Constitutional Law Commons^™

“The Cruelty Is The Point”: Using Buck V. Bell As A Tool For Diversifying Instruction In The Law School Classroom, Tiffany C. Graham

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Instructors who are looking for opportunities to expose their students to the ways in which intersectional forms of bias impact policy and legal rules can use Buck v. Bell to explore, for instance, the impact of disability and class on the formation of doctrine. A different intersectional approach might use the discussion of the case as a gateway to a broader conversation about the ways in which race and gender bias structured the implementation of sterilization policies around the nation. Finally, those who wish to examine the global impact of American forms of bias can use this case and the …

Alexander Hamilton And Administrative Law: How America’S First Great Public Administrator Informs And Challenges Our Understanding Of Contemporary Administrative Law, Rodger D. Citron

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Alexander Hamilton’s recognition and reputation have soared since the premiere of “Hamilton,” Lin-Manuel Miranda’s musical about him in 2015. For lawyers, Hamilton’s work on the Federalist Papers and service as the nation’s first Treasury Secretary likely stand out more than other aspects of his extraordinary life. Politics and economics were fundamental concerns addressed by the Framers in a number of ways, including what we now refer to as administrative law—the laws and procedures that guide government departments (or, as we say today, agencies). Indeed, “Hamilton” reminds us that questions of administration and administrative law have been with us since the …

Intentional Discrimination And Haredi Jews, Michael Lewyn

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A discussion of case law involving discrimination suits by Haredi Jews, especially in the land use context.

Law And Redemption: Expounding And Expanding Robert Cover’S Nomos And Narrative, Samuel J. Levine

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This Article explores two interrelated themes that distinguish much of Robert Cover's scholarship: reliance on Jewish sources and the redemption of American constitutionalism. Two pieces of Cover's, Nomos and Narrative and Bringing the Messiah Through the Law: A Case Study, explore these themes, providing complementary views on the potential and limitations of the redemptive power of law. In Nomos and Narrative, Cover develops a metaphor of the law as a bridge, linking the actual to the potential. Bringing the Messiah Through the Law: A Case Study extends the metaphor through the lens of Jewish legal history. Building on Cover's foundation, …

Codifying Antisemitism, Mark Goldfeder

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Antisemitic harassment and discrimination are unlawful in many contexts, but without a standard definition of what 'antisemitism' includes, that idea is almost meaningless. This has led to an equal protection problem for members of the Jewish community, which is why states across the country have started to pass laws adopting the International Holocaust Remembrance Alliance ("IHRA") Definition of antisemitism for use in clarifying the application of existing legal protections for Jewish people from crime and discrimination. Thus far, the bills that have passed have for the most part been overwhelmingly bipartisan, but there have been minor pockets of pushback in …

American Religious Liberty Without (Much) Theory: A Review Of Religion And The American Constitutional Experiment, 5th Edition, Nathan S. Chapman

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Book review of Religion and the American Constitutional Experiment, 5th ed. By John Witte Jr., Joel A. Nichols, and Richard W. Garnett. Oxford: Oxford University Press, 2022. Pp. 464. $150.00 (cloth); $39.95 (paper); $26.99 (digital). ISBN: 9780197587614.

"The Arc Of The Moral Universe": Christian Eschatology And U.S. Constitutionalism, Nathan Chapman

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At the heart of American constitutionalism is an irony. The United States is constitutionally committed to religious neutrality; the government may not take sides in religious disputes. Yet many features of constitutional law are inexplicable without their intellectual and cultural origins in religious beliefs, practices, and movements. The process of constitutionalization has been one of secularization. The most obvious example is perhaps also the most ideal of liberty of conscience that fueled religious disestablishment, free exercise, and equality was born of a Protestant view of the individual’s responsibility before God.

This Essay explores another overlooked instance of constitutional secularization. Many …

Presuming Trustworthiness, Ronnell Andersen Jones, Sonja R. West

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A half-century ago, the U.S. Supreme Court often praised speakers performing the press function. While the Justices acknowledged that press reports are sometimes inaccurate and that media motivations are at times less than public-serving, their laudatory statements nonetheless embraced a baseline presumption of the value and trustworthiness of press speech in general. Speech in the exercise of the press function, they told us, is vitally important to public discourse in a democracy and therefore worthy of protection even when it falls short of the ideal in a given instance. Those days are over. Our study of every reference to the …

National Federation Of Independent Business V. Sebelius, 567 U.S. 519 (2012), Elizabeth Weeks, Mary Ann Chirba, Alice A. Noble

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In National Federation of Independent Business v. Sebelius, decided in 2012, twenty-six states as well as private individuals and an organization of independent businesses challenged the constitutionality of two key components of the Affordable Care Act. The Court upheld the individual mandate but converted the Medicaid eligibility expansion from mandatory to optional for states. Elizabeth Weeks’ feminist rewrite breaks down the public law-private law distinction to get beyond the traditional view of health insurance as a commercial product providing individual financial protection against risk and instead to view it as effecting a risk pool premised on cross-subsidization of the health-care …

