Constitutional Law Commons^™

The Casey Standard For Evaluating Facial Attacks On Abortion Statutes, John Christopher Ford

Michigan Law Review

Since the Supreme Court declared in 1973 that the Constitution grants women a limited right to an abortion, the Justices have decided abortion cases with reference to such weighty matters as religious freedom, the disadvantaged position of women in society, and the proper role of the judiciary. Understandably, the Supreme Court's writings on abortion deal extensively with these large themes. The Court, and certainly others, view abortion cases as rivaling Brown v. Board of Education in their importance to the nation. While the Court has focused on the big issues, however, it has neglected an equally important, if less emotionally …

Restoring Rights To Rites: The Religious Motivation Test And The Religious Freedom Restoration Act, Steven C. Seeger

Michigan Law Review

This Note argues that the religious motivation test best secures the religious liberty guaranteed by the Constitution and the RFRA. Part I examines the text and legislative history of the Act and establishes that Congress intended to protect religiously motivated practices. Part II argues that the free exercise case law prior to Smith, to which the RFRA explicitly appeals, did not require litigants to prove centrality or compulsion. Part III demonstrates that the religious motivation test protects the full spectrum of religious practices and religious groups, unlike the centrality test and the compulsion test. Part IV illustrates that the motivation …

Race-Conscious Diversity Admissions Programs: Furthering A Compelling Interest, Marty B. Lorenzo

Michigan Journal of Race and Law

This Article argues that narrowly tailored, race-conscious admissions programs can be employed to achieve a more diverse student body and consequently a more enlightened and egalitarian society. An admissions body which looks beyond traditional academic indicators and explores the whole person of each applicant will matriculate a group of students with a wide variety of race, gender, class and other backgrounds, thereby fostering a robust exchange of ideas among these students. Pointing to the enduring precedential value of Bakke as well as the ideological makeup of the Supreme Court, this Article asserts that the Courts would likely uphold a program …

Cultivating A Seedling Charter: South Africa's Court Grows Its Constitution, Margaret A. Burnham

Michigan Journal of Race and Law

As South Africa emerges from the vestiges of apartheid, its Constitutional Court struggles to develop a jurisprudence that reflects the lasting ideals of a constitutional democracy. This Article examines the Court's use of international and foreign law in developing a unique form of constitutional jurisprudence. It argues that the Constitutional Court is in the process of developing an innovative form of decision-making that effectively combines domestically derived principles of justice with those developed in the international forum. This Article concludes that reliable methods of adjudication are firmly entrenched in the South African legal system and that its constitutional jurisprudence should …

The Meaning Of "Advice And Consent": The Senate's Constitutional Role In Treatymaking, Howard R. Sklamberg

Michigan Journal of International Law

This article analyzes the role that the Constitution assigns to the Senate in treatymaking and the implications of this role on the relationship between the President and the Senate. Part I examines the meaning of "advice and consent" in the Treaty Clause. It discusses the origins of the phrase "advice and consent," the history of the drafting of the Treaty Clause, and the implications of the Framers' decision to include the Treaty Clause in Article II of the Constitution.

Race-Based Affirmative Action And International Law, Jordan J. Paust

Michigan Journal of International Law

International law, which is part of the supreme law of the United States, provides significant affirmation of the legal propriety of race-based affirmative action. At least two human rights treaties ratified by the United States are particularly useful in identifying the acceptability of certain measures of affirmative action as well as the duty to take special and concrete measures of affirmative action in certain circumstances. Such a duty is not merely based in supreme federal law, relevant to decision-making at federal and state levels, but is also contained in federal policy relevant to the constitutional precept of federal preemption. Treaty-based …

Law And Religion In Israel And Iran: How The Integration Of Secular And Spiritual Laws Affects Human Rights And The Potential For Violence, S. I. Strong

