Constitutional Law Commons^™

The Politics Of Preclearance, Luis Fuentes-Rohwer, Guy-Uriel E. Charles

Michigan Journal of Race and Law

This Essay examines recent charges of political motivation against the Department of Justice and its enforcement of the Voting Rights Act. These accusations appear well-deserved, on the strength of the Department's recent handling of the Texas redistricting submission and Georgia's voting identification requirement. This Essay reaches two conclusions. First, it is clear that Congress wished to secure its understanding of the Act into the future through its preclearance requirement. Many critics of the voting rights bill worried about the degree of discretion that the legislation accorded the Attorney General. Supporters worried as well, for this degree of discretion might lead …

Education And Labor Relations: Asian Americans And Blacks As Pawns In The Furtherance Of White Hegemony, Xiaofeng Stephanie Da

Michigan Journal of Race and Law

Asian Americans and Blacks have been, and continue to be, racialized relative to each other in our society. Asian Americans and Blacks have come to occupy marginalized positions as the polarized ends on the economic spectrums of education and labor relations, with an expanding "Whiteness" as the filler in the middle as Whites manipulate the differing interests of both subordinated groups to align with White (the dominant group's) interests. Although Whites purport to champion the interests of one subordinate group over the other, in reality the racialization of Asian Americans and Blacks in our country is rooted in the preservation …

Double-Consciousness In Constitutional Adjudication, Richard A. Primus

Articles

Constitutional theorists are familiar with epistemic and consequentialist reasons why judges might allow their decision making to be shaped by strongly held public opinion. The epistemic approach treats public opinion as an expert indicator, while the consequentialistapproach counsels judges to compromise legally correct interpretations so as not to antagonize a hostile public. But there is also a third reason, which we can think ofas constitutive. In limited circumstances, the fact that the public strongly holds a given view can be one of the factors that together constitute the correct answer to a constitutional question. In those circumstances, what the public …

Holmes V. South Carolina Upholds Trial By Jury, Samuel R. Gross

Articles

Bobby Lee Holmes was convicted of a brutal rape-murder and sentenced to death. The only evidence that connected him to the crime was forensic: a palm print, and blood and fiber evidence. (Biological samples taken from the victim for two rape kits were compromised and yielded no identifiable evidence.) Holmes claimed that the state's forensic evidence was planted and mishandled, and that the rape and murder were committed by another man, Jimmy McCaw White. At a pretrial hearing three witnesses testified that they saw White near the victim's house at about the time of the crime, and four others testified …

Structural Reform In Criminal Defense: Relocating Ineffective Assistance Of Counsel Claims, Eve Brensike Primus

Articles

This Article suggests a structural reform that could solve two different problems in criminal defense representation. The first problem is that the right to effective trial counsel lacks a meaningful remedy. Defendants are generally not permitted to raise ineffective assistance of counsel claims until collateral review. Given that collateral review typically occurs years after trial, most convicted defendants have completed their sentences by that time and therefore have little incentive to pursue ineffectiveness claims. Moreover, there is no right to counsel on collateral review, and it is unrealistic to expect defendants to navigate the complicated terrain of an ineffectiveness claim …

Congressional Power To Extend Preclearance: A Response To Professor Karlan, Ellen D. Katz

Articles

Is the core provision of the Voting Rights Act unconstitutional? Many people now think that the Act's preclearance requirement is invalid, but Professor Karlan is not among them. In part, that is because she is not convinced the problems that originally motivated Congress to impose preclearance have been fully remedied. Professor Karlan points out the many ways section 5 of the Voting Rights Act (VRA) shapes behavior in the jurisdictions subject to the statute--not just by blocking discriminatory electoral changes, but also by influencing less transparent conduct by various political actors operating in these regions. Do not be so sure, …

The D'Oh! Of Popular Constitutionalism, Neal Devins

Michigan Law Review

This Review will be divided into three parts. Part I will both summarize The Most Democratic Branch and highlight some of the difficulties that the Supreme Court would face in implementing Rosen's decision-making model. In particular, by allowing the Court to invalidate laws for a host of "antidemocratic" reasons, Rosen's matrix does not constrain the Court in a predictable way. Part II will examine some of the empirical evidence about public attitudes toward the Supreme Court, including public awareness of Supreme Court decisions. I will contend that the Court cannot look to the people to sort out the Constitution's meaning …

When Courts Shouldn't Take The Initiative: Section 2 Of The Voting Rights Act, Initiative Petitions, And Operation King's Dream, Francesca Ambrosio

