Constitutional Law Commons^™

The Iron Law Of Full Faith And Credit, William L. Reynolds

Maryland Law Review

No abstract provided.

A Conflict Of Laws And Morals: The Choice Of Law Implications Of Hawaii's Recognition Of Same-Sex Marriages, Joseph W. Hovermill

Maryland Law Review

No abstract provided.

A Bill Of Rights For The Twenty-First Century, Richard L. Nygaard

UC Law Constitutional Quarterly

This Essay was originally delivered as a speech to the Erie County Bar Association on Law Day, 1993. It examines the United States's and other countries' experiences with developing bills of rights and proposes a new bill of rights to be used by emerging democracies in the twenty-first century.

The Invidiousness Of Invidiousness: On The Supreme Court's Affirmative Action Jurisprudence, Mark Strasser

UC Law Constitutional Quarterly

The Supreme Court's invidious discrimination jurisprudence has manifested a pattern in which one sense of "invidious" is used in certain kinds of cases and a different sense in other (although relevantly similar) kinds of cases. The Court's decisions are inconsistent with respect to both when the Court will presume antipathy and to when the presence of antipathy will be either a necessary or a sufficient condition for a policy's unconstitutionality. Both patterns disadvantage minorities. Examples are offered from both higher education and employment contexts. It is exactly this kind of patterned, subtle alteration both of the meanings of key terms …

What Is The Court Trying To Establish: An Analysis Of Lee V. Weisman, Dina F. El-Sayed

UC Law Constitutional Quarterly

Lee v. Weisman marked a new turn in Establishment Clause jurisprudence. In Lee, the United States Supreme Court declared that prayers delivered as part of a public school graduation ceremony violate the Establishment Clause of the First Amendment. In holding the prayers unconstitutional, the Court invented a new framework for analyzing Establishment Clause cases-the coercion test. By invoking the coercion test without clarifying the status of the test previously developed in Lemon v. Kurtzman, the Court has left the law in a state of confusion. This Comment does not discuss whether graduation prayers should be constitutional. Rather, it criticizes the …

Standards Of Review And Constitutional Analysis Of Health Care Issues, Roy G. Spece Jr.

UC Law Constitutional Quarterly

No abstract provided.

Federalism And Judicial Review: An Update, Jesse H. Choper

UC Law Constitutional Quarterly

This Commentary argues that the Court decided New York v. United States incorrectly. The Court failed to take into account both the highly pragmatic nature of federal-state questions and the extent to which state interests are represented in the national political process. The Court, instead, should have followed the author's "Federalism Proposal" whereby all issues of federalism arising under the Tenth Amendment are deemed non-justiciable and are left to the political branches for resolution. This Commentary illustrates the shortcomings of the New York approach in the context of national health care regulation.

Constitutional Impediments To National Health Reform: Tenth Amendment And Spending Clause Hurdles, Candice Hoke

UC Law Constitutional Quarterly

Reform of health policy, via federal legislation appears to be a primary goal of both the President and Congress. Most of the leading bills introduced in 1993-94 attempt to utilize both state governmental power and the state fisc to achieve federal reforms, and many directly order state governments to enact appropriate legislation and execute the federal programs. After New York v. United States, national regulatory programs are subject to new scrutiny under the Tenth Amendment if they command state governments to implement federal programs. The Supreme Court has also cautioned against uses of the spending power that virtually compel state …

Doing It With Mirrors: New York V. United States And Constitutional Limitations On Federal Power To Require State Legislation, Martin H. Redish

UC Law Constitutional Quarterly

This Commentary points out that the decision in New York v. United States is flawed because the Court improperly equated the "enclave" model of federal power, which recognizes defined areas of state sovereignty, with the "enumerated powers" model, which merely inquires whether federal action falls within the scope of the federal government's enumerated power. Due to its structure, the Tenth Amendment should be analyzed solely under the "enumerated powers" model. This Commentary suggests that the limits of federal power over the states are properly found in and defined by the Commerce Clause.

Reply To Professor Brewbaker, Thomas W. Merrill

UC Law Constitutional Quarterly

No abstract provided.

Rejoinder To Professor Merrill, William S. Brewbaker Iii

UC Law Constitutional Quarterly

No abstract provided.

