Constitutional Law Commons^™

My Right To Dominate You: The Populist Perversion Of Human Rights, James A. Gardner

Journal Articles

A constitutional “right” is a legal technology designed to protect the weak from the strong. In the twenty-first-century United States, however, constitutional rights have increasingly been interpreted and deployed, by both litigants and courts, to secure the ability of the strong to dominate the weak. It is quickly becoming standard practice among right-wing American populists to claim that the deployment of rights in ways that limit the ability of the strong to dominate those weaker than themselves is to make victims of the strong. Freedom, in the imagination of American populists, means the freedom to dominate disfavored others.

This paper …

Constitutional Structure And Election Law, Manoj Mate

Journal Articles

Since Bush v. Gore, scholarship on election law has centered on a theoretical debate between rights-based and structural theory approaches, and the appropriate role and scope of judicial intervention in election law cases. However, these debates have not fully assessed the degree to which the Court’s approach to constitutional structure has fundamentally reshaped election law. Over the past two decades, the Court has increasingly emphasized the importance of constitutional structure-based approaches in election law cases.

This Article analyzes these dynamics and advances a typology of constitutional structure-based approaches in election law. Drawing on scholarship on modalities of interpretation and …

The Original Meaning And Understanding Of The Investigative Power Of The Grand Jury In The Constitution Of Alaska, Savannah Shoffner, Richard W. Garnett

Journal Articles

The investigatory, or reporting, power of grand juries refers to the body’s ability to issue statements on wide-ranging matters of public policy, generally aimed at exposing “inefficiency, neglect, or criminal or quasi-criminal conduct” by government officials. Grand jurors may propose an investigation themselves or respond to a request from a citizen. The reports produced by these investigations need not be tied to a specific indictment to be released.

Text, history, and tradition reveal that the grand jury has been understood as an intermediary between the government and the people, empowered to make public statements on the people’s behalf and entrusted …

Trump’S Venezuela Legal Defense Restson Youngstown ‘Gloss’ Idea, Frank Rosenblatt

Journal Articles

President Donald Trump’s decision to invade Venezuela and oust its president puts a spotlight on a USSupreme Court case that famously blocked President Harry Truman’s seizure of American steel mills. Thecase highlights the tension among presidential aggrandizement, Congress’s war powers, and the (oftensecret) legal opinions undergirding a president’s ambitions

Private Rights Of Action For Election Litigation In The Federal Courts, Derek T. Muller

Journal Articles

Election litigation is surging. But just as litigants pursue more election claims in federal courts than ever before, federal courts are growing more skeptical about their authority to hear them. This Essay, a contribution to the 2025 Arnold Lecture at the University of Arkansas Little Rock, William H. Bowen School of Law, examines the narrowing landscape of private rights of action in election law with a particular focus on claims brought ahead of the 2024 election. It traces the Supreme Court's shift toward formalism, the heavy emphasis on remedies found in federal statutes, and the diminishing avenues for private enforcement …

Unfinished Liberties, Inevitable Balancing, Sherif Girgis

Journal Articles

From the Article

In constitutional liberties cases, the Supreme Court has tried to reduce balancing, understood loosely to mean determining a right’s contours based on sweeping political-moral considerations, not just text and history. It fears that today’s balancing would displace a balance struck by the Founders. Balancing is indeed problematic—but this campaign to end it is bound to fail. Though avoidable for many constitutional rights, balancing is inevitable for general liberties like religion, the Second Amendment, and speech. This inevitability arises not from gaps in text or history but from these liberties’ special role.

General liberties are irreducibly open-ended—not reducible …

Severability And Liberty, Randy J. Kozel

Journal Articles

In US federal courts and the courts of many states, the presumption of statutory severability leads judges to separate a statute’s unlawful elements from its lawful ones. This article contends that the presumption becomes problematic when the effect of severing is to restrict the constitutional rights of a group whom the legislature exempted from regulation. Presumptive severability draws on a conception of judicial review that aspires to minimize interference with enacted legislation. But there is a countervailing constitutional interest in protecting exempted groups from restrictions on their liberty unless and until the legislature directs otherwise. It is these competing strands …

Administering Presidential Elections And Counting Electoral Votes After Trump V. Anderson, Derek T. Muller

Journal Articles

In the landmark case Trump v. Anderson, the Supreme Court unanimously held that states lack the unilateral power to exclude presidential candidates from the ballot on the basis of Section 3 of the Fourteenth Amendment. But while the Court was united in its essential holding, the Justices fractured in their reasoning, leaving significant questions about Congress's role in enforcing Section 3 against presidential candidates.