Michigan Law Review

This Note argues that interpreting section 2 to exclude initiative proposals during their circulation phase is the only way to avoid insurmountable statutory construction problems and constitutional objections. It grounds the theoretical discussion of the VRA in an analysis of how the court applied section 2 in Operation King's Dream. Part I provides the legal landscape of a section 2 claim, including relevant legislative history and the essential elements of a successful claim. Part II contends that because no voting takes place during the petition phase of a proposal, petition circulation can neither deny nor abridge the right to …

Crawford, Davis, And Way Beyond, Richard D. Friedman

Articles

Until 1965, the Confrontation Clause of the Sixth Amendment to the United States Constitution hardly mattered. It was not applicable against the states, and therefore had no role whatsoever in the vast majority of prosecutions. Moreover, if a federal court was inclined to exclude evidence of an out-of-court statement, it made little practical difference whether the court termed the statement hearsay or held that the evidence did not comply with the Confrontation Clause.

Forfeiture Of The Confrontation Right After Crawford And Davis, Richard D. Friedman

Articles

So my topic this morning is on forfeiture of the confrontation right, which I think plays a central role in confrontation doctrine. And to try to present that, let me state the entirety of confrontation doctrine as briefly as I can. This is, at least, what I think the doctrine is and what it can be: A testimonial statement should not be admissible against an accused to prove the truth of what it asserts unless the accused either has had or will have an opportunity to confront the witness-which should occur at trial unless the witness is then unavailable-or has …

On The Fortieth Anniversary Of The Miranda Case: Why We Needed It, How We Got It--And What Happened To It, Yale Kamisar

Articles

Last year (the year I gave the talk on which this article is based) marked the fortieth anniversary of Miranda v. Arizona,' one of the most praised, most maligned-and probably one of the most misunderstood-Supreme Court cases in American history. It is difficult, if not impossible, to evaluate Miranda without looking back at the test for the admissibility of confessions that preceded it.

Les Papiers De La Liberté: Une Mère Africaine Et Ses Enfants À L'Époque De La Révolution Haïtienne, Rebecca Scott, Jean M. Hebrard

Articles

During the Louisiana Constitutional Convention of 1867-1868, the young Edouard Tinchant proposed measures to protect the civil rights of women. He suggested that the State adopt legal measures to allow all women, regardless of race or color, to more easily bring complaints in the event of a breach of a marriage promise. He also proposed additional measures to prevent women from being forced into “concubinage” against their will. While that constitutional Convention was open to men of color and guaranteed a number of the rights for which Tinchant and his friends were fighting, the assembly did not adopt his propositions …

Federalism And The Commerce Clause: A Comparative Perspective, Reuven S. Avi-Yonah

Articles

The U.S. Supreme Court has on numerous occasions addressed the constitutionality of state taxes under the U.S. Constitution (most often under the Commerce Clause, but sometimes under the Equal Protection and Due Process Clauses). In general, the Supreme Court has granted wide leeway to the states to adopt any tax system they wish, only striking down the most egregious cases of discrimination against out-of-state residents. Thus, for example, the Court has generally refused to intervene against state tax competition to attract business into the state. It has twice upheld a method of calculating how much income of a multinational enterprise …

The Kerr Principle, State Action, And Legal Rights, Donald J. Herzog

Articles

A Baltimore library refused to admit Louise Kerr to a training program because she was black. Not that it had anything against blacks, but its patrons did. When Kerr launched a civil suit against the library alleging a violation of equal protection of the laws, the courts credited the library's claim that it had no racist purpose, but Kerr still prevailed-even though the case occurred before Title VII and Brown v. Board of Education. Here a neutral and generally applicable rule ("serve the patrons"), when coupled with particular facts about private parties (the white patrons dislike blacks), yielded an …

Crawford And Davis: A Personal Reflection, Richard D. Friedman

Articles

I have to say that when I stood up to argue Hammon I felt the wind at my back. I was basically a lawyer with an easy case, and there wasn't anything particularly unpredictable at the argument of Hammon. Now it got a little bit interesting, as I will explain later, because to a certain extent I was trying to argue the other case as well. But Hammon itself was sort of ordinary, normal law.

Party On: The Right To Voluntary Blanket Primaries, Margaret P. Aisenbrey

Michigan Law Review

Political parties have unique associational rights. In party primaries, party members associate to further their common political beliefs, and more importantly, to nominate candidates. These candidate are the "standard bearer[s]" for the political party-the people who "best represent[ ] the party's ideologies and preferences." The primary represents a "crucial juncture at which the appeal to common principles may be translated into concerted action, and hence to political power in the community." Because the primary is such a critical moment for the political party, the party's asso-ciational rights are most important at this time.