Constitutional Challenges To Bans On Assisted Suicide: The View From Without And Within, Robert A. Sedler

UC Law Constitutional Quarterly

This Article analyzes constitutional challenges to bans on "assisted suicide" from the dual perspectives of an academic commentator and a constitutional litigator. The focus is on the application of such bans to the terminally ill. An absolute ban on the use of physician-prescribed medications by a terminally ill person to hasten that person's inevitable death, if and when the person chooses to do so, is an "undue burden" on that person's constitutionally protected liberty interest in personal autonomy. The "preserving life" justification typically asserted for bans on assisted suicide is insufficient in the case of a terminally ill person because …

Out, Out Brief Candle: Constitutionally Prescribed Suicide For The Terminally Ill, Thomas J. Marzen

UC Law Constitutional Quarterly

Proponents of assisted suicide claim a constitutional right for competent adults with terminal conditions or unbearable suffering to receive a physician-prescribed lethal dose of drugs. Critics respond that any such right cannot be confined to such narrow categories in view of the abortion and withdrawal-of-treatment precedents and the force of reason and experience. Beyond the "slippery slope" that any constitutionally protected liberty to assisted suicide portends, such an asserted right has no historical basis and cannot be derived from principals implicit in the Fourteenth Amendment to the Constitution. The claim that "rational" assisted suicide is a right presumes a set …

Womb For Rent: Norplant And The Undoing Of Poor Women, Jeanne L. Vance

UC Law Constitutional Quarterly

In a desperate effort to cut government costs, many state legislators have introduced bills that would pay women on welfare to be surgically implanted with the longlasting contraceptive Norplant. This Note explores the constitutionality of these proposals by analyzing traditional and developing privacy law, the interplay between constitutional rights and the receipt of public benefits, and the equal protection doctrine as it applies to gender classifications. This Note argues for a constitutional interpretation that takes into account social conditions behind legislation and concludes that, under any of these doctrines, the described proposals would be unconstitutional.

Tribute To Professor William B. Lockhart, Mary Kay Kane

UC Law Constitutional Quarterly

No abstract provided.

The Constitution Of The Czech Republic Of 1992, George E. Glos

UC Law Constitutional Quarterly

The Czech Republic adopted a new constitution in 1992, following the division of Czechoslovakia into the Czech and Slovak Republics. In many ways the Constitution of 1992 recalls the formative days of Czech democracy, when the country was born in the aftermath of World War I. Today's constitution is largely based on the Czechoslovak Constitution of 1920, yet follows a long period of inattention to constitutional issues. The author, now, with the Library of Congress, received his legal training in Czechoslovakia. In this Article, he elucidates the basic tenets of the new constitution, and, in the process, compares it with …

Presidential Defiance Of Unconstitutional Laws: Reviving The Royal Prerogative, Christopher N. May

UC Law Constitutional Quarterly

The yet to be authorized 'line item veto' advocated by recent administrations pales in comparison to the 'absolute item veto' already wielded by an 'Imperial Presidency'. When the Executive refuses to enforce disfavored statutes, the effect is a veto without Congressional override. Can such a power be reconciled with our government scheme? A review of the Framer's intent shows that it was believed that the Constitution conferred on the Executive no general power to avoid enforcing unconstitutional statutes. Rather, the Executive must work within the parameters of its grant to achieve its objectives.

Evidence of presidential defiance can be traced …

Minnesota Burning: R.A.V. V. City Of St. Paul And First Amendment Precedent, Jeffrey M. Laurence

UC Law Constitutional Quarterly

The Supreme Court has long held that it would strictly scrutinize restrictions which burdened protected speech based on the content of the speech. In the past, fighting words have been considered as having such slight social value that they did not merit First Amendment protection. In R.A.V., the Court entered uncharted First Amendment territory when it added an underinclusiveness standard to the content based test. Under the new standard, St. Paul, Minnesota's hate speech law was found invalid as viewpoint discrimination aimed at a subset of fighting words.

The test adopted by the majority is problematic. Contrary to the majority's …

Endorsement As Adoptive Action: A Suggested Definition Of, And An Argument For, Justice O'Connor's Establishment Clause Test, Joel S. Jacobs

UC Law Constitutional Quarterly

In recent years, the line between acceptable and unacceptable government activity in the religious sphere has been blurred. Three separate tests-the Lemon v. Kurtzman Test, the Endorsement Test, and the Coercion Test-all are currently vying for adoption by a majority of the Supreme Court. This Article examines the Court's Establishment Clause jurisprudence in an attempt to formulate a workable standard which best represents the value of the Clause.

