Constitutional Law Commons^™

Beyond Torture: The Nemo Tenetur Principle In Borderline Cases, Luis E. Chiesa

Journal Articles

In this article I examine three borderline cases in which it is not clear whether a confession had been obtained in violation of the nemo tenetur principle (i.e. the rights against self-incrimination and forced inculpation). The case of the false confession presents a situation in which a person made a voluntary confession but the overwhelming evidence pointed to the falsity of the statements. In contrast, the confession obtained in the case of the truth serum is of high probative value. However, it could be argued that the suspect did not voluntarily decide to incriminate himself, given that he confessed when …

Honduras: Coup D’Etat In Constitutional Clothing?, Douglass Cassel

Journal Articles

Legal confusion has clouded the recent de facto change of government in Honduras. Some of this arises from the passionate political debate over President Manuel Zelaya and his de facto removal. Without entering that debate, this analysis addresses only questions of international law and related questions of law.

Despite the condemnation of the coup d’état by the United Nations, the Inter-American Commission on Human Rights, and the OAS, and by many governments including the United States, and despite suspension of Honduras from receipt of U.S. and European aid, and from participation in the OAS, diplomatic efforts to return President Zelaya …

Religious Freedom, Church Autonomy, And Constitutionalism, Richard W. Garnett

Journal Articles

Our topic at this symposium is "religion, the state, and constitutionalism"-not "the Constitution," or "the First Amendment," but "constitutionalism." Countless conferences, cases, books, and articles have wrestled with one version or another of the question, "how does our Constitution, with its First Amendment and its religion clauses, promote, protect, or perhaps restrain religion?" We are considering, it seems to me, a question that is different, and that is different in interesting and important ways: What are connections between religion and religious freedom, on the one hand, and constitutionalism, on the other?

Judicial Review, Local Values, And Pluralism, Richard W. Garnett

Journal Articles

At the Federalist Society's 2008 National Student Symposium, a panel of scholars was asked to consider the question, does pervasive judicial review threaten to destroy local identity by homogenizing community norms? The answer to this question is yes, pervasive judicial review certainly does threaten local identity, because such review can homogenize[e] community norms, either by dragging them into conformity with national, constitutional standards or (more controversially) by subordinating them to the reviewers' own commitments. It is important to recall, however, that while it is true that an important feature of our federalism is local variation in laws and values, it …

Does Free Exercise Of Religion Deserve Constitutional Mention?, John M. Finnis

Journal Articles

The article discusses the inclusion of the free exercise of religion among a society's constitutional guarantees in the U.S. It cites Christopher Eisgruber and Lawrence Sager, authors of the book "Religious Freedom and the Constitution," who hold that religion does not deserve constitutional mention on account of any special value. It disputes this view and states that religion does deserve constitutional mention and that the constitution should protect a citizen's right to practice his or her religion.

In Search Of Sub-National Constitutionalism, James A. Gardner

Journal Articles

Two recent trends, one favoring federalism as a form of governmental organization and the other favoring written constitutions, have lately combined to produce an impressive proliferation of subnational constitutions. Documents that can fairly be described as constitutions now govern the affairs of subnational units - states, provinces, cantons, Länder - in federal states on every continent. What remains unclear, however, is whether the proliferation of subnational constitutions indicates a corresponding spread of the practice of subnationalism constitutionalism - whether, that is, the appearance of subnational constitutions around the globe evinces a spreading ideological commitment to a strong role for subnational …

Simply Put: How Diversity Benefits Whites And How Whites Can Simply Benefit Diversity, Angela Mae Kupenda

Journal Articles

Although there are surmountable legal barriers to racial integration in education, fuller integration is possible. But first, whites must see how they benefit from diversity, and, second, whites must take simple steps toward integration that may, in turn, reveal to whites their desire to become more fully integrated. These two steps may help remove the limiting point to true integration.