The Glucksberg Renaissance: Substantive Due Process Since Lawrence V. Texas, Brian Hawkins

Michigan Law Review

On their faces, Washington v. Glucksberg and Lawrence v. Texas seem to have little in common. In Glucksberg, the Supreme Court upheld a law prohibiting assisted suicide and rejected a claim that the Constitution protects a "right to die"; in Lawrence, the Court struck down a law prohibiting homosexual sodomy and embraced a claim that the Constitution protects homosexual persons' choices to engage in intimate relationships. Thus, in both subject matter and result, Lawrence and Glucksberg appear far apart. The Lawrence Court, however, faced a peculiar challenge in reaching its decision, and its response to that challenge brings …

Burkean Minimalism, Cass R. Sunstein

Michigan Law Review

Burkean minimalism has long played an important role in constitutional law. Like other judicial minimalists, Burkeans believe in rulings that are at once narrow and theoretically unambitious; what Burkeans add is an insistence on respect for traditional practices and an intense distrust of those who would renovate social practices by reference to moral or political reasoning of their own. An understanding of the uses and limits of Burkean minimalism helps to illuminate a number of current debates, including those involving substantive due process, the Establishment Clause, and the power of the president to protect national security. Burkean minimalists oppose, and …

Function Over Form: Reviving The Criminal Jury's Historical Role As A Sentencing Body, Chris Kemmitt

University of Michigan Journal of Law Reform

This Article argues that the Supreme Court, as evinced by its recent spate of criminal jury decisions, has abandoned the criminal jury known to the Founders and, in so doing, has severely eroded the protections intended to inhere in the Sixth Amendment jury trial right. It then proposes one potential solution to this problem.

According to the Supreme Court, this recent line of cases has been motivated by the need to preserve the "ancient guarantee" articulated in the Sixth Amendment under a new set of legal circumstances. Unfortunately, the Court misinterprets the ancient guarantee that it is ostensibly attempting to …

The Nsa Domestic Surveillance Program: An Analysis Of Congressional Oversight During An Era Of One-Party Rule, Tara M. Sugiyama, Marisa Perry

University of Michigan Journal of Law Reform

On December 16, 2005, the New York Times sounded a fire alarm when it revealed that, in response to the September 11, 2001 attacks, President George W Bush had issued a secret executive order permitting the National Security Agency (NSA) to conduct warrantless surveillance on individuals to unearth nascent terrorist activity. Congress responded to the disclosure of the NSA domestic surveillance program largely by shirking its oversight duties. This Note argues that when a single party controls both the executive and the legislative branches, the fire-alarm model fails to provide sufficient congressional oversight. Short of future elections altering the balance …

The Neglected Political Economy Of Eminent Domain, Nicole Stelle Garnett

Michigan Law Review

This Article challenges a foundational assumption about eminent domain- namely, that owners are systematically undercompensated because they receive only fair market value for their property. In fact, scholars may have overstated the undercompensation problem because they have focused on the compensation required by the Constitution, rather than on the actual mechanics of the eminent domain process. The Article examines three ways that "Takers" (i.e., nonjudicial actors in the eminent domain process) minimize undercompensation. First, Takers may avoid taking high subjective value properties. (By way of illustration, Professor Garnett discusses evidence that Chicago's freeways were rerouted in the 1950s to avoid …

Concurring In Part & Concurring In The Confusion, Sonja R. West

Michigan Law Review

When a federal appellate court decided last year that two reporters must either reveal their confidential sources to a grand jury or face jail time, the court did not hesitate in relying on the majority opinion in the Supreme Court's sole comment on the reporter's privilege-Branzburg v. Hayes. "The Highest Court has spoken and never revisited the question. Without doubt, that is the end of the matter," Judge Sentelle wrote for the three-judge panel of the Circuit Court of Appeals for the District of Columbia. By this declaration, the court dismissed with a wave of its judicial hand the arguments …

The Current Landscape Of Race: Old Targets, New Opportunities, Richard Delgado

Michigan Law Review

It is difficult enough identifying areas within a current field of scholarship that are underdeveloped and in need of further attention. In science, one thinks of missing elements in the periodic table or planets in a solar system that our calculations tell us must be there but that our telescopes have not yet spotted. In civil-rights law, one thinks of such areas as women's sports or the problems of intersectional groups, such as women of color or gay black men. One also thinks of issues that current events are constantly thrusting forward, such as discrimination against Arabs or execution of …