The Endorsement Test, as currently applied, shows the most promise. However, the focus on "real people" and the use of the "objective observer" standard pose severe logistical problems. This article redefines endorsement …

The Gun-Free School Zones Act: The Shootout Over Legislative Findings, The Commerce Clause, And Federalism, David S. Gehrig

UC Law Constitutional Quarterly

The Fifth Circuit, in United States v. Lopez, struck down the Gun-Free School Zones Act as unconstitutional based on a new procedural requirement: prior to enacting a statute under the Commerce Clause, Congress must make findings which link the regulated activity to interstate commerce. The Supreme Court has granted certiorari to Lopez apparently in an effort to reconcile a split among the circuits regarding the constitutionality of the Act, and will issue its opinion in early 1995. While the constitutionality of the Act hinges on the necessity of legislative findings, it also raises Commerce Clause and Tenth Amendment issues.

This …

Racism In Our Courts: The Underfunding Of Public Defenders And Its Disproportionate Impact Upon Racial Minorities, Rebecca Marcus

UC Law Constitutional Quarterly

The severe underfunding of the nation's Public Defender System has jeopardized the criminal defendant's right to adequate assistance of counsel. The denial of this right has a disproportionate impact upon racial minorities because they are disproportionately represented by public defenders. The result is a violation of minorities' Sixth Amendment right to counsel and Fourteenth Amendment right to equal protection.

This Note examines the causes of under-funding and its effects on racial minorities. To remedy this discrimination, this Note offers several proposals, including a burden-shifting scheme, the use of the disparate impact standard to show discrimination (as opposed to the discriminatory …

Note, Give Me Liberty Or Give Me Silence: Taking A Stand On Fifth Amendment Implications For Court-Ordered Therapy Programs, Jessica Wilen Berg

Faculty Publications

No abstract provided.

Resolving Native American Land Claims And The Eleventh Amendment: Changing The Balance Of Power, Katharine F. Nelson

Villanova Law Review (1956 - )

No abstract provided.

Prior Restraint By The Backdoor: Conditional Rights, Steven Helle

Villanova Law Review (1956 - )

No abstract provided.

Constitutional Law - The Practical And Procedural Implications Of Jury Misconduct In The Third Circuit, Elise E. Walthall

Villanova Law Review (1956 - )

No abstract provided.

Right To Counsel - The Third Circuit Delivers Indigent Civil Litigants From Exceptional Circumstances, Kimberly A. Owens

Villanova Law Review (1956 - )

No abstract provided.

The Constitutionality Of State Home Schooling Statutes, Jack Macmullan

Villanova Law Review (1956 - )

No abstract provided.

Defining The Scope Of The Constitutional Right To Marry: More Than Tradition, Less Than Unlimited Autonomy, 70 Notre Dame L. Rev. 39 (1994), Donald L. Beschle

UIC Law Open Access Faculty Scholarship

No abstract provided.

Fundamental Rights In The "Gray" Area: The Right Of Privacy Under The Minnesota Constitution, Michael K. Steenson

Faculty Scholarship

This Article explores the constitutional aspects of Minnesota privacy law. Part II briefly explains federal privacy law to provide a baseline for consideration of privacy law in Minnesota. Part III examines the right of privacy as it has evolved in the Minnesota common law. Part IV evaluates the Minnesota Supreme Court's application of federal privacy standards and then examines the court's decisions that outline the right of privacy under the Minnesota Constitution. Part V concludes by raising questions concerning the potential application of the court's concept of privacy under the Minnesota Constitution as applied to two areas: same-sex marriages and …

The Right To Appointment Of Counsel For The Indigent Civil Contemnor Facing Incarceration For Failure To Pay Child Support - Mcbride V. Mcbride, Kurt F. Hausler

Campbell Law Review

This Note will provide a history of a civil contemnor's right to appointed counsel in North Carolina by reviewing the statutory and judicial history prior to McBride v. McBride, primarily through a study of the North Carolina Supreme Court holding in Jolly v. Wright. Next, this Note will look at the law outside of North Carolina which effected the holding in McBride. Next, this Note will examine the court's ruling in McBride, and discuss the altered judicial reasoning which led to the court's holding. Finally, this Note will address the ramifications of McBride, and conclude …