What's In A Name? A Philosophical Critique Of 'Civil Unions' Predicated Upon A Sexual Relationship, Gerard V. Bradley

Journal Articles

'Civil unions' represent a fragile political armistice, not lasting peace. My interest in 'civil unions' is not, however, political. It is philosophical. I argue in this paper that 'civil unions' are wrong - and should be abandoned in law - because they are incoherent. This article is about what's in the name, marriage. My thesis is that the reason why same-sex couples may not marry defeats the case for 'civil unions' defined (even in part) as a sexual relationship. To reasonably deny these couples access to marriage is to deny them access to 'civil unions'. Conversely, to create 'civil …

Three Liberal - But Mistaken - Arguments For Same-Sex Marriage, Gerard V. Bradley

Journal Articles

From the Introduction

The constitutional argument for legally recognizing same-sex relationships as "marriages" is a straightforward non-discrimination claim: because there is no relevant difference between the capacity of same-sex couples and opposite-sex couples for marriage, restrictive laws arbitrarily withhold the recognition and benefits which legal marriage entails. If the statutory category - in this case, a couple's sex - does not contribute to the realization of any legitimate state goal, the law lacks a basis in reason. And, it is unconstitutional. As the Massachusetts Supreme Judicial Court concluded in Goodridge v. Department of Public Health, the state "failed to …

Of Persons And The Criminal Law: (Second Tier) Personhood As A Prerequisite For Victimhood, Luis E. Chiesa

Journal Articles

This article examines the implications of the Michael Vick case for the criminal law in general and for the law of victimhood in particular. It takes as its point of departure the NFL star's agreement to pay close to one million dollars to the various entities that assumed custody of the pit bulls in order to "make restitution for the full amount of the costs associated with the disposition of all dogs" that were involved in his illegal operation. According to the agreement, the authority to order such payments stems from 18 U.S.C. ý 3663, which allows for the issuance …

Procedural Common Law, Amy Coney Barrett

Journal Articles

Debates about the common lawmaking power of the federal courts focus exclusively on substantive common law. But federal common law is not limited to matters of substance; it reaches matters of procedure as well. Federal law includes a robust body of what might be called procedural common law - common law primarily concerned with the regulation of internal court processes rather than substantive rights and obligations. This body of law includes many doctrines that are fixtures in the law of procedure and federal courts. For example, abstention, forum non conveniens, remittitur, stare decisis, and preclusion can all fairly be characterized …

Free Speech And The Case For Constitutional Exceptionalism, Roger P. Alford

Journal Articles

Excerpts from the Article

Embodied in the Universal Declaration of Human Rights is the evocative proposition that [e]veryone has the right to freedom of opinion and expression. But beneath that level of abstraction there is anything but universal agreement.

This book review argues that the dissonance between countries need not be challenged in pursuit of uniformity. Indeed, in those cases in which the differences reflect an appropriate balance of competing goods, it should be celebrated. Constitutional exceptionalism recognizes and celebrates each country's attempt to optimize the general welfare of that country by balancing competing goods in a manner consistent with …

Bringing Clarity To Title Clearing: Tax Foreclosure And Due Process In The Internet Age, James J. Kelly Jr.

Journal Articles

The foreclosure of property tax liens performs an essential economic function by reconnecting underutilized properties to the real estate market. To clear title in an efficient and just manner, local jurisdictions foreclosing on tax liens require clear, balanced procedures for the provision of notice to affected parties. In its 2006 decision in Jones v. Flowers, the U.S. Supreme Court found that the foreclosing jurisdiction's lack of direct follow-up on returned notice mailings denied the addressee due process because the foreclosing party did not take steps that would be chosen by one desirous of actually informing the property owner. In subjecting …

Lower Courts And Constitutional Comparativism, Roger P. Alford

Journal Articles

The issue of constitutional comparativism has been a topic of significant commentary in recent years. However, there is one aspect of this subject that has been almost completely ignored by scholars: the reception, or lack thereof, of constitutional comparativism by state and lower federal courts. While the Supreme Court's enthusiasm for constitutional comparativism has waxed and now waned, lower state and federal courts have remained resolutely agnostic about this new movement. This is of tremendous practical significance because over ninety-nine percent of all cases are resolved by lower state and federal courts. Accordingly, if the lower courts eschew constitutional comparativism, …

Judicial Enforcement Of The Establishment Clause, Richard W. Garnett

Journal Articles

This paper is the author’s contribution to a roundtable conference, held in October of 2008 at Notre Dame Law School, devoted to Prof. Kent Greenawalt’s book, Religion and the Constitution: Establishment and Fairness. It is suggested that Greenawalt’s admirably context-sensitive approach to church-and-state questions might lead us to think that the best course for judges is to find (somehow) some bright-line, on-off “rules” and “tests”, constructed to identify and forbid the most obvious violations of the Religion Clause’s core (whatever that is), and to give up on -- or, perhaps, “underenforce” -- the rest.