American Indians, Crime, And The Law, Kevin K. Washburn

Michigan Law Review

This Article evaluates the federal Indian country criminal justice regime, not against norms of Indian law and policy, but against those of criminal law and policy. Specifically, this Article evaluates the federal constitutional norms that lie at the heart of American criminal justice and that are designed to ensure the legitimacy of federal criminal trials. Toward that end, Part I presents a critical description of key facets of the federal Indian country criminal justice system. Part II begins the critical evaluation by evaluating a key institutional player in the federal system, the federal prosecutor. It highlights the handicaps faced by …

Davis/Hammon, Domestic Violence, And The Supreme Court: The Case For Cautious Optimism, Joan S. Meier

Michigan Law Review First Impressions

The Supreme Court’s consolidated decision in Davis v. Washington and Hammon v. Indiana offers something for everyone: by “splitting the difference” between the two cases—affirming one and reversing the other—the opinion provides much grist for advocates’ mills on both sides of this issue. While advocates for defendants’ rights are celebrating the opinion’s continued revitalization of the right to confrontation, which began in Crawford v. Washington, advocates for victims have cause for celebration as well: the decision is notable for its reflection of the Court’s growing—albeit incomplete— awareness and understanding of the dynamics of domestic violence and their implications for justice. …

Stevens's Ratchet: When The Court Should Decide Not To Decide, Joel A. Flaxman

Michigan Law Review First Impressions

Hidden underneath the racy death penalty issues in Kansas v. Marsh lurks a seemingly dull procedural issue addressed only in separate opinions by Justices Stevens and Scalia: whether the Court should have heard the case in the first place. As he did in three cases from the Court’s 2005 term, Justice Stevens argued in Marsh that the Court has no legitimate interest in reviewing state court decisions that overprotect federal constitutional rights. Instead, the Supreme Court should exercise its certiorari power to tip the scales against states and in favor of individuals. Granting certiorari in Marsh, Stevens argued, was not …

The High Court Remains As Divided As Ever Over The Death Penalty, George H. Kendall

Michigan Law Review First Impressions

More than three decades ago, in Furman v. Georgia, a sharply divided Supreme Court struck down all existing capital punishment schemes be-cause the results they generated were arbitrary, discriminatory, and unreasoned. No member of that Court remains on the Court today, and the Court has grown increasingly conservative ever since. Nevertheless, impor-tant questions concerning the administration of capital punishment continue to wrought deep divisions within the Court, for instance in determining whether racial bias influences the system, in determining the sufficiency of new evidence of innocence to justify review of a defaulted claim in habeas corpus proceedings, in determining a …

Refining Crawford: The Confrontation Claus After Davis V. Washington And Hammon V. Indiana, Andrew C. Fine

Michigan Law Review First Impressions

Clarification of the Supreme Court’s newly minted interpretation of the Confrontation Clause was desperately needed, and Davis v. Washington and Hammon v. Indiana promised to provide it. Two terms earlier, in Crawford v. Washington, the Supreme Court had worked a revolutionary transformation of Confrontation Clause analysis by overruling Ohio v. Roberts and severing the link between hearsay jurisprudence and the Clause. Crawford was hailed by the criminal defense bar, since it seemed to presage a sharp reduction in the frequency of so-called “victimless” trials by holding that “testimonial” hearsay, no matter how reliable, was constitutionally inadmissible in the absence of …

Davis And Hammon: A Step Forward, Or A Step Back?, Tom Lininger

Michigan Law Review First Impressions

Prosecutors, defense attorneys, and lower court judges hoped that the Supreme Court’s ruling in the consolidated cases of Davis v. Washington and Hammon v. Indiana (hereafter simply Davis) would provide a primer on testimonial hearsay. In retrospect, these hopes were somewhat unrealistic. The Davis ruling could not possibly clear up all the confusion that followed Crawford v. Washington, the landmark 2004 case in which the Court strengthened the right of the accused to confront declarants of testimonial hearsay. In Davis, the Court focused on the facts under review and developed a taxonomy that will be useful in similar cases, but …

Still "Left In The Dark": The Confrontation Clause And Child Abuse Cases After Davis V. Washington, Anthony J. Franze, Jacob E. Smiles

Michigan Law Review First Impressions

In his concurring opinion in Crawford v. Washington, Chief Justice Rehnquist criticized the majority for holding that the Confrontation Clause applies to “testimonial” statements but leaving for “another day” any effort to define sufficiently what “testimonial” means. Prosecutors and defendants, he said, “should not be left in the dark in this manner.” Over the next two years, both sides grappled with the meaning of testimonial, each gleaning import from sections of Crawford that seemingly proved their test was the right one. When the Court granted certiorari in Davis v. Washington and Hammon v. Indiana (hereinafter Davis), hopes were high that …