Constitutional Law Commons^™

The Borderline Constitution, Pratheepan Gulasekaram

Publications

This Feature identifies and theorizes a distinct constitutional regime that federal courts have constructed at, adjacent to, and because of the nation’s border. Drawing together strands of First, Fourth, Fifth, and Fourteenth Amendment law, along with habeas doctrine, constitutional torts, tribal sovereignty, and separation-of-powers concerns, this Feature demonstrates how constitutional guarantees systematically recede in the border’s shadow. These deviations from canonical and mainstream constitutional norms authorize intrusive state invasions of privacy and other fundamental rights, abdicate judicial oversight in favor of outsized executive discretion, and entrench racial and religious subordination.

The Feature further demonstrates that the effects of border exceptionalism …

The Public Franchise Tradition As A Limit On Patent Takings, Laura E. Dolbow

Publications

A longstanding debate exists over whether patents are forms of “private property” that the Takings Clause protects. Recently, in a different context, the Supreme Court stated that a patent is a specific form of property: a public franchise. Several scholars have argued that the public franchise characterization means patents are not protected by the Takings Clause at all. This Article identifies another potential implication of the public franchise framing. It argues that even if patents are viewed as protected by the Takings Clause, the public franchise framing suggests that the scope of that protection should be quite narrow.

To explore …

Gender Therapy False Equivalency, Scott Skinner-Thompson

Publications

One critical dispute surrounding the rights of LGBTQ people and societal recognition of their existence is the legal debate regarding very different types of gender therapy. On the one hand, several states have banned the provision of gender-affirming medical care to transgender youth, positing that it is a dangerous form of mutilation. A separate set of states has banned the practice of so-called gay or gender conversion therapy that seeks to transform youth away from their queer identities, concluding that it is a form of abuse. Both sets of laws have been challenged in courts with the Supreme Court recently …

Moody V. Netchoice And Telecom Law's First Amendment, Blake Reid

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No abstract provided.

Separation Of Copyright Powers, Blake Reid

Publications

The United States Copyright Office’s multifarious roles in the U.S. copyright system have long prompted uncertainty about its position among the branches of the federal government. From its formal home in the Library of Congress, the chameleonic Office has accumulated a wide range of advisory, rulemaking, adjudicative, and administrative functions that have long prompted questions about both agencies’ exercise of dueling legislative and executive powers.

Despite its increasingly sprawling portfolio and unusual configuration, the Office has never faced a serious separation-of-powers reckoning—until now. In the span of just five days in May 2025, Donald Trump fired the Librarian of Congress …

Jawbreaking And Counterboning, Blake Reid

Publications

FCC Chairman Brendan Carr’s public campaign of unlawful threats against television broadcasters, culminating in the high-profile preemption and later return to air of late-night host Jimmy Kimmel, provides an important natural experiment for the law of jawboning. The Kimmel-Carr episode highlights the challenges of legal remedies against government officials over even the most flagrantly coercive, unlawful, and public jawbones. It also highlights the importance of intermediaries refusing to comply with unlawful demands—what this Essay calls jawbreaking.

Using the Kimmel-Carr episode as a case study, this Essay proposes moving beyond voluntary incentives for jawbreaking to impose a mandatory duty to jawbreak …

State Constitutionalism's Fragile Wall, Adam B. Sopko

Publications

The adequate and independent state grounds (AISG) doctrine has long demarcated the perimeter of the U.S. Supreme Court’s authority to review state court decisions, limiting review to questions of federal law. AISG maintains the Court’s primacy over federal law and state courts’ supremacy over state law. A comprehensive review of all filings on the Court’s docket from state courts over the last twenty years reveals that recent applications of AISG consist of subtle but significant departures from existing norms that, together, suggest a reformulation of the Court’s power over state courts that threatens their sovereign law development role. This Essay …

Fear And Free Speech, Helen Norton

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No abstract provided.

Undercover Investigations, Deception, And Democracy, Helen Norton

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No abstract provided.

How The Antidiscrimination Law Of Commercial Transactions Really Works, Helen Norton

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No abstract provided.

From Gods To Google, Rebecca Aviel, Margot Kaminski, Toni M. Massaro, Andrew Keane Woods

Publications

The First Amendment has become a significant barrier to sensible technology regulation. The conventional explanation for this is the Court's deregulatory turn in free-speech law. But the Lochnerization story is incomplete. The Court's profound solicitude for religious speakers plays a central role in the current digital-free-expression landscape. By protecting the speech of certain religious dissidents, the Court has created a set of constitutional entitlements that logically extend to technology firms. Along the way, the Court has eroded its ability to apply the First Amendment sensibly to novel technologies.