Liberty, Judicial Review, And The Rule Of Law At Guantanamo: A Battle Half Won, Douglass Cassel

Journal Articles

In Boumediene v. Bush, 128 S. Ct. 2229 (2008), five members of the Supreme Court held that foreign prisoners at Guantanamo enjoy the constitutional privilege of habeas corpus; that their imprisonment had lasted too long for the Court to await completion of statutory review by lower courts of military tribunal findings that the prisoners were "enemy combatants"; and that the statutory judicial review was too deficient to substitute for the Great Writ.

Four Justices vigorously dissented. On the surface they differed on the history of the reach of the common law writ of habeas corpus, and on the procedural …

The Supreme Court And The Politics Of Death, Stephen F. Smith

Journal Articles

This article explores the evolving role of the U.S. Supreme Court in the politics of death. By constitutionalizing the death penalty in the 1970s, the Supreme Court unintentionally set into motion political forces that have seriously undermined the Court's vision of a death penalty that is fairly administered and imposed only on the worst offenders. With the death penalty established as a highly salient political issue, politicians - legislators, prosecutors, and governors - have strong institutional incentives to make death sentences easier to achieve and carry out. The result of this vicious cycle is not only more executions, but less …

Free To Believe, Richard W. Garnett

Journal Articles

Richard Garnett reviews Religious Freedom and the Constitution by Christopher L. Eisgruber & Lawrence G. Sager, Harvard University Press, 352 pages, $28.95

Our Structural Constitution: Religious Freedom And Church Autonomy (A Response To Mark Chopko, "Constitutional Reflections On The Parish: An Entity In The Fabric Of The Church."), Richard W. Garnett

Journal Articles

From the Article

The freedom and autonomy of the Church, for which Mark Chopko has been such an able advocate, are not easily separated from both the history and the health of political freedom under constitutionally limited government. In our political tradition, the challenge has always been to find the limiting principle that would check the encroachments of civil power and preserve these immunities.

Non-Pecuniary Interests And The Injudicious Limits Of Appellate Standing In Bankruptcy, S. Todd Brown

Journal Articles

Standing to appeal bankruptcy court orders today is limited to those with a pecuniary interest. This prudential limitation is based on the person aggrieved requirement of Section 39(c) of the Bankruptcy Act of 1898 - a requirement that was not included in the Bankruptcy Code. This article examines the extensive differences between the Act and the Code, the potential justifications for extending the pecuniary interest test in spite of the omission of the person aggrieved requirement, and the potential ramifications for parties and the integrity of the bankruptcy process. This analysis suggests that standing to appeal bankruptcy orders should be …

Unenumerated Rights And The Limits Of Analogy: A Critque Of The Right To Medical Self-Defense, O. Carter Snead

Journal Articles

Volokh’s project stands or falls with the claim that the entitlement he proposes is of constitutional dimension. If there is no fundamental right to medical self-defense, the individual must, for better or worse, yield to the regulation of this domain in the name of the values agreed to by the political branches of government. Indeed, the government routinely restricts the instrumentalities of self-help (including self-defense) in the name of avoiding what it takes to be more significant harms. This same rationale accounts for current governmental limitations on access to unapproved drugs and the current ban on organ sales. The FDA …

The Origins Of Article Iii "Arising Under" Jurisdiction, Anthony J. Bellia Jr.

Journal Articles

Article III of the Constitution provides that the judicial Power of the United States extends to all cases arising under the Constitution, laws, and treaties of the United States. What the phrase arising under imports in Article III has long confounded courts and scholars. This Article examines the historical origins of Article III arising under jurisdiction. First, it describes English legal principles that governed the jurisdiction of courts of general and limited jurisdiction--principles that animated early American jurisprudence regarding the scope of arising under jurisdiction. Second, it explains how participants in the framing and ratification of the Constitution understood arising …

The Blaine Amendment Of 1876: Harbinger Of Secularism?, Gerard V. Bradley

Journal Articles

The Blaine Amendment of 1876 was a Congressional effort to add a sixteenth amendment to the Constitution. The leading feature and central aspiration of the proposal was to prohibit the states from giving financial aid to schools run by sects. Passed overwhelmingly by the House of Representatives, the Blaine Amendment narrowly failed to secure the necessary two-thirds vote in the Senate.

This paper examines the Blaine Amendment as a political phenomenon; that is, as a Republican attempt to exploit anti-Catholic prejudice in a presidential election year. It also looks at the Blaine Amendment constitutionally; that is, for the light it …

The Freedom Of The Church, Richard W. Garnett

Journal Articles

This Article focuses on what the American theologian and Jesuit John Courtney Murray called a Great Idea, whose entrance into history marked the beginning of a new civilizational era. That idea was libertas ecclesiae, or the freedom of the Church. It served, according to Harold Berman, as the catalyst for the first major turning point in European history and as the foundation for nearly a millennium of political theory. And, this Article suggests, it remains a crucial component of any plausible and attractive account of religious freedom under and through constitutionally limited government. It is tempting to assume or expect …

The Fourth Amendment Status Of Stored E-Mail: The Law Professors' Brief In Warshak V. United States, Susan Freiwald, Patricia L. Bellia

Journal Articles

This paper contains the law professors' brief in the landmark case of Warshak v. United States, the first federal appellate case to recognize a reasonable expectation of privacy in electronic mail stored with an Internet Service Provider (ISP). While the 6th circuit's opinion was subsequently vacated and reheard en banc, the panel decision will remain extremely significant for its requirement that law enforcement agents must generally acquire a warrant before compelling an ISP to disclose its subscriber's stored e-mails. The law professors' brief, co-authored by Susan Freiwald (University of San Francisco) and Patricia L. Bellia (Notre Dame) and signed by …

Religion And Group Rights: Are Churches (Just) Like The Boy Scouts?, Richard W. Garnett

Journal Articles

What role do religious communities, groups, and associations play - and, what role should they play - in our thinking and conversations about religious freedom and church-state relations? These and related questions - that is, questions about the rights and responsibilities of religious institutions - are timely, difficult, and important. And yet, they are often neglected.

It is not new to observe that American judicial decisions and public conversations about religious freedom tend to focus on matters of individuals' rights, beliefs, consciences, and practices. The special place, role, and freedoms of groups, associations, and institutions are often overlooked. However, if …

Book Review, Mark C. Modak-Truran

Journal Articles

In volume 1, James Hitchcock provides a comprehensive historical treatment of all the U.S. Supreme Court cases involving the religion clauses. Volume 2 focuses on the broader “context of the continuing dialogue about the role of religion in public life” and its relationship to the Court’s interpretation of the religion clauses.

Regime Theory And Unenumerated Rights: A Cautionary Note, Barry Cushman

Journal Articles

From the Introduction

The conference papers contributed by Professor Gillman and Professor Feldman are richly suggestive and provide much food for thought. Each takes as his starting point the notion of 'jurisprudential regimes" in constitutional law, and seeks to illuminate the ways in which such regimes are related to the political contexts in which they operate. The ideas explored in each of these essays deserve a much fuller consideration than I can hope to provide in this brief comment. I would like, however, to take a moment to consider some of the issues of characterization and causal efficacy that each …

Foreword: Representation Without Party: Lessons From State Constitutional Attempts To Control Gerrymandering, James A. Gardner

Journal Articles

Since the founding, all gerrymandering of election districts, at both the state and congressional levels, has been accomplished by state actors operating almost exclusively under state law. State constitutions have often served as a first line of defense against publicly disfavored practices, and the treatment of gerrymandering is no exception. The state constitutional record reveals a gradual introduction, diffusion, and evolution of a wide variety of provisions intended to control gerrymandering, including requirements of contiguity, compactness, respect for local political boundaries, and preservation of communities of interest, among others. Indeed, such provisions have been validated by the U.S. Supreme Court …

The Rise, Development And Future Directions Of Critical Race Theory And Related Scholarship, Athena D. Mutua

Journal Articles

This essay tells the story of the rise, development and future directions of critical race theory and related scholarship. In telling the story, I suggest that critical race theory (CRT) rises, in part, as a challenge to the emergence of colorblind ideology in law, a major theme of the scholarship. I also contend that conflict, as a process of intellectual and institutional growth, marks the development of critical race theory and provides concrete and experiential examples of some of its key insights and themes. These conflicts are waged in various institutional settings over the structural and discursive meanings of race …