This Article examines the fault lines in Trump v. Anderson and analyzes how Congress's power to count electoral votes under the Twelfth Amendment intersects with its authority to enforce Section 3 of the Fourteenth Amendment. …

Understanding Brady Violations, Jennifer Mason Mcaward

Journal Articles

This largest-ever study of adjudicated violations of Brady v. Maryland provides a detailed and nuanced understanding of who suppresses material evidence in criminal cases, as well as why, how, where, and how often. Its findings complicate the conventional wisdom that Brady violations are the work of nefarious prosecutors who intentionally withhold material evidence from criminal defendants. While it is true that “bad faith” permeates this area of constitutional noncompliance, a substantial minority of Brady cases stem from “good faith” errors by prosecutors and suppression by law enforcement officers. Most Brady violations occur in a small number of states, and most …

The Abuses Of History In Constitutional Interpretation, Sherif Girgis

Journal Articles

From the Article

Jack Balkin’s Memory and Authority powerfully describes the kaleidoscopic quality of historical arguments in constitutional law. The book also moves easily between description and prescription. This Essay explores whether it moves too easily from one to the other. I consider whether the book’s analysis is so keen to capture our actual practices that it leaves itself too few resources for evaluating them—whether its account of history’s uses, made expansive by a zeal to fit how lawyers actually reason, crowds out any robust account of how they ought not to reason. While I am inclined to think so, …

Gerard V. Bradley And The American Law Of Church And State, Richard W. Garnett

Journal Articles

This paper provides an overview and appreciation of Prof. Gerard V. Bradley’s scholarly contributions to the American constitutional law of church and state. The Supreme Court of the United States has, in recent years, handed down a number of closely watched and much-remarked-on rulings in cases involving the First Amendment’s Religion Clause and various religion-related statutes. The Court has moved the law of religious freedom and church–state relations toward coherence and clarity, and better aligned it with American history, tradition, and practice, and with an appropriate understanding of judges’ capacities and of the judicial role in a democracy. It appears …

Litigating Climate Vulnerability: Climate Change Reparations In Global Jurisprudence And Empirical Results From The Notre Dame Climate Change Reparations Dataset, Diane A. Desierto, Anibal Perez-Linan, Faisal Yamil Meneses, Yuta Inada, Rachael Degaugh, Andrew Marciano

Journal Articles

From the article

The global surge in climate change litigation provokes inquiry into the nature, frequency, and scope of climate change reparations that international, regional, and national courts, as well as arbitral tribunals and other adjudicative bodies such as UN treaty body mechanisms, determine to be adequate, both on legal merits as well as intrinsic claims of justice, for the resolution of disputes brought by climate vulnerable persons, groups, and constituencies against States, multinational corporations, and other actors. Our findings from the Notre Dame Climate Change Reparations Dataset reveal a broad spectrum of pecuniary and non-pecuniary reparations being adjudicated in …

New Challenges To Judicial Federalism, James A. Gardner

Journal Articles

The theory of judicial federalism holds that state constitutions are jurisprudentially independent from the U.S. Constitution, and that state supreme courts consequently may, and often should, interpret state constitutions differently from how the U.S. Supreme Court interprets the federal Constitution. As the U.S. Supreme Court increasingly turns back to the states important decisions of constitutional policy, such as the scope of reproductive rights or the nature and content of limitations on partisan gerrymandering, state constitutional law looms ever larger as a potential ground for resolution of these issues.

The conditions for a revival of judicial federalism today, however, are far …

An Exegesis Of The Meaning Of Dobbs: Despotism, Servitude, & Forced Birth, Athena D. Mutua

Journal Articles

The Dobbs decision has been leaked. Gathered outside of New York City's St. Patrick's Old Cathedral, pro-choice protesters chant: "Not the church, not the state, the people must decide their fate."

A white man wearing a New York Fire Department sweatshirt and standing on the front steps responds: "l am the people, l am the people, l am the people, the people have decided, the court has decided, you lose . . . . You have no choice. Not your body, not your choice, your body is mine and you're having my baby."