This Feature draws the doctrinal through line from gods to Google. We …

Loyalty Disarmament And The Undocumented, Pratheepan Gulasekaram

Publications

Since the Supreme Court's District of Columbia v. Heller decision in 2008, lower federal courts have wrestled with Second Amendment claims raised by categories of people excluded from gun possession. Among those cases, several have been brought by noncitizens challenging their prosecutions under 18 U.S.C. § 922(g)(5), the federal criminal ban on possession by unlawfully present noncitizens. In the post-Heller § 922(g)(5) cases, judges have opined on whether unlawfully present noncitizens were among "the people" who had the right to bear arms and whether the government regulation met the appropriate level of constitutional scrutiny. More recently, however, the Supreme Court …

Contesting "Address": Conflicts Over The Words We Use To Address And Refer To Each Other, Helen Norton

Publications

Professor Richard Brooks's generative insights provide us with valuable tools for recognizing, and trying to make sense of, address's role in human interactions. That "address"--the words we use to address and refer to each other--has the potential both to offer value and to inflict harm to these interactions sometimes triggers conflict over appropriate forms of address. In this Commentary to Professor Brooks's Frankel Lecture, I examine some of these conflicts.

As we'll see, some address conflicts involve debates over whether and when address actually makes meaning or whether it’s instead relatively trivial--while others involve contestants who agree that address makes …

Can The Law Of Democracy Save Democracy?, Helen L. Norton

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No abstract provided.

Suspicion, Deference, And The First Amendment, Helen Norton

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No abstract provided.

Dangerousness And The Undocumented, Pratheepan Gulasekaram

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The Supreme Court's most recent Second Amendment opinion, United States v. Rahimi, centers the question of dangerousness in right to bear arms challenges. There, the Court upheld 18 U.S.C. § 922(g)(8), the federal criminal prohibition on possession of firearms by those subject to a civil domestic violence order, opining that legislatures could regulate the right to bear arms of those who were proven credible threats to public safety. Rahimi, however, left open the question whether dangerousness might be imputed to an entire group, absent individual determinations of threat or danger. The several lower federal court cases adjudicating 18 U.S.C. § …

The Cycle Of Delegitimization: Lessons From Dred Scott On The Relationship Between The Supreme Court And The Nation, Jonathon J. Booth

Publications

This Article examines how Chief Justice Taney’s opinion in Dred Scott v. Sandford sparked a cycle of delegitimization that parallels contemporary debates about the Supreme Court’s legitimacy crisis. Part I explicates how one family’s fight for freedom in Missouri reached the Supreme Court, the resulting radical decision, and the nation’s reaction to show the initial stages of this cycle.

Part II examines the impact of Dred Scott on politics and law during the James Buchanan administration (1857–1861). During this period, the federal government, Southern states, and some Western territories swiftly implemented the decision, for example by expelling free Black residents. …

Section 230'S Debts, Blake Reid

Publications

Much attention has been paid to the unknown First Amendment permissibility of the government regulating social media platforms' carriage practices. The Supreme Court's impending resolution of the NetChoice cases poses a high-stakes First Amendment question: "Can the government permissibly dictate what types of content platforms publish?"

But how did the First Amendment stakes in NetChoice get so high? This Article identifies a long-standing gap in the Supreme Court's First Amendment jurisprudence for platform regulation following its decision in Reno v. ACLU. This Article attributes that gap to the accumulation of both interpretive and legislative debts by Section 230 of the …

Domestic Supply (A Feminist Proposal), Jennifer S. Hendricks

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No abstract provided.

Invisible Adjudication In State Supreme Courts, Adam B. Sopko

Publications

As the U.S. Supreme Court continues retrenching important constitutional rights, interest is shifting to state courts and constitutions to serve as a backstop. More and more, state supreme courts are at the center of some of our most important debates of law and policy, resolving questions concerning bodily autonomy, democracy, the environment, and more. The increased attention on state supreme courts highlights the complexity and nuance that attend these institutions and reveals our limited understanding of how they operate and influence society. This Article examines one such aspect of state supreme court practice: the shadow docket. While the U.S. Supreme …

Uncommon Carriage, Blake Reid

Publications

As states have begun regulating the carriage of speech by “Big Tech” internet platforms, scholars, advocates, and policymakers have increasingly focused their attention on the law of common carriage. Legislators have invoked common carriage to defend social media regulations against First Amendment challenges, making arguments set to take center stage in the Supreme Court’s impending consideration of the NetChoice saga.