State Constitutional Law: Standing To Litigate Public Rights In Georgia Courts, Randy Beck

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State courts interpreting state constitutions face the recurring issue of how much weight to afford Supreme Court of the United States precedent addressing comparable questions under the United States Constitution. At one end of the spectrum, many state courts routinely engage in what federal Judge Jeffrey Sutton calls “lockstepping,” importing federal doctrine wholesale into state decisional law. For a court engaged in lockstepping, concepts like freedom of speech or equal protection of the laws under a state constitution mean whatever the U.S. Supreme Court interprets them to mean under the federal Constitution, even if the state provision differs in potentially …

The Case For The Current Free Exercise Regime, Nathan Chapman

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How the Supreme Court ought to implement the Free Exercise
Clause has been one of the most controversial issues in U.S. rights discourse
of the past fifty years. In Fulton v. City of Philadelphia, a majority of the
justices expressed dissatisfaction with the standard articulated in
Employment Division v. Smith, but they could not agree on what ought to
replace it. This Essay argues that focusing on whether to overrule Smith is a
distraction from the sensitive task of implementing the Free Exercise Clause.
This is not because Smith was “right,” but because (1) the history and
tradition are both …

Absolute Official Immunity In Constitutional Litigation, Michael L. Wells

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Absolute official immunity blocks recovery for constitutional violations that occur in the course of legislative, judicial, prosecutorial, and testimonial functions, no matter how egregiously the officer has acted. The basic policy underlying the doctrine is that constitutional litigation will produce unacceptable social costs, mainly by discouraging officials from acting boldly and effectively in the public interest. It may be necessary to sacrifice the vindication of constitutional rights and deterrence of violations in some circumstances, but the Court’s broad function-based limits give too much weight to the costs of constitutional remedies and pays too little attention to the vindication and deterrence …

Firearms Regulation Through Constitutional Litigation, Hillel Y. Levin, Timothy D. Lytton

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The U.S. Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen puts the Court firmly in charge of U.S. firearms policy. The decision also marks the beginning of a new era in which constitutional litigation will replace state and federal legislation as the primary means of resolving deep and enduring disagreements over how to regulate guns.

The Court’s Bruen decision contrasts with its decision in Dobbs v. Jackson Women’s Health Organization, overruling Roe v. Wade, where it declared that “the authority to regulate abortion is returned to the people and their elected representatives.” The …

Crisis Pregnancy Centers: An Inherently Unjust Limitation To Reproductive Rights, Rebecca Feinberg, Danielle Pacia

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This paper’s purpose is two-fold. First, it presents an ethical analysis that details why the current practices of Crisis Pregnancy Centers (CPCs) are unethical and violate women’s reproductive freedom. Second, it proposes policy solutions to mitigate inequities and disinformation caused by the practices of CPCs, in an attempt to protect the women who, fall prey to their services

Intentional Discrimination And Haredi Jews, Michael Lewyn

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No abstract provided.

Why Arkansas Act 710 Was Upheld, And Will Be Again, Mark Goldfeder

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The recent Eighth Circuit ruling in Arkansas Times, LP v. Waldrip, a lawsuit revolving around an Arkansas state anti-discrimination bill, has been widely misreported and generally misunderstood. While the decision was actually very narrow, case-specific, and ripe for review, the misleading information presented to the public has led to speculation and fear that similar anti-discrimination legislation in dozens of other states might somehow be constitutionally deficient. This essay will clarify what actually happened in the Arkansas case, and explain why legislators and advocates around the country do not have to worry about this very limited opinion affecting the legality of …

Nomos And Nation: On Nation In An Age Of "Populism", John Valery White

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Robert Cover's Nomos and Narrative points to the need to recognize a second, novel dimension for understanding rights. His concept of nomos, applied to competing notions of nation in pluralistic societies, suggests that the current dimension for understanding rights, which conceives of them fundamentally as protections for the individual against the state, is too narrow. Rather a second dimension, understanding rights of individuals against the nation, and aimed at ensuring individuals' ability to participate in the development of an idea of nation, is necessary to avoid "a total crushing of the jurisgenerative character" of nomoi by the state, or by …

What Did Those Sixteen Justices Say?, Leslie C. Griffin

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Everyone is finally noticing that the current Supreme Court is changing its jurisprudence on religious freedom. The commentators are finally paying more attention to the fact that seven of the Court's current Justices were raised Catholic. What role have Catholics played in the Supreme Court's history? This article traces their contributions on religious freedom and civil rights, starting with Chief Justice Taney and ending with Justice Barrett.

Regulatory Constitutional Law: Protecting Immigrant Free Speech Without Relying On The First Amendment, Michael Kagan

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No abstract provided.

Supreme Risk, Benjamin P. Edwards

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While many have discussed the social issues that might arise because of a majority-conservative Supreme Court, one critical consequence of the current Court has been overlooked: the role of the Court in generating or avoiding systemic risk. For some time, systemic financial risk has been regulated by a mix of self-regulatory organizations (SROs), such as the Depository Trust Corporation, and federal regulators such as the Financial Stability Oversight Council (FSOC). However, the Court's recent jurisprudence now creates real risk that federal courts will declare keystone SROs unconstitutional because they do not fit neatly into an eighteenth-century constitutional framework.

SROs are …

The Constitutional Costs Of School Policing, Maryam Ahranjani, Natalie Saing

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Responding to fears of violence and liability on K-12 campuses, local school boards and superintendents have made on-site or embedded school police omnipresent in American public schools. Yet, very little attention is paid to the many costs associated with their presence. When situating law enforcement's presence squarely in the racist history of policing and school policing the juxtaposition with the civic purpose of public education reveals significant constitutional costs. This Article builds on existing scholarship by bringing attention to the conflict between the First, Fourth, Fifth, Eighth, and Fourteenth Amendments and the dimensions of embedded school police. Ultimately, schools must …

The Supreme Court’S Hands-Off Approach To Religious Questions In The Era Of Covid-19 And Beyond, Samuel J. Levine

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No abstract provided.

Las Medidas De “Acomodación” De La Religión En El Derecho Estadounidense [Accommodation Of Religion In U.S. Law], Michael W. Mcconnell, Nathan Chapman

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En este trabajo se analizan las medidas de acomodación de la religión, que gozan de una gran tradición en el derecho constitucional de los Estados Unidos, así como los debates que han generado desde el punto de vista de su conformidad con las cláusulas de la Primera Enmienda de la Constitución de los Estados Unidos: la cláusula de no establecimiento de una religión oficial y la cláusula de libre ejercicio de la religión. A lo largo del trabajo se analiza la principal jurisprudencia recaída sobre las medidas de acomodación y los test que se han construido para enjuiciarlas.

[This paper …

Popular Enforcement Of Controversial Legislation, Randy Beck

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Texas opted for popular enforcement of Senate Bill 8 (S.B. 8), prohibiting abortion once a fetal heartbeat can be detected. In an effort to prevent pre-enforcement judicial review, the legislature precluded enforcement of the statute by government officials. Instead, any member of the public may sue for statutory damages of at least $10,000 from any person who (1) performs an abortion violating the statute, (2) knowingly aids or abets such an abortion, or (3) “intends” to perform or aid and abet such an abortion.

The cause of action authorized by S.B. 8 is a “popular action,” a once common method …

How Chevron Deference Fits Into Article Iii, Kent H. Barnett

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U.S. Supreme Court Justices Clarence Thomas and Neil Gorsuch, along with Professor Philip Hamburger, assert that Chevron deference-under which courts defer to reasonable agency statutory interpretations-violates Article III. Chevron does so because, they argue, it either permits agencies, not courts, "to say what the law is" or requires judges to forgo independent judgment by favoring the government's position. If they are correct, Congress could not require courts to accept reasonable agency statutory interpretations under any circumstances. This Article does what these critics, perhaps surprisingly, do not do-situates challenges to Chevron within the broad landscape of the Court's current Article III …

Some Objections To Strict Liability For Constitutional Torts, Michael Wells

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Qualified immunity protects officials from damages for constitutional violations unless they have violated "clearly established" rights. Local governments enjoy no immunity, but they may not be sued on a vicarious liability theory for constitutional violations committed by their employees. Critics of the current regime would overturn these rules in order to vindicate constitutional rights and deter violations.

This Article argues that across-the-board abolition of these limits on liability would be unwise as the costs would outweigh the benefits. In some contexts, however, exceptions may be justified. Much of the recent controversy surrounding qualified immunity involves suits in which police officers …

Ruth Bader Ginsburg, Wise Legal Giant, Thomas A. Schweitzer

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No abstract provided.

Nine Ways Of Looking At Oklahoma City: An Essay On Sam Anderson’S Boom Town, Rodger D. Citron

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No abstract provided.

The People's Court: On The Intellectual Origins Of American Judicial Power, Ian C. Bartrum

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This article enters into the modern debate between "constitutional departmentalists"-who contend that the executive and legislative branches share constitutional interpretive authority with the courts-and what are sometimes called "judicial supremacists." After exploring the relevant history of political ideas, I join the modern minority of voices in the latter camp.

This is an intellectual history of two evolving political ideas-popular sovereignty and the separation of powers-which merged in the making of American judicial power, and I argue we can only understand the structural function of judicial review by bringing these ideas together into an integrated whole. Or, put another way, we …

Distributed Federalism: The Transformation Of Younger, Anne R. Traum

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For decades federal courts have remained mostly off limits to civil rights cases challenging the constitutionality of state criminal proceedings. Younger abstention, which requires federal courts to abstain from suits challenging the constitutionality of pending state prosecutions, has blocked plaintiffs from bringing meritorious civil rights cases and insulated local officials and federal courts from having to defend against or decide them. Younger’s reach is broad. It has forced political protestors (from the Vietnam era to Black Lives Matter) to challenge the constitutionality of their arrests and prosecutions within their state criminal proceedings. The doctrine also has made it difficult to …