Despicable but not unexpected,³ this man's comments …

State Sovereign Immunity And The New Purposivism, Anthony J. Bellia Jr., Bradford R. Clark

Journal Articles

Since the Constitution was first proposed, courts and commentators have debated the extent to which it alienated the States’ preexisting sovereign immunity from suit by individuals. During the ratification period, these debates focused on the language of the citizen-state diversity provisions of Article III. After the Supreme Court read these provisions to abrogate state sovereign immunity in Chisholm v. Georgia, Congress and the States adopted the Eleventh Amendment to prohibit this construction. The Court subsequently ruled that States enjoy sovereign immunity independent of the Eleventh Amendment, which neither conferred nor diminished it. In the late twentieth-century, Congress began enacting statutes …

Judicial Fidelity, Caprice L. Roberts

Journal Articles

Judicial critics abound. Some say the rule of law is dead across all three branches of government. Four are dead if you count the media as the fourth estate. All are in trouble, even if one approves of each branch’s headlines, but none of them are dead. Not yet.

Pundits and scholars see the latest term of the Supreme Court as clear evidence of partisan politics and unbridled power. They decry an upheaval of laws and norms demonstrating the dire situation across the federal judiciary. Democracy is not dead even when the Court issues opinions that overturn precedent, upends longstanding …

The Ninth Amendment: The "Hard Problem" Of U.S. Constitutional Law, Jorge M. Farinacci Fernós

Journal Articles

Like with the mythical lamp that can grant any three wishes, federal courts in the United States have buried the Ninth Amendment of the U.S. Constitution deep within the sands of American law in order to avoid coming to terms with its potential regarding the protection of unenumerated constitutional rights. Courts have been able to do so, in part, because of the seemingly impossible task of extracting from the text and history of the Ninth Amendment sufficient elements needed to identify which unenumerated rights may be subject to judicial enforcement.

This impossibility is an illusion and is contrary to the …

Dividing The Body Politic, James A. Gardner

Journal Articles

It has long been assumed in large, modern, democratic states that the successful practice of democratic politics requires some kind of internal division of the polity into subunits. In the United States, the appropriate methods and justifications for doing so have long been deeply and inconclusively contested. One reason for the intractability of these disputes is that American practices of political self-division are rooted in, and have been largely carried forward from, premodern practices that rested originally on overtly illiberal assumptions and justifications that are difficult or impossible to square with contemporary commitments to philosophical liberalism.

The possibility of sorting …

Living Traditionalism, Sherif Girgis

Journal Articles

From the Article

This Article offers the first comprehensive analysis of the Court’s living traditionalism, which turns out to include scores of cases spanning every subject and Justices of every stripe. Next, the Article identifies a fundamental but previously unrecognized tension in the method itself: If the Court gives living-traditionalist cases full weight as precedent, it defeats the reasons for using the method at all. Put another way, it is incoherent to treat political practices as a ratchet: capable of moving law in one direction (e.g., against a right in 2022) but not the other (in favor of the right …

The President Of The Senate, The Original Public Meaning Of The Twelfth Amendment, And The Electoral Count Reform Act, Derek T. Muller

Journal Articles

When Congress convenes under the Twelfth Amendment and the votes of presidential electors are counted, there are three different responsibilities to consider. First, who presides over the joint session where counting takes place, and what is the role of that presiding officer? Second, who counts the electoral votes? Third, who resolves disputes about those electoral votes?

This Essay answers those questions. First, the presiding officer in the joint session is the President of the Senate, and she acts as any other presiding officer of a legislature. She initiates actions pursuant to precedent, parliamentary procedures, and the wishes of the chamber. …

It Doesn't Matter What "Interpretation" Is, Francisco J. Urbina

Journal Articles

Reviewing: HOW TO INTERPRET THE CONSTITUTION? By Cass Sunstein. Princeton, NJ: Princeton University Press. 2023. Pp. IX + 195. $22.95 (hardcover).

Life After Dobbs, Gerard V. Bradley

Journal Articles

The article begins, "The  Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now over rule those decisions and return that authority to the people and their elected representatives." It is now one year, and one full election cycle, since the Supreme Court closed its opinion in Dobbs v. Jackson Women's Health Organization with those words. That is time enough to gauge how the "people and their elected representatives" have used the authority "return[ed]" to them.

Neither Trumps Nor Interests: Rights, Pluralism, And The Recovery Of Constitutional Judgment Of Constitutional Judgment, Paul Linden-Retek

Journal Articles

A longer, unedited version of this article is available via the 'Additional Files' link at the bottom of the page.

This Article develops a novel framework for the adjudication of rights in an age of partisan and societal polarization. In so doing, it defends judicial review in a divided polity on new grounds. The Article makes two broad interventions.

First, the Article cautions against recent calls to shift rights adjudication in the United States from Dworkinian categoricalism toward proportionality analysis. Such calls correctly identify how categoricalism, by embracing the absolute nature of rights as “trumps,” pits citizens harshly against one …

A New Report Of Entick V. Carrington (1765), Christian R. Burset, T. T. Arvind

Journal Articles

The Supreme Court has described Entick v. Carrington (1765) as “the true and ultimate expression of constitutional law” for the Founding generation. For more than 250 years, judges and commentators have read that case for guidance about the rule of law, executive authority, and the original meaning of the Fourth and Fifth Amendments. But we have been reading a flawed version. This Article publishes, for the first time, a previously unknown manuscript report of Entick v. Carrington. We explain why this version is more reliable than other reports of the case, and how this new discovery challenges prevailing assumptions about …

Treaties In The Philippine Constitutional System, Diane A. Desierto

Journal Articles

From the Article Abstract

International law has always had a dual significance to the Philippine constitutional system. On the one hand, the frequent articulation of international law principles within modern Philippine constitutional norms, statutes, and administrative rules demonstrate an outward-looking normative ethos – one I have described in other scholarship to be consistent with the 1987 Philippine Constitution’s ‘universalist history’. On the other hand, the considerable volume of Philippine jurisprudence applying international law norms to date overwhelmingly illustrate how Philippine litigants have strategically deployed international law (most especially international human rights law) over the years, as an acceptable external legal …

"Grievously And Egregiously Wrong": American Abortion Jurisprudence, Alyson M. Cox, O. Carter Snead

Journal Articles

This paper considers American abortion jurisprudence in the light of the Supreme Court's grant of certiorari in Dobbs v. Jackson Women's Health Organization. We conclude that Casey and its precedent case of Roe are egregiously wrong, have no grounding in the Constitution, and are unjustifiable on stare decisis grounds. This article argues that the Court should take this opportunity to overturn Roe and Casey once and for all, and restore to the political branches of government the authority to enact laws and policies that offer comprehensive protections to mothers, children (born and unborn), and families. Just as both parties made …

Defining “Substantial Burdens” On Religion And Other Liberties, Sherif Girgis

Journal Articles

The U.S. Supreme Court seems poised to restore free exercise exemptions from neutral laws that burden religion. But pivotal Justices have asked how to narrow religious exemptions. This Article proposes answers with wide-ranging implications for the future—and limits—of free exercise, and for the doctrine on other liberties.

To date, courts applying exemptions from “substantial burdens” on religion have tended to narrow protections to the detriment of religious minorities. But many fear that expanding exemptions would over-protect Christians in culture-war cases.

Striking a balance will require a sound definition of “substantial burdens.” But the current, strongly pro-religion Court will not impose …

Taking Justification Seriously: Proportionality, Strict Scrutiny, And The Substance Of Religious Liberty, Stephanie H. Barclay, Justin Collings

Journal Articles

Last term, five Justices on the Supreme Court flirted with the possibility of revisiting the Court’s First Amendment test for when governments must provide an exemption to a religious objector. But Justice Barrett raised an obvious, yet all-important question: If the received test were to be revised, what new test should take its place? The competing interests behind this question have be-come even more acute in light of the COVID-19 pandemic. In a moment rife with lofty rhetoric about religious liberty but riven by fierce debates about what it means in practice, this Article revisits a fundamental question common to …

Fragility, Not Superiority? Assessing The Fairness Of Special Religious Protections, Sherif Girgis

Journal Articles

Is it fair to grant exemptions from neutral laws to protect religion but not other deep commitments and pursuits, like secular conscience or care-giving bonds? The 30-year scholarly debate on this question now has legal import, as the Supreme Court stands poised to reverse precedent and restore free exercise exemptions from neutral laws. Whether it should, under stare decisis, turns partly on moral considerations like the fairness issue. And the debate is worth revisiting. Almost everyone has assumed that special religious protections are fair if and only if religion matters more than other interests. Yet protections for religion might be …

Federalism And The Limits Of Subnational Political Heterogeneity, James A. Gardner

Journal Articles

With an epidemic of democratic backsliding now afflicting many of the world’s democracies, including the United States, some scholars have suggested that federalism might serve as a useful defense for liberal democracy by impeding the ability of an authoritarian central government to stamp it out at the subnational level. In this Essay, I dispute that contention. An examination of both federal theory on one hand and the behavior and tactics of central control employed by ancient and early modern empires on the other leads to the conclusion that the protective value of federalism against the effects of national authoritarianism is …