Constitutional Law Commons^™

Racial Identity, Electoral Structures, And The First Amendment Right Of Association, Guy-Uriel Charles

Faculty Scholarship

No abstract provided.

Constitutional Existence Conditions And Judicial Review, Matthew D. Adler, Michael C. Dorf

Faculty Scholarship

Although critics of judicial review sometimes call for making the entire Constitution nonjusticiable, many familiar norms of constitutional law state what we call "existence conditions" that are necessarily enforced by judicial actors charged with the responsibility of applying, and thus as a preliminary step, identifying, propositions of sub-constitutional law such as statutes. Article I, Section 7, which sets forth the procedures by which a bill becomes a law, is an example: a putative law that did not go through the Article I, Section 7 process and does not satisfy an alternative test for legal validity (such as the treaty-making provision …

Constitutional Courts: Opportunities And Pitfalls, Donald L. Horowitz

Faculty Scholarship

This memorandum considers how to design constitutional courts to be most effective. With reference to examples such as Hungary, Italy, and Russia, the article examines dimensions including jurisdiction, appointment and tenure, and the effect of judicial declarations of unconstitutionality. The article also examines how a carefully designed and properly limited constitutional court can aid the creation of the rule of law, with specific reference to Afghanistan.

Civil Rights And Civil Liberties: Whose “Rule Of Law”?, William W. Van Alstyne

Faculty Scholarship

No abstract provided.

Constitutional Borrowing And Nonborrowing, Lee Epstein, Jack Knight

Faculty Scholarship

No abstract provided.

What Exactly Is Racial Diversity?, Devon W. Carbado, Mitu Gulati

Faculty Scholarship

No abstract provided.

Stubbornness Of Pretexts, Daniel B. Yeager

Faculty Scholarship

This Article will reflect on (1) how the Whren v. United States failure to acknowledge what counts as a pretext accounts for the residual confusion as to whether or not Whren really has killed off the pretext argument in constitutional criminal procedure, and (2) the extent to which the Court in Sullivan compounded that failure, which I hope to lightly correct here by distinguishing motives from intentions and then by elaborating the role that each plays, or at least should play, in Fourth Amendment jurisprudence.

Beyond Congress: The Study Of State And Local Legislatures, Richard Briffault

Faculty Scholarship

I'd like to thank the Journal of Legislation and Public Policy for inviting me back to N.Y.U. I am particularly grateful to have the opportunity to sit between and learn from Bill Eskridge and Beth Garrett, who have once again demonstrated in their comments today why they are leaders in this field. I understand now what it must have been like to be a student in a class with Eskridge as the professor and Garrett as a fellow student – can you imagine what an experience that must have been?

I am going to focus my remarks on state and …

Essay: Pledging Allegiance, Michael K. Steenson

Faculty Scholarship

This Essay focuses on the Pledge of Allegiance requirement and its place in public schools. It begins with an analysis of a typical, but certainly not isolated, approach of the Minnesota Legislature, following September 11, in passing a bill that required recitation of the Pledge. This Essay then moves to a discussion of the events surrounding the 1943 United States Supreme Court decision in West Virginia State Board of Education v. Barnette and how Barnette has subsequently been interpreted. Finally, this Essay discusses the probable impact of the Minnesota Constitution on the Pledge Bill, should it pass in this legislative …

The (Un)Favorable Judgment Of History: Deportation Hearings, The Palmer Raids, And The Meaning Of History, Harlan G. Cohen

Faculty Scholarship

As Americans respond to the events of September 11, 2001, they are being forced to contemplate their place in American history-past, present, and future. This has become particularly stark in the fight over secret deportation hearings. Following September 11, Attorney General John Ashcroft announced that the deportation hearings of "special interest" aliens would be closed to the public. Applying Richmond Newspapers's two-pronged logic-and-experience test, the Third and Sixth Circuits subsequently split over the constitutionality of the blanket closure. At the heart of their disagreement was the scarce history of deportation hearings and whether such hearings had been closed in the …

Decoupling 'Terrorist' From 'Immigrant': An Enhanced Role For The Federal Courts Post 9/11, Victor C. Romero

Faculty Scholarship

Since the terrorist attacks of September 11, 2001, Attorney General John Ashcroft has utilized the broad immigration power ceded to him by Congress to ferret out terrorists among noncitizens detained for minor immigration violations. Such a strategy provides the government two options: deport those who are not terrorists, and then prosecute others who are. While certainly efficient, using immigration courts and their less formal due process protections afforded noncitizens should trigger greater oversight and vigilance by the federal courts for at least four reasons: First, while the legitimate goal of immigration law enforcement is deportation, Ashcroft's true objective in targeting …

The Making Of The Second Rehnquist Court: A Preliminary Analysis, Thomas W. Merrill

Faculty Scholarship

The Supreme Court is implicitly assumed to have a certain unity of character under each Chief Justice. Hence, we refer to the "Marshall Court," the "Warren Court," and the "Rehnquist Court." A closer look at history reveals that this assumption of a natural Court defined by the tenure of each Chief Justice is often misleading. The Marshall Court had a different character late in its life than it did in its early years. Similarly, the Warren Court became distinctively more liberal and activist after 1962 when Felix Frankfurter retired and was replaced by Arthur Goldberg.

Although the Rehnquist Court is …

Reforming Campaign Finance Reform: A Review Of Voting With Dollars, Richard Briffault

Faculty Scholarship

On March 27, 2002, President George W. Bush signed the Bipartisan Campaign Reform Act of 2002 ("BCRA") into law. The culmination of a six-year legislative and political struggle, BCRA works the most comprehensive change in federal campaign finance law in nearly three decades. BCRA addresses a broad range of issues, including soft money, issue-advocacy advertising, fundraising on federal property, campaign activities of foreign nationals, and penalties for violation of campaign finance laws. Enacted in the face of intense political opposition, BCRA, if it stands up in court, is a significant reform achievement.

Or is it? BCRA closely follows the main …

Emotional Harm In Housing Discrimination Cases: A New Look At A Lingering Problem, Victor M. Goode, Conrad Johnson

Faculty Scholarship

With the United States Supreme Court's condemnation of legal segregation in Brown v. Board of Education in 1954, and a vigorous civil rights movement that led to the passage of the 1964 Civil Rights Act, the nation entered the beginning of a new era in race relations. This, and future civil rights legislation, would be characterized by the development of a national agenda for ending discrimination and promoting equality. One area that was not included in this initial congressional effort, but later found its way into the legislative agenda, was the subject of housing discrimination. Despite the relatively few debates …

What Did They Do And What Does It Mean? The Three-Judge Court's Decision In Mcconnell V. Fec And The Implications For The Supreme Court, Richard Briffault

Faculty Scholarship

My role at this symposium is to provide a brief overview of the three-judge court's decision in McConnell v. FEC, review the opinions, piece together what the court actually decided, and see how the Bipartisan Campaign Reform Act of 2002 ("BCRA") now stands. I will try to do that briefly, while giving a few general comments about what the court's opinions tell us about the state of campaign finance law today. As a preliminary matter, the three-judge court's opinions provide us with two radically different world views – almost two different intellectual universes – for thinking about campaign finance …

A Public Laboratory Dewey Barely Imagined: The Emerging Model Of School Governance And Legal Reform, James S. Liebman, Charles F. Sabel

Faculty Scholarship

The American public school system is in the midst of a vast and promising reform. The core architectural principle of the emergent system is the grant by higher-level authorities – federal government, states, and school districts – to lower level ones of autonomy to pursue the broad goal of improving education. In return, the local entities – schools, districts, and states – provide the higher ones with detailed information about their goals, how they intend to pursue them, and how their performance measures against their expectations. The core substantive commitment of the emergent system is the provision to all students, …

The Federal No Child Left Behind Act And The Post-Desegregation Civil Rights Agenda, James S. Liebman, Charles F. Sabel

Faculty Scholarship

Despite many deficiencies, the No Child Left Behind Act ("NCLB" or "Act") extends to the federal level and diffuses to the states an innovative system of publicly monitored decentralization of school governance known as the "New Accountability." This Article argues that, given background changes in the understanding of effective classroom teaching, accountability systems of the type imposed by the NCLB can enable willing school districts to build the capacity for school-level reform upon which the ultimate improvement of public schooling depends. It claims further that activists can accelerate the reforms and ensure respect for the requirements of racial and economic …

Establishing Religious Ideas: Evolution, Creationism, And Intelligent Design, Kent Greenawalt

Faculty Scholarship

In this article, I first sketch the basic conflict between evolutionary theory and creationism and describe the opposition of creationists to the teaching of standard evolutionary theory. I then state the basic educational and constitutional questions

about evolution, standard creationism, and "intelligent design." After exploring of five fundamental premises that, in combination, generate the most troubling questions about science, religion, and the public schools, I turn to claims of miracles. Like assertions that God has intervened in natural processes of development, these claims suppose that God transcends or violates scientific principles; their investigation suggests that scientific principles; their investigation suggests …

The Disfavored Constitution: State Fiscal Limits And State Constitutional Law, Richard Briffault

Faculty Scholarship

The dominant theme in the resurgent state constitutional jurisprudence of the last quarter-century has been the effort of many scholars and jurists to find in state constitutions a progressive alternative to the conservative turn federal constitutional doctrine has taken in the Burger and Rehnquist eras. Following the tone set by Justice William Brennan's path-breaking 1977 article in the Harvard Law Review, the state constitutional law literature has sought a more expansive protection of civil liberties through state constitutional provisions dealing with criminal law and procedure, freedom of expression, and equality, and to ground positive rights to public services in state …

Supreme Court Review Of State-Court Determinations Of State Law In Constitutional Cases, Henry Paul Monaghan

Faculty Scholarship

The decision in Bush v. Gore and particularly Chief Justice Rehnquist's concurring opinion were widely criticized for their unwarranted intrusion upon the "authoritative" status of the Florida Supreme Court in determining the meaning of Florida election law. This Article rejects the merits of that criticism. It proposes the thesis that the Supreme Court has ancillary jurisdiction to review state-court determinations of state law in cases where the Constitution or ftderal law imposes a duty of fidelity to prior state law (t₁) and the claim is that the state court materially and impermissibly departed from that law at a …

The First "Establishment" Clause: Article Vii And The Post-Constitutional Confederation, Gary S. Lawson, Guy I. Seidman

Faculty Scholarship

It is a great pleasure for academics to realize that fellow scholars sometimes read their work and take it seriously. We are genuinely flattered that Vasan Kesavan has chosen to comment on our article, When Did the Constitution Become Law?,1 and has done so with the intellectual rigor and generosity of spirit that characterizes his prodigious scholarship. 2 We are grateful to Mr. Kesavan for engaging us and grateful to the Notre Dame Law Review for accommodating the dialogue.

Campaign Finance Disclosure And Section 527 Of The Code: A Look At The District Court's Opinion In National Federation Of Republican Assemblies, Donald B. Tobin

Faculty Scholarship

This report examines the decision of the U.S. District Court for the Southern District of Alabama in National Federation of Republican Assemblies v. United States, which dealt with section 527 political organizations.

Self-Definition In The Constitution Of Faith And Family, David D. Meyer

Faculty Scholarship

No abstract provided.

The Significance Of Border Crossings: Lopez, Morrison And The Fate Of Congressional Power To Regulate Goods, And Transactions Connected With Them, Based On Prior Passage Through Interstate Commerce, Gordon G. Young

Faculty Scholarship

No abstract provided.

Free Speech Rationales After September 11th: The First Amendment In Post-World Trade Center America, Marin R. Scordato, Paula A. Monopoli

Faculty Scholarship

No abstract provided.

Antebellum Perspectives On Free Speech, Mark A. Graber

Faculty Scholarship

Book review of Free Speech: "The People's Darling Privilege": Struggles for Freedom of Expression in American History by Michael Kent Curtis (Duke University Press, 2000).

Lurking In The Shadows Of Judicial Process: Special Masters In The Supreme Court's Original Jurisdiction Cases, Anne-Marie Carstens

Faculty Scholarship

No abstract provided.

Enda Before It Starts: Section 5 Of The Fourteenth Amendment And The Availability Of Damages Awards To Gay State Employees Under The Proposed Employment Non-Discrimination Act, William D. Araiza

Faculty Scholarship

No abstract provided.

Constitutional Pluralism And Democratic Politics: Reflections On The Interpretive Approach Of Baker V. Carr, Guy-Uriel Charles

Faculty Scholarship

Baker v. Carr is one of the Supreme Court's most important opinions, not least because its advent signaled the constitutionalization of democracy. Unfortunately, as is typical of the Court's numerous forays into democratic politics, the decision is not accompanied by an apparent vision of the relationship among democratic practice, constitutional law, and democratic theory. In this Article, Professor Charles revisits Baker and provides several democratic principles that he argues justifies the Court's decision to engage the democratic process. He examines the decision from the perspective of one of its chief contemporary critics, Justice Frankfurter. He sketches an approach, described as …

To What Extent Does The Power Of Government To Determine The Boundaries And Conditions Of Lawful Commerce Permit Government To Declare Who May Advertise And Who May Not?, William W. Van Alstyne

Faculty Scholarship

No abstract provided.