This Article challenges the coherence of common carriage as a field and its utility for assessing the constitutionality and policy wisdom of internet regulation. Evaluating the post-Civil War history of common carriage regimes in telecommunications law, this Article illustrates that …

Second Amendment Immigration Exceptionalism, Pratheepan Gulasekaram

Publications

This Essay critiques the decision to uphold federal gun restrictions on unlawfully present noncitizens on the basis of "immigration exceptionalism." It argues that courts should avoid applying bespoke constitutionalism to criminal laws, including gun laws, simply because the law regulates noncitizens. This Essay shows why such exceptional modes misapprehend long-decided Supreme Court cases and well-established legal doctrine. Further, it warns that an exceptional approach to Second Amendment claims by unlawfully present noncitizens cannot be cabined to either firearms or the unlawfully present. Rather, it portends a wider gulf in constitutional protections for all noncitizens across a variety of fundamental criminal …

Immigration Enforcement Preemption, Pratheepan Gulasekaram

Publications

The Supreme Court's 2012 decision, Arizona v. United States, turned back the most robust and brazen state regulation of immigration in recent memory, striking down several provisions of Arizona's omnibus enforcement law. Notably, the Court did not limit preemption inquiries to conflicts between the state law and congressional statutes. The Court also based its decision on the tension between the state law and Executive Branch enforcement policies. The landmark decision seemed to have settled the Court's approach to immigration enforcement federalism. Yet, a scant eight years after Arizona, in Kansas v. Garcia, the Court upheld Kansas's prosecutions of noncitizens who …

The Second Amendment's "People" Problem, Pratheepan Gulasekaram

Publications

The Second Amendment has a “people” problem. In 2008, District of Columbia v. Heller expanded the scope of the Second Amendment, grounding it in an individualized right of self-protection. At the same time, Heller’s rhetoric limited “the people” of the Second Amendment to “law-abiding citizens.” In 2022, New York State Rifle & Pistol Ass’n v. Bruen doubled down on the Amendment’s self-defense rationales but, once again, framed the right as one possessed by “citizens.” In between and after the two Supreme Court cases, several lower federal courts, including eight federal courts of appeals, wrestled with the question whether the right …

Redistricting’S Ultimate Antidote, Douglas M. Spencer

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No abstract provided.

Getting To Trustworthiness (But Not Necessarily To Trust), Helen L. Norton

Publications

As ethicist and political scientist Russell Hardin observed, our willingness to trust an actor generally turns on our own experience with, and thus our own perceptions of, that actor’s motives and that actor’s competence. Changes over time and technology can alter our experience with a particular actor and thus our willingness to trust or distrust that actor.

This symposium essay focuses not on how to encourage the public to trust the media, but instead on how the media’ can behave in trustworthy ways--in other words, how its choices can demonstrate its trustworthy motives and competence. Examples include refusing to amplify …

What Twenty-First-Century Free Speech Law Means For Securities Regulation, Helen Norton

Publications

Securities law has long regulated securities-related speech--and until recently, it did so with little, if any, First Amendment controversy. Yet the antiregulatory turn in the Supreme Court's twenty-first-century Free Speech Clause doctrine has inspired corporate speakers' increasingly successful efforts to resist regulation in a variety of settings, settings that now include securities law. This doctrinal turn empowers courts, if they so choose, to dismantle the securities regulation framework in place since the Great Depression. At stake are not only recent governmental proposals to require companies to disclose accurate information about their vulnerabilities to climate change and other emerging risks, but …

Reconsidering The Public Square, Helen L. Norton

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No abstract provided.

Electoral Maintenance, Douglas M. Spencer

Publications

According to the U.S. Supreme Court, the right to vote is fundamental because it is preservative of all rights, and yet in many cases legal protections for the right to vote fall short of protections for the other rights that voting is meant to preserve. Redefining the right to vote cannot solve this problem alone. Election administration has at least as much consequence on the right to vote as any particular definition or legal theory. In Democracy’s Bureaucracy, Michael Morse draws our attention to one of the most important yet understudied issues of election administration: voter list maintenance. In addition …

Constitutional Norms And State Judicial Confirmations, Adam B. Sopko

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No abstract provided.