Michigan Journal of International Law

Part I of this article provides a brief sketch of the principles of the two majority religions at issue in this discussion and an overview of the history of both Israel and Iran. It explains why each nation has chosen to structure itself as it has and why the imposition of U.S.-style secularism would be an inappropriate method of dealing with the religio-legal conflict in the two societies. Part II compares the fundamental or constitutional laws of the two nations by analyzing the provisions, policies, and practices most influenced by religion. After identifying and analyzing the laws themselves in Part …

An Analysis Of The Supreme Court's Reliance On Racial "Stigma" As A Constitutional Concept In Affirmative Action Cases, Andrew F. Halaby, Stephen R. Mcallister

Michigan Journal of Race and Law

The Article's focus is confined to discussions of race-based affirmative action; it does not consider stigmatization arguments in the context of discrimination involving gender or disabilities, for example. Further, the Article's scope is limited to the stigmatization issue as between Whites and African Americans. Although similar issues exist with respect to other ethnic or racial groups, we view the White/African American paradigm as providing the clearest framework for analysis. Moreover, the cases of Plessy v. Ferguson and Brown v. Board of Education, joint progenitors of stigmatization as a concept having constitutional significance in interpreting the Equal Protection Clause of …

Toward A South African Administrative Justice Act, Michael Asimow

Michigan Journal of Race and Law

Section 33 of South Africa's Constitution provides fundamental principles of administrative justice. It also requires Parliament to adopt an Administrative Justice Act. This Article contends that without enactment of such legislation Section 33 will be ineffective in practice and may prove to be an obstacle to achieving the economic and social objectives of the Constitution. In addition, such legislation is essential to preserving the legitimacy and the effectiveness of the Constitutional Court.

South Africa's Amnesty Process: A Viable Route Toward Truth And Reconciliation, Emily H. Mccarthy

Michigan Journal of Race and Law

The road to democracy for South Africa was based on compromise. One of the most significant compromises made by the negotiators was the acceptance of an amnesty process culminating in the passage of the Promotion of National Unity and Reconciliation Act of 1995. The Act grants full indemnity from criminal and civil prosecution to anyone affiliated with a political organization who committed an "act associated with a political objective" and who fully discloses all relevant facts. The purpose of the Act is twofold: to establish the "truth" about the apartheid past and to promote "reconciliation" among South Africans. Unfortunately, such …

Emphasizing The Constitutional In Constitutional Torts (Symposium On Section 1983), Christina B. Whitman

Articles

It has been surprisingly difficult to extricate constitutional litigation from torts. In this Article I would like to resist once more' the idea that tort doctrines and tort categories provide a useful model for constitutional decision-making. When it comes to deciding the merits of a constitutional claim, torts is a distraction. That is the case whether torts serves as a positive model for the constitutional cause of action or as an alternative to be shunned. As part of this argument, I also question the claim2 that Monroe v. Pape,3 the 1961 case that opened the door for damages relief under …

Confrontation And The Definition Of Chutzpa, Richard D. Friedman

Articles

You may know the standard illustration of chutzpa - the man who kills both his parents and then begs the sentencing court to have mercy on an orphan. In this article, I discuss a case of chutzpa that is nearly as outlandish - the criminal defendant who, having rendered his victim unavailable to testify, contends that evidence of the victim's statement should not be admitted against him because to do so would violate his right to confront her. I contend that in a case like this the defendant should be deemed to have forfeited the confrontation right. On the same …

A More Sensible Approach To Regulating Independent Expenditures: Defending The Constitutionality Of The Fed's New Express Advocacy Standard, Michael D. Leffel

Michigan Law Review

Campaign finance reformers argue that the "unholy alliance of private money and public elections" has created "a crisis of confidence in our elected officials." The now-deceased campaign reform advocate Philip M. Stem summed up the role of money in campaigns this way: "[M]oney-power has replaced people-power as the driving force in American politics and the determinant of electoral victory." One form of "money-power" in elections that received a great deal of attention in the last election cycle was "independent expenditures." Independent expenditures are funds spent by interested individuals or groups - usually in the form of television or radio advertisements …

Determining Ripeness Of Substantive Due Process Claims Brought By Landowners Against Local Governments, David S. Mendel

