutionally in times of necessity with a quote from The Dwarves. As I researched this Comment, though, I could not escape the uneasy feeling that I was witnessing what could only be described as a Pinteresque conversation--a conversation in which Professor Levinson and his interlocutors, "while exchanging remarks apparently on a common topic, and using mutually comprehensible vocabulary, are revealed as experiencing a profound failure to communicate with one another." Professor Levinson wants to find a workable balance between constitutional restraints and …

John Paul Stevens, Human Rights Judge, Diane Marie Amann

Scholarly Works

This article explores the nature and origins of Supreme Court Justice John Paul Stevens' engagement with international and foreign law and norms. It first discusses Stevens' pivotal role in the revived use of such norms to aid constitutional interpretation, as well as 1990s opinions testing the extent to which constitutional protections reach beyond the water's edge and 2004 opinions on post-September 11 detention. It then turns to mid-century experiences that appear to have contributed to Stevens' willingness to consult foreign context. The article reveals that as a code breaker Stevens played a role in the downing of the Japanese general …

Kelo V. City Of New London: Supreme Court Refuses To Hamstring Local Governments, James C. Smith

Popular Media

The Court's decision last term in Kelo v. City of New London, 125 S.Ct. 2655 (2005), has drawn heavy fire, most of it unmerited. By the narrowest of margins, the Court held that the city could take single-family homes to develop an office park and to provide parking or retail services for visitors to an existing state park and marina. Many observers thought the Court would take this opportunity to display its "conservative" activism by reining in the power of eminent domain. After all, the Court has grown increasingly protective of property rights during the past two decades. See …

Constitutional Norms In A State Of Permanent Emergency, Sanford Levinson

Georgia Law Review

Perhaps the most important constitutional issue of our time involves claims by the President to exercise power sufficient to confront ostensible 'emergencies" faced by the United States. One question is whether the Constitution grants the President sufficient powers. If not, are presidents justified in going 'beyond the Constitution"in order to do what they believe necessary in the given context? Professor Levinson demonstrates that debates about "emergency powers" have been a feature of our political system almost from its beginning. Many of those deemed our "greatest" presidents-Jefferson, Lincoln, and Franklin Roosevelt-have acted in questionable ways with regard to what might legitimately …

The Rhetoric Of Necessity (Or, Sanford Levinson's Pinteresque Conversation), Kevin J. Heller

Georgia Law Review

It may seem odd to begin a discussion of whether the President should have the power to act extraconstitutionally in times of necessity with a quote from The Dwarfs. As I researched this Comment, though, I could not escape the uneasy feeling that I was witnessing what could only be described as a Pinteresque conversation-a conversation in which Professor Levinson and his interlocutors, "while exchanging remarks apparently on a common topic, and using mutually comprehensible vocabulary, are revealed as experiencing a profound failure to communicate with one another."2 Professor Levinson wants to find a workable balance between constitutional restraints and …

The Emancipation Proclamation And The Commander In Chief Power, Michael S. Paulsen

Georgia Law Review

Levinson, a good Socratic teacher, poses the question what is the relationship of emergency or necessity to constitutional power, constitutional rights, and constitutional interpretation generally, and surrounds it with a characteristically fascinating discussion. But while his leanings are clear, he does not clearly answer the question his discussion poses. One can certainly infer that Levinson dislikes Carl Schmitt's legal theories of emergency, which he sees as justifying Hitler's rise to power. And it certainly comes through quite clearly that Levinson feels the same way about the U.S. Department of Justice's legal analysis concerning detention and interrogation of war prisoners (which …