Constitutional Law Commons^™

Playing Politics With Executions Abuse Of Executive Discretion, Joanmarie Davoli

Faculty Scholarship

No abstract provided.

Intended Injury: Transferred Intent And Reliance In Climate Change Fraud, Wes Henricksen

Faculty Scholarship

No abstract provided.

Corporate Social Responsibility, Casino Capitalism, And The Constitution Of Macau, Jason Buhi

Faculty Scholarship

No abstract provided.

Dreamers Interrupted: The Case Of The Rescission Of The Program Of Deferred Action For Childhood Arrivals, Rachel F. Moran

Faculty Scholarship

In 1994, California voters went to the polls to pass Proposition 187, a measure designed to deter unauthorized immigration by denying a range of public benefits to the undocumented. Twenty-five years later, undocumented immigration remains a deeply polarizing issue in our country. But if the political discourse seems similar, the civil rights toolkit is not. In an earlier era, equal protection arguments had pride of place, but today, advocates rely heavily on structural and institutional arguments to constrain official discretion.

In 1982, the United States Supreme Court’s decision in Plyler v. Doe declared unconstitutional a Texas statute that denied undocumented …

Why The Nineteenth Amendment Matters Today: A Guide For The Centennial, Neil S. Siegel

Faculty Scholarship

The story of the Nineteenth Amendment includes a half-century of social movement contestation over whether permitting women to vote would destroy or democratize the American family and the American constitutional structure. This Essay revisits that story—an unfinished narrative of both disappointment and hope—in the service of identifying reasons why it relates to the lives of contemporary Americans. The overarching objective of the Essay is to suggest that the full story of the Nineteenth Amendment has always involved much more than a narrow debate over a determinate decision rule regarding women’s access to the franchise. To accomplish that objective, the Essay …

Historical Gloss, Madisonian Liquidation, And The Originalism Debate, Curtis A. Bradley, Neil S. Siegel

Faculty Scholarship

The U.S. Constitution is old, relatively brief, and very difficult to amend. In its original form, the Constitution was primarily a framework for a new national government, and for 230 years the national government has operated under that framework even as conditions have changed in ways beyond the Founders’ conceivable imaginations. The framework has survived in no small part because government institutions have themselves played an important role in helping to fill in and clarify the framework through their practices and interactions, informed by the realities of governance. Courts, the political branches, and academic commentators commonly give weight to such …

Extraterritorial Rights In Border Enforcement, Fatma Marouf

Faculty Scholarship

Recent shifts in border enforcement policies raise pressing new questions about the extraterritorial reach of constitutional rights. Policies that keep asylum seekers in Mexico, expand the use of expedited removal, and encourage the cross-border use of force require courts to determine whether noncitizens who are physically outside the United States, or who are treated for legal purposes as being outside even if they have entered the country, can claim constitutional protections. This Article examines a small but growing body of cases addressing these extraterritoriality issues in the border enforcement context, focusing on disparities in judicial analyses that have resulted in …

Notice Pleading In Exile, Adam N. Steinman

Faculty Scholarship

According to the conventional wisdom, the Supreme Court's 2009 decision in Ashcroft v. Iqbal discarded notice pleading in favor of plausibility pleading. This Article — part of a symposium commemorating the Iqbal decision's tenth anniversary — highlights decisions during those ten years that have continued to endorse notice pleading despite Iqbal. It also argues that those decisions reflect the best way to read the Iqbal decision. Although Iqbal is a troubling decision in many respects, it can be implemented consistently with the notice-pleading framework that the original drafters of the Federal Rules of Civil Procedure had in mind.

Women, Democracy, And The Nineteenth Amendment, Paula A. Monopoli

Faculty Scholarship

This paper explores the status of women’s participation in our democracy, in response to both the commemoration of the Nineteenth Amendment’s centennial and the deep misogyny aimed at women holding formal political power during the current pandemic. The paper explores the connection between constitutional design and the level of women's participation in democratic governance. It suggests that the robust participation of women in our democracy is not only morally right, but that such parity is central to both the legitimacy of the state and its continued existence. The paper begins by describing the state of women’s participation in formal and …

Developing Youth Voices, Maryam Ahranjani

Faculty Scholarship

Discusses the Marshall-Brennan Constitutional Literacy Project, and its role in inspiring students to speak up about the things that are important to them. Students learn how the Constitution works by reading cases, and developing critical thinking and oral advocacy skills with relatable mentors.

For more information visit:

https://www.wcl.american.edu/impact/initiatives-programs/marshallbrennan/20th-anniversary/

Florida Constitutional Law In A Nutshell, Robert Jarvis

Faculty Scholarship

No abstract provided.

So Goes The Nation: The Constitution, The Compact, And What The American West Can Tell Us About How We'll Choose The President In 2020 And Beyond, Wilfred Codrington Iii

Faculty Scholarship

No abstract provided.

Historical Gloss, Madisonian Liquidation, And The Originalism Debate, Curtis A. Bradley, Neil S. Siegel

Faculty Scholarship

The U.S. Constitution is old, relatively brief, and very difficult to amend. In its original form, the Constitution was primarily a framework for a new national government, and for 230 years the national government has operated under that framework even as conditions have changed in ways beyond the Founders’ conceivable imaginations. The framework has survived in no small part because government institutions have themselves played an important role in helping to fill in and clarify the framework through their practices and interactions, informed by the realities of governance. Courts, the political branches, and academic commentators commonly give weight to such …

Disuniformity Of Federal Constitutional Rights, Joseph Blocher

Faculty Scholarship

Judge Jeffrey Sutton’s 51 Imperfect Solutions describes and celebrates the crucial role of state constitutional law in “making” American constitutional law. The fact that states do not speak with one voice in doing so is, in Sutton’s account, a feature rather than a bug. The diversity in their approaches permits experimentation and tailoring, and ultimately produces a stronger and more supple constitutional fabric.

Sutton’s enthusiasm for the diversity and dynamism of state constitutional law is entirely convincing. But is the federal alternative quite so flat? Although federal constitutional rights are undoubtedly more uniform than those of states, they are not …

"The Road I Can't Help Travelling": Holmes On Truth And Persuadability, Joseph Blocher

Faculty Scholarship

No abstract provided.

The Failed Transparency Regime For Executive Agreements: An Empirical And Normative Analysis, Oona A. Hathaway, Curtis A. Bradley, Jack L. Goldsmith

Faculty Scholarship

The Constitution specifies only one process for making international agreements. Article II states that the President “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.” The treaty process has long been on a path to obsolescence, however, with fewer and fewer treaties being made in each presidential administration. Nevertheless, the United States has not stopped making international agreements. Even as Article II treaties have come to a near halt, the United States has concluded hundreds of binding international agreements each year. These agreements, known as …

Furtive Blackness: On Blackness And Being, T. Anansi Wilson

Faculty Scholarship

Furtive Blackness: On Blackness and Being (“Furtive Blackness”) and The Strict Scrutiny of Black and BlaQueer Life (“Strict Scrutiny”) take a fresh approach to both criminal law and constitutional law; particularly as they apply to African descended peoples in the United States. This is an intervention as to the description of the terms of Blackness in light of the social order but, also, an exposure of the failures and gaps of law. This is why the categories as we have them are inefficient to account for Black life. The way legal scholars have encountered and understood the language of law …

The Strict Scrutiny Of Black And Blaqueer Life, T. Anansi Wilson

Faculty Scholarship

Furtive Blackness: On Blackness and Being (“Furtive Blackness”) and The Strict Scrutiny of Black and BlaQueer Life (“Strict Scrutiny”) take a fresh approach to both criminal law and constitutional law; particularly as they apply to African descended peoples in the United States. This is an intervention as to the description of the terms of Blackness in light of the social order but, also, an exposure of the failures and gaps of law. This is why the categories as we have them are inefficient to account for Black life. The way legal scholars have encountered and understood the language of law …

The Contributions Of William Funk To American Constitutional Law Scholarship, William Araiza

Faculty Scholarship

No abstract provided.

So Goes The Nation: The Constitution, The Compact, And What The American West Can Tell Us About How We'll Choose The President In 2020 And Beyond, Wilfred Codrington Iii

Faculty Scholarship

No abstract provided.

The Modern Architecture Of Religious Freedom As A Fundamental Right, Peter G. Danchin

Faculty Scholarship

No abstract provided.

Religious Accommodation, The Establishment Clause, And Third-Party Harm, Mark Storslee

Faculty Scholarship

In the wake of Burwell v. Hobby Lobby, religious accommodation has become increasingly controversial. That controversy has given rise to a new legal theory gaining popularity among academics and possibly a few Supreme Court justices: the idea that the First Amendment's Establishment Clause condemns accommodations whenever they generate anything beyond a minimal cost for third parties.

The third-party thesis is appealing. But this Article argues that there are good reasons to believe it falls short as an interpretation of the Establishment Clause. In its place, the Article offers a new theory for understanding the relationship between costly accommodations and the …

Firearms, Extreme Risk, And Legal Design: "Red Flag" Laws And Due Process, Joseph Blocher, Jacob D. Charles

Faculty Scholarship

The most prominent recent development in gun regulation has been the spread of extreme risk protection order (ERPO) laws—often called “red flag” laws—which permit the denial of firearms to individuals who a judge has determined present an imminent risk of harm to themselves or others. Following a wave of adoptions in the wake of the Parkland murders, such orders are now authorized by law in eighteen states and the District of Columbia, and under consideration in many others. Advocates argue that they provide a tailored, individualized way to deter homicide, suicide, and even mass shootings by providing a tool for …

Protecting Against An Unable President: Reforms For Invoking The 25th Amendment And Overseeing Presidential Nuclear Launch Authority, Louis Cholden-Brown, Daisy De Wolff, Marcello Figueroa, Kathleen Mccullough

Faculty Scholarship

The immense powers of the presidency and the vast array of global threats demand a physically and mentally capable president. To help ensure able presidential leadership, this report advocates reforms related to the 25th Amendment, including proposals for an “other body” to act with the vice president in certain circumstances to declare the president unable and a mechanism for officials to report concerns about the president’s capacity. The report also recommends new checks on the president’s authority to use nuclear weapons, such as procedures for notifying top national security officials when use is contemplated.

This report was researched and written …

Hernandez, Bivens, And The Supreme Court's Expanding Theory Of Judicial Abdication, William J. Aceves

Faculty Scholarship

Sergio Adrián Hernández Güereca, a fifteen-year-old Mexican child, was playing with his friends in Mexico when he was shot in the face by a U.S. Border Patrol Agent standing in the United States. Sergio died on the concrete ground where he fell.

In Hernandez v. Mesa, Sergio’s family brought a federal lawsuit seeking to hold Agent Jesus Mesa, Jr. responsible for the death of their son. They alleged Agent Mesa had violated Sergio’s constitutional rights and based their claim on the Bivens doctrine. In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, the Supreme Court established a …

Church Taxes And The Original Understanding Of The Establishment Clause, Mark Storslee

Faculty Scholarship

Since the Supreme Court’s decision in Everson v. Board of Education, it has been widely assumed that the Establishment Clause forbids government from 'aiding' or subsidizing religious activity, especially religious schools. This Article suggests that this reading of the Establishment Clause rests on a misunderstanding of Founding-era history, especially the history surrounding to church taxes. Contrary to popular belief, the decisive argument against those taxes was not an unqualified assertion that subsidizing religion was prohibited. Rather, the crucial argument was that church taxes were a coerced religious observance: a government-mandated sacrifice to God, a tithe. Understanding that argument helps …

Election Law Localism In The Time Of Covid-19, Richard Briffault

Faculty Scholarship

In just a few short months, the COVID-19 pandemic has already provoked multiple election law disputes. These have tended to track the same normative and policy conflicts that have marked election law for years, particularly the tension between strict adherence to preexisting rules and the willingness to stretch or relax those rules in order to deal with emergency conditions, and the overlapping debate over whether the primary threat to the integrity of the electoral system is fraud or the legal and administrative obstacles to voting during a pandemic. A third, but much less discussed, strand in the emerging COVID-19 election …

America's Hidden Foster Care System, Joshua Gupta-Kagan

Faculty Scholarship

In most states, child protection agencies induce parents to transfer physical custody of their children to kinship caregivers by threatening to place the children in foster care and bring them to family court. Both the frequency of these actions (this Article establishes that they occur tens or even hundreds of thousands of times annually) and their impact (they separate parents and children, sometimes permanently) resemble the formal foster care system. But they are hidden from courts, because agencies file no petition alleging abuse or neglect, and hidden from policymakers, because agencies do not generally report these cases.

While informal custody …

What Should Presidential Candidates Tell Us About Themselves? Proposals For Improving Transparency In Presidential Campaigns, Megha Dharia, Rikki Lavine, Ryan Partelow, James Auchincloss, Krysia Lenzo

Faculty Scholarship

Elections are at the foundation of our democracy, but voters sometimes cast their ballots without critical information about presidential candidates. This report calls for requirements that candidates release more personal financial information, including five years of tax returns, and undergo criminal and intelligence background checks. The report also advocates for a system allowing candidates to submit to voluntary medical exams with some results released to the public.

This report was researched and written during the 2018-2019 academic year by students in Fordham Law School’s Democracy and the Constitution Clinic, which is focused on developing non-partisan recommendations to strengthen the nation’s …

Toward An Independent Administration Of Justice: Proposals To Insulate The Department Of Justice From Improper Political Interference, Rebecca Cho, Louis Cholden-Brown, Marcello Figueroa

Faculty Scholarship

The rule of law is undermined when political and personal interests motivate criminal prosecutions. This report advances proposals for ensuring that the federal criminal justice system is administered uniformly based on the facts and the law. It recommends a law preventing the president from interfering in specific prosecutions, another law establishing responsibilities for prosecutors who receive improper orders, and new conflict of interest regulations for Department of Justice officials.

This report was researched and written during the 2018-2019 academic year by students in Fordham Law School’s Democracy and the Constitution Clinic, which is focused on developing non-partisan recommendations to strengthen …