Constitutional Law Commons^™

The Term Limits Case, Bennett L. Gershman

Touro Law Review

No abstract provided.

Are We That Far Gone?: Due Process And Secret Deportation Proceedings, Michael A. Scaperlanda

Faculty Articles

No abstract provided.

The Conundrum Of Corporate Liability: Seeking A Consistent Approach To The Constitutional Rights Of Corporations In Criminal Prosecutions, Peter J. Henning

Law Faculty Research Publications

No abstract provided.

Reverse Racism: Affirmative Action, The Family, And The Dream That Is America, Robert S. Chang

UC Law Constitutional Quarterly

In this Essay, Professor Chang explores the interaction of race and family in the affirmative action debate. Although discrimination against women remains rampant in our society, and despite the fact that white women have been the primary beneficiaries of affirmative action, white women are being told that affirmative action hurts them because it hurts their husbands, brothers, and sons. Familial loyalty is being invoked to do the work of an explicit call for white racial solidarity. This strategy may be successful because as late as 1987, even with the increasing rate of interracial marriage, 99% of white Americans were married …

Of Kirpans, Schools, And The Free Exercise Clause: Cheema V. Thompson Cuts Through Rfra's Inadequacies, Dipanwita Deb

UC Law Constitutional Quarterly

In Cheema v. Thompson, a group of Sikh students suspended by the Livingston Union School District for carrying knives to school as dictated by their religion sued the district under the Religious Freedom Restoration Act (RFRA). The students are now back in school awaiting trial on the merits of their RFRA claim. This Note examines the Cheema case and uses it to argue that the language of RFRA as it now exists is inadequate to serve the broad religion-protective purposes for which the statute was enacted. The Note then proposes new amendments to RFRA, and tests the workability of these …

On The Rhetorical Criticism Of Judge Posner, James Arnt Aune

UC Law Constitutional Quarterly

No abstract provided.

Aggressive Panhandling Legislation And The Constitution: Evisceration Of Fundamental Rights--Or Valid Restrictions Upon Offensive Conduct, Darryl C. Delmonico

UC Law Constitutional Quarterly

The phrase "Brother, can you spare a dime?" was spawned during the Great Depression and originally evoked sympathy and compassion from all but the most hardened listeners. Fifty years later, while economic realities persist, public perceptions and legislative responses have changed. With the middle class slowly becoming extinct, a widening chasm is developing between the 'haves' and the 'have-nots.' The prevalence of panhandlers in communities across the United States is a testament to this phenomenon. With this surge in panhandling has come increased public dissatisfaction. Legislators have reacted to this dissatisfaction by enacting legislation designed to criminalize intimidating or threatening …

Rhetorical Criticism Of Legal Texts: Four Rhetoricians On Lochner V. New York, Hastings Constitutional Law Quarterly

UC Law Constitutional Quarterly

This Forum consists of four Essays which explore and analyze the rhetoric used in the Lochner opinions authored by Justices Peckham, Harlan, and Holmes. These Essays were inspired in part by Judge Richard Posner's Law and Literature: A Misunderstood Relation, and are offered to facilitate interdisciplinary dialogue between legal and rhetoric scholars on the ways legal rhetoric shapes our political and legal institutions.

The Violence Against Women Act After United States V. Lopez: Will Domestic Violence Jurisdiction Be Returned To The States, Stacey L. Mckinley

Cleveland State Law Review

Recent judiciary and media events have put a national focus on the overlooked problem of domestic violence. Federal lawmakers admirably responded to this attention in an aggressive manner when Congress passed the Violence Against Women Act (VAWA). Although little doubt exists that this country needs to reduce domestic violence, this sweeping federal legislation may not be the most effective means. The hasty response by federal lawmakers is unconstitutional in consideration of the Supreme Court's recent holding in Lopez. Although initial court challenges to the VAWA on Lopez grounds have resulted in split decisions, this Note argues that portions of the …

Term Limits On Original Intent--An Essay On Legal Debate And Historical Understanding, Polly J. Price

Faculty Articles

This Essay is divided into five Parts. Part I sets the stage for the historical debate by evaluating the text of the Qualifications Clauses as well as the limited evidence of what the Framers and the ratifiers thought about these provisions. Part II shows that many states, immediately after the federal Constitution was ratified, behaved as though the Qualifications Clauses did not prevent them from adding qualifications for congressional office-holding. Part III compares this early evