Constitutional Law Commons^™

Our Constitution As Federal Treaty: A New Theory Of United States Constitutional Construction Based On An Originalist Understanding For Addressing A New World, Francisco Forrest Martin

UC Law Constitutional Quarterly

This Article argues that the Constitution is a federal treaty based on an originalist understanding. As a treaty, it must be construed in conformity with the U.S.' customary international legal obligations, according to the international law governing treaties. Furthermore, these customary international legal norms often will take primacy over the major general principles of constitutional construction (viz., the principles of federalism, separation of powers, and the "living Constitution") because these international legal norms often are more determinate and less judicially-constructed than general principles of constitutional construction yet these norms can still accommodate these general principles. Furthermore, unlike other theories of …

Exorcizing Wechsler's Ghost: The Influence Of The Model Penal Code On Death Penalty Sentencing Jurisprudence, Russell Dean Covey

UC Law Constitutional Quarterly

The constitutional law of capital sentencing currently is torn between its past and its future, its inheritance of a utilitarian, offender-based, sentencing theory and the powerful contemporary resurgence of retributivism as the dominant justification for criminal punishment. The basic procedural and jurisprudential structures all originated as the offspring of an explicitly nonretributive penal theory crafted in large part by Herbert Wechsler and codified in the Model Penal Code. To bring death penalty procedure more in line with contemporary understandings of the death penalty's theoretical and moral justification, the ghost of Herbert Wechsler must be exorcized from the constitutional law of …

Houses Built On Sant: Police Expert Testimony In California Gang Prosecutions; Did Gardeley Go Too Far, Patrick Mark Mahoney

UC Law Constitutional Quarterly

In 1998, faced with a gang-violence epidemic, California passed the Street Terrorism Enforcement and Prevention Act ("STEP"), becoming the first state to enact a law specifically targeting criminal street gangs. Through STEP, California courts began to gradually expand the scope of evidence admissible to prove gang membership and to loosen restrictions on expert testimony regarding gang behavior. This trend culminated in People v. Gardeley, in which the California Supreme Court upheld an extremely broad view of permissible uses of expert testimony. This note argues that not only did Gardeley goes too far, but also that in its Gardeley decision the …

Federal Regulation Of Embryonic Stem Cells: Can Government Do It - An Examination Of Potential Regulation Through The Eyes Of California's Recent Legislation, Francesca Crisera

UC Law Constitutional Quarterly

The debate surrounding stem cell research, particularly embryonic stem cell research, is one involving much acrimony, both at the research and practical stages. Such research holds the potential for abuse if not responsibly undertaken. This does not mean, however, that embryonic stem cell research should be prohibited subject to the whims of opponents in Congress. Rather, California has taken the proper step by endorsing embryonic stem cell research, while maintaining guidelines to oversee it.

United States V. Kincade: Constitutionality Of Mandatory Dna Testing, Joy Huang

UC Law Constitutional Quarterly

In 2000, Congress passed the DNA Analysis Backlog Elimination Act ("DNA Act"), mandating DNA samples from certain types of felons to be included in the FBI's Combined DNA Index System ("CODIS"). Since its inception, the DNA Act has faced many constitutional challenges, most recently in the 9th Circuit with the case United States v. Kincade, which involved two successive Ninth Circuit cases. The first case was decided on October 2, 2003, wherein a three-judge panel controversially deemed the DNA Act unconstitutional. The decision was subsequently vacated and reheard by the Ninth Circuit sitting en banc, in which the Circuit Court …

The Special Public Purpose Forum And Endorsement Relationships: New Extensions Of Government Speech, Mary Jean Dolan

UC Law Constitutional Quarterly

The public and private sectors partner in a growing number of projects with expressive dimensions, as governments follow marketing trends and also leverage their resources to produce cultural programs. This creates ever more complex First Amendment issues because such joint enterprises exist at the intersection of two overlapping, but contradictory, paradigms: the limited public forum and government speech. Under the limited public forum test, government ostensibly may set reasonable content limitations when it opens up property and programs to private speakers, so long as its selections are viewpoint neutral. There is no clear line between viewpoint and content, however, and …

The California Supreme Court And State Constitultional Rights: The Early Years, Joseph R. Grodin

UC Law Constitutional Quarterly

The period from 1849 to 1865 was a tumultuous time for the people of California and for its Supreme Court. Consisting at the time of only three justices, the court was called upon to decide claims that went to the heart of the divisions that wrenched the state, over slavery, land ownership, religion, and race. Some of these were constitutional claims that might today be asserted under the federal Bill of Rights, but at the time (since the Bill of Rights was deemed inapplicable to the states) they were considered under the Declaration of Rights, Article I, of the state …

Justice Byron White And The Importance Of Process, Carl Tobias

UC Law Constitutional Quarterly

Professor Tobias pays tribute to Byron R. White, who was a twentieth-century Renaissance person. At the University of Colorado, he captured honors as the valedictorian and as an All-American football player. In 1939, White attended Oxford University on a Rhodes Scholarship. He then compiled the best academic record in the Yale Law School first-year class and later served as a judicial clerk for Chief Justice Fred Vinson. During 1962, President John F. Kennedy appointed White to the Supreme Court, and the jurist rendered distinguished service for three decades.

This essay affords three examples of White's acute sensitivity to process. One …

Supreme Court Voting Behavior: 2001 Term, Richard G. Wilkins, Scott Worthington, Adam Becker, Sara Becker

UC Law Constitutional Quarterly

This Study, the sixteenth in a series, tabulates and analyzes the voting behavior of the United States Supreme Court during the 2001 Term. The analysis is designed to determine whether individual Justices and the Court as a whole are voting more "conservatively," more "liberally," or about the same when compared with past Terms. This Study attempts to remove subjectivity by applying a consistent classification scheme to ten categories of cases over time. This Term's data strongly suggests that the present Court stands in an uneasy ideological balance. The Court's voting behavior during the 2001 Term reverses the modest liberal trend …

The Sound Of Silence: Thoughts Of A Sitting Judge On The Problem Of Free Speech And The Judiciary In A Democracy, Robert H. Alsdorf

UC Law Constitutional Quarterly

In the recent case of Republican Party of Minnesota v. White, the Supreme Court proclaimed a First Amendment right of free speech for elected judges. The majority's holding is marked by a critical omission: it reached its decision without performing an analysis of the role of either the state or the federal judiciary in the American democracy. The Court failed to acknowledge the Founders' apparent intent that state and federal courts perform the same function.

In our democratic and adversarial system, judges are to act essentially as referees, as impartial decision-makers. Judicial officers do not act in a representative capacity …

Does The Constitutional Right To Privacy Protect Forced Disclosure Of Sexual Orientation, Anne C. Hydorin

UC Law Constitutional Quarterly

After the Supreme Court's holding in Bowers v. Hardwick, the Third and Fourth Circuits were split over whether Bowers impliedly extended to forced disclosure of sexual orientation and private homosexual activity. This Note argues that Bowers does not protect forced disclosure of sexual orientation and that the Constitution protects our right to "be let alone" and preserves expected matters of confidentiality from unwarranted government intrusion. In other words, certain private matters must be beyond the unfettered reach of the state. Permitting the government to force an individual to disclose his or her sexual orientation offends this privacy jurisprudence. The Note …

Foreword, Hastings Constitutional Law Quaterly

UC Law Constitutional Quarterly

No abstract provided.

The Too-Many-Minorities And Racegoating Dynamics Of The Anti-Affirmative-Action Position: From Bakke To Grutter And Beyond, Ronald Turner

UC Law Constitutional Quarterly

Twenty five years ago, in Regents of the University of California v. Bakke, the United States Supreme Court validated certain considerations and uses of race in university and college admissions decisions. Writing only for himself in one part of the Bakke Court's opinion, Justice Powell expressed his view that the attainment of a diverse student body was a constitutionally permissible goal for an institution of higher education. A quarter century later, in the University of Michigan affirmative action cases discussed in this article, a majority of the Court endorsed Powell's view that the compelling state interest in student body diversity …

Public School Assignment Methods After Grutter And Gratz: The View From San Francisco, David I. Levine

UC Law Constitutional Quarterly

This Article first discusses the potential impact of Grutter and Gratz on student assignment plans in public elementary and secondary schools. Professor Levine concludes that public school officials who desire to use race in making student assignment decisions probably will be able to articulate a compelling governmental interest under Gruter. However, under Gratz, they will have significant difficulty in meeting the narrow tailoring prong of strict scrutiny analysis if they seek to use race as an express, mechanical means of selecting and assigning students. Because school districts will search for race-neutral assignment plans as they attempt to comply with both …

The Benign-Invidious Asymmetry In Equal Protection Analysis, R. Richard Banks

UC Law Constitutional Quarterly

No abstract provided.

The Evolution Of Equality In American Law, Gerald Torres

UC Law Constitutional Quarterly

No abstract provided.

Admissions Of A Director, Sarah C. Zearfoss

UC Law Constitutional Quarterly

The admissions process at one of the nation's most prestigious law schools is as much art as it is science. Sarah Zearfoss, Director of Admissions and Assistant Dean at the University of Michigan Law School, offers a firsthand account of the school's admissions program. In the process she answers the commonly asked question, just what do admissions committees take into account when they review an application? She describes the Law School's admissions program from a functional point of view, and explains why the concept of diversity embodies far more than race. She also refutes Justice Rehnquist's analysis in dissent in …

The Promise And Preconditon Of Education Autonomy, Neal Kumar Katyal

UC Law Constitutional Quarterly

In this article, Professor Katyal, who filed the "educational autonomy" amicus brief in Grutter on behalf of Deans at the nation's leading private law schools, defends the view that universities have a zone of freedom to pursue Bakke-style affirmative action but outlines some strong limits on such autonomy. The Court's principle of educational autonomy is anchored in judicial precedent and common sense, but, like all forms of judicial deference, such autonomy must be carefully circumscribed. In particular, Professor Katyal argues that if a law school seeks to use educational autonomy as part of its defense of its admissions process, its …

High School Drug Testing And The Original Understanding Of The Fourth Amendment, David E. Steinberg

UC Law Constitutional Quarterly

In Board of Education v. Earls, the United States Supreme Court recently held that a high school drug testing programs did not violate the Fourth Amendment to the United States Constitution. The Earls Court reached the correct result, but for the wrong reasons. A review of historical evidence indicates that the framers adopted the Fourth Amendment to deal with a single, specific issue. The framers sought to proscribe physical searches of residences pursuant to general warrants, or without any warrant at all.

Discussion of unreasonable searches in the late eighteenth century primarily focused on three controversies - the John Wilkes …

Constitutional Sunsetting: Justice O'Connor's Closing Comments In Grutter, Vikram David Amar, Evan Caminker

UC Law Constitutional Quarterly

In this essay, Professors Amar and Caminker discuss the observation Justice O'Connor's majority opinion in Grutter makes that "[wie expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today." While they acknowledge the highly ambiguous nature of this sentence, Amar and Caminker hypothesize this passage as a warning from the Court that it will not necessarily rule a quarter century from now the way it did last summer, even if the underlying demographic facts remain the same. Amar and Caminker discuss how this possible reading fits in with …

The Legal Cost Of The Split Double Header Of Gratz And Grutter, Wendy Parker

UC Law Constitutional Quarterly

In this article, Professor Parker examines Justice Scalia's prediction that the "split double header" of Gratz and Grutter - which seemingly contradict one another - will result in a dramatically increased amount of litigation and become a never-ending aggravation for both students and educators because of uncertainty in distinguishing between constitutional racial activity and unconstitutional kind racial activity. Justice Scalia further predicts that post-Gratz/Grutter litigation will draw all racial groups - the majority group, underrepresented minority groups, and overrepresented minority groups - as plaintiffs, and he proposes an all-or-nothing approach: Outlaw all racial preferences in the public education setting or …

Freedom Of Speech And The Language Of Architecture, Kevin G. Gill

UC Law Constitutional Quarterly

Frank Lloyd Wright's Fallingwater, in Bear Run, Pennsylvania, is a celebrated architectural masterpiece of groundbreaking vision and design ingenuity. Today unfortunately, in many municipalities, strict design controls prevent architects from designing such visionary work. These controls preclude buildings that do not mimic a certain architectural style, or otherwise conform to the neighborhood. They are promulgated on notions of community harmony; the argument is made that unconventional architectural design is somehow discordant and will adversely affect property values.

Architecture has been called humanity's greatest form of expression. Architecture can be a physical expression of philosophical, religious, political, and aesthetic ideas and …

In For A Calf Is Not Always In For A Cow: An Analysis Of The Constitutional Right Of Anonymity As Applied To Anonymous E-Commerce, Sharon K. Sandeen

UC Law Constitutional Quarterly

The ability of Internet users to be anonymous is often touted as one of the benefits of the Internet. It is argued that anonymity on the Internet should be protected because it enhances the free exchange of ideas and helps preserve individual privacy. But anonymous on-line communications have an obvious darkside. Anonymous Internet messages and advertisements increase the potential for fraud by making it difficult, if not impossible, for the true identities of communicants to be traced. This article explores the tension that exists between efforts to regulate anonymous Internet communications and the free speech principles of the First Amendment. …

Direct Democracy And Civic Maturation, Alan Hirsch

UC Law Constitutional Quarterly

Should American government make greater use of "direct democracy," whereby citizens make laws through plebiscites? Roughly half the states utilize some form of direct democracy, and there is an ongoing debate over whether this form of lawmaking should be introduced in other states and even to the federal government. Many of the arguments against direct democracy are unconvincing, but advocates of direct democracy have not made a sufficiently compelling argument on its behalf. This article explores a new argument for direct democracy - that it is necessary to promote the civic maturation of America's polity. The founders considered a virtuous …

Power Of Pregnancy: Examining Constitutional Rights In A Gestational Surrogacy Contract, Alayna Ohs

UC Law Constitutional Quarterly

Modern technology has changed the way we look at pregnancy. Some parties seeking to utilize new technologies have entered into gestational surrogacy contracts, where a genetically unrelated woman acts as a surrogate, gestating an implanted embryo. While surrogacy contracts allow many people to parent in situations that might not otherwise be possible, they often fail to account for the important Constitutional interests of the gestational surrogate. This note argues that the idea of motherhood must be reconceputalized in the gestational surrogacy contract, so that the rights accorded to the surrogate are recognized as rights distinct from those of the "mother." …

Supreme Court Voting Behavior: 2000 Term, Richard G. Wilkins, Scott Worthington, Carter K. F. Chow, Sarah K. L. Chow

UC Law Constitutional Quarterly

This Study, the fifteenth in a series, tabulates and analyzes the voting behavior of the United States Supreme Court during the 2000 Term. The analysis is designed to determine whether individual Justices and the Court as a whole are voting more "conservatively," more "liberally," or about the same when compared with past Terms. This Term's survey shows mixed results, but suggests slight liberal movement for the Court as a whole, following last Term's conservative voting trend. The Court voted more liberally in six of the ten categories of the Study this Term compared to last Term. However, the strength of …

Should We Have Faith In The Faith-Based Initiative: A Constitutional Analysis Of President Bush's Charitable Choice Plan, Andrea Pallios

UC Law Constitutional Quarterly

This Note addresses the question of the constitutionality of President Bush's charitable choice initiative. Under this plan, the federal government would provide funding to faith-based organizations that provide community services. The constitutional question is difficult to assess for two reasons. First, most Supreme Court Establishment Clause cases address federal funding of religious schools, not charities. The Supreme Court has only considered the funding of religious charities twice, and only once during the 20th century. Neither of these cases is dispositive in the case of charitable choice. Second, over the past thirty years, the Supreme Court has used a variety of …

Access To The Airways After September 11: Do Aviation Businesses Devasted By The Restrictions Have A Fifth Amendment Remedy, Elton Ueoka Dodson

UC Law Constitutional Quarterly

The terrible events of September 11, 2001, led to a great fear that our airspace would again be used as a tool of terror. Unfortunately, general aviation, a sector of aviation not involved in the attacks, was disproportionately affected by the severe and sometimes questionable airspace restrictions that followed. Arguably, Americans have a right to use our nation's airspace, much like a public highway, subject only to reasonable government regulations. This Note sets out the historical and legal Fifth Amendment takings arguments which may grant general aviation business owners severely affected by the airspace restrictions a remedy.

Specifically, this Note …

A Third Theory Of Liberty: The Evolution Of Our Conception Of Freedom In American Constitutional Thought, John Lawrence Hill

UC Law Constitutional Quarterly

With the publication of Isaiah Berlin's essay, "Two Concepts of Liberty," liberals and their adversaries came to view their respective positions as expressions of a deeper philosophical gulf between two opposed ideas of freedom - what Kant first dubbed the "negative" and "positive" ideas of liberty. Negative liberty, or "freedom from," represented the classical liberal conception of freedom, while positive liberty or "freedom to" is vouchsafed by civic republicans, progressive liberals, socialists and others. Negative liberty was associated with the absence of constraint and, more specifically, with individual rights and limits upon government power while positive liberty was usually interpreted …

Youngstown Revisited, Christopher Bryant, Carl Tobias

UC Law Constitutional Quarterly

In Youngstown Sheet & Tube Co. v. Sawyer, the U.S. Supreme Court struck down as unconstitutional President Truman's 1952 executive order authorizing federal government seizure and operation of the nation's steel mills. In this article, Professors Bryant and Tobias apply this landmark precedent to the provisions of President Bush's November 13, 2001 military courts executive order that purport to authorize indefinite detention of covered individuals and to preclude them from invoking the jurisdiction of the federal courts.

In this article, the authors first examine the constitutional text, history, and relevant Supreme Court authority supporting the conclusion that Congress, not the …