Michigan Law Review

Landowners who sustain economic harm from arbitrary and capricious applications of land use regulations may sue the local government entities responsible for applying those regulations under 42 U.S.C. § 1983, alleging that the local government entities deprived them of substantive due process in violation of the Fourteenth Amendment. A landowner who brings this claim - an "as-applied arbitrary and capricious substantive due process" claim - may in appropriate cases seek declaratory and injunctive relief, damages, and attorney's fees. Despite controversy among courts and commentators over both the definition of property interests protected by the Due Process Clause and the standard …

The First Amendment Comes Of Age: The Emergence Of Free Speech In Twentieth-Century America, G. Edward White

Michigan Law Review

As the number of issues perceived as having First Amendment implications continues to grow, and the coterie of potential beneficiaries of First Amendment protection continues to widen - including not only the traditional oppressed mavericks and despised dissenters but some rich and powerful members from the circles of political and economic orthodoxy - alarms have been sounded. Another period of stocktaking for free speech theory appears to be dawning, and some recent commentators have proposed a retrenchment from the long twentieth- century progression of increasingly speech-protective interpretations of the First Amendment. At the heart of the retrenchment literature lies the …

Attainder And Amendment 2: Romer's Rightness, Akhil Reed Amar

Michigan Law Review

Call me silly. In fact, call me terminally silly. For despite Justice Scalia's remarkably confident claim, I believe, and shall try to prove below, that the Romer Court majority opinion invalidating Colorado's Amendment 2 was right both in form and in substance, both logically and sociologically. I stress "form" and "logic" at the outset because I share Justice Scalia's belief in the importance of these things in constitutional adjudication. I also share his commitment to constitutional text, history, and structure, and his suspicion of "free-form" constitutionalism. And so I shall highlight the text, history, and spirit of a constitutional clause …

Is Amendment 2 Really A Bill Of Attainder? Some Questions About Professor Amar's Analysis Of Romer, Roderick M. Hills Jr.

Michigan Law Review

As I first discovered as a law student in Professor Amar's classes on legal history and federal courts, it is generally an intellectual treat to listen to Professor Amar's legal analysis, even when he is attacking one's own arguments. So my pleasure at reading Professor Amar's analysis of the Court's decision in Romer v. Evans was only partly dampened by his disapproval of the respondents' brief that I and other plaintiffs' counsel filed with the Court. According to Amar, this respondents' brief provided the Court with "so little help" that it had to rely on an entirely different and much …

The Limits Of Legal Language: Decisionmaking In Capital Cases, Jordan M. Steiker

Michigan Law Review

To make the case for the proposed changes, I will first describe briefly in Parts I and II the structure of pre- and post-Furman capital decisiorurtaking and the weaknesses of those approaches. I then will set forth in Part III the specific rationales for each proposed reform.

The scheme I propose raises a significant constitutional question. Can the death penalty be retained as a punishment if we abandon the pretense of providing meaningful guidance through detailed sentencing instructions? Would the reestablishment of relatively unstructured penalty phase deliberations similar to, but also importantly different from, those characteristic of pre-Furman …

A Peculiar Privilege In Historical Perspective: The Right To Remain Silent, Albert W. Alschuler

Michigan Law Review

Supreme Court decisions have vacillated between two incompatible readings of the Fifth Amendment guarantee that no person "shall be compelled in any criminal case to be a witness against himself." The Court sometimes sees this language as affording defendants and suspects a right to remain silent. This interpretation - a view that countless repetitions of the Miranda warnings have impressed upon the public - asserts that government officials have no legitimate claim to testimonial evidence tending to incriminate the person who possesses it. Although officials need not encourage a suspect to remain silent, they must remain at least neutral toward …

David Shapiro's Adversary Statement On Federalism, Patrick E. Higginbotham

Michigan Law Review

A Review of David L. Shapiro, Federalism: A Dialogue

Words That Bind: Judicial Review And The Grounds Of Modern Constitutional Theory, John A. Drennan

Michigan Law Review

A Review of John Arthur, Words That Bind: Judicial Review and the Grounds of Modern Constitutional Theory

Progress And Constitutionalism, Robert F. Nagel

Michigan Law Review

A Review of Robin West, Progressive Constitutionalism: Reconstructing the Fourteenth Amendment

One Bite At The Apple: Reversals Of Convictions Tainted By Prosecutorial Misconduct And The Ban On Double Jeopardy, Rick A. Bierschbach

Michigan Law Review

This Note argues that the Double Jeopardy Clause bars retrial after reversals of convictions tainted by prosecutorial misconduct in the submission of evidence when two conditions are met: (1) the prosecutor intentionally introduced tainted evidence, and (2) excluding the tainted evidence would have left insufficient evidence at trial to support the defendant's conviction. This Note contends that this limited extension of double jeopardy protection is both mandated by the policies underlying the Double Jeopardy Clause and consistent with existing double jeopardy jurisprudence.

Pragmatism And Parity In Appointments, Yxta Maya Murray

Michigan Journal of Gender & Law

This review uses Carter's two foci as a springboard for analyzing the Article II, Section II appointment process. First, Carter's discussion of indecency in modern appointments may be a valuable theoretical insight into the process instead of a mere sociological observation. "Indecency" in appointments, or what is known as "borking" in Carter parlance, may also be a symptom of race and gender bias in the administration of the Article II, Section II power. To ameliorate the effects of this bias, I suggest the incorporation of pragmatism (a thread of philosophical and legal thought) and parity concepts into the existing appointments …

The Evolution Of Race In The Law: The Supreme Court Moves From Approving Internment Of Japanese Americans To Disapproving Affirmative Ation For African Americans, Reggie Oh, Frank Wu

Michigan Journal of Race and Law

As the Court suggests, the Korematsu precedent is crucial to the Adarand decision. In Adarand, the Court analyzes Korematsu in depth, acknowledging that its own judgment had been mistaken in the internment cases, instead of simply citing the decisions as it formally had done until the very recent past. The Court nevertheless fails to appreciate the differences between Korematsu and Adarand, and in particular the consequences of using "strict scrutiny" for all racial classifications. This essay explores the complex relation-ship between Korematsu and Adarand, and offers a critique of the reasoning used in both cases. The essay …

Drawing The Line On Incumbency Protection, Sally Dworak-Fisher

Michigan Journal of Race and Law

In an effort to fill the void in scholarly debate and legal analysis, this Note evaluates incumbency protection as a redistricting principle and analyzes its treatment in various court opinions. After arguing that protecting incumbents is not a legitimate redistricting objective, this Note illustrates how the Supreme Court and lower federal courts have been reluctant to pass judgment on incumbency protection. This Note contrasts this "hands-off" approach to the strict scrutiny afforded claims of racial gerrymandering and argues that such an approach enables incumbents to manipulate the Voting Rights Act for their self-interest. Additionally, this Note argues that incumbents, a …

Cabining The Constitutional History Of The New Deal In Time, G. Edward White

Michigan Law Review

A Review of William E, Leuchtenburg, The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt

The Reasons So Many People Support Physician-Assisted Suicide - And Why These Reasons Are Not Convincing, Yale Kamisar

Articles

It would be hard to deny that there is a great deal of support in this country-and ever-growing support-for legalizing physician-assisted suicide (PAS). Why is this so? I believe there are a considerable number of reasons. In this article, I shall discuss five common reasons and explain why I do not find any of them convincing.

Theorists' Belief: A Comment On The Moral Tradition Of American Constitutionalism, Jospeh Vining

Articles

The Moral Tradition of American Constitutionalism is one of those rare works that leads us to face, at the center of law and legal thought, the largest questions about human life and human purpose. There is a special reader's shudder, a certain gestural shift in the chair, reserved for that moment of realizing where one is being led-not to the edge, but to the center, so that the questions become insistent, and whatever we and others say and do in the face of them becomes our response to them.

Foreword, Louis H. Pollak

Michigan Law Review

Introduction to the Symposium Reflections on United States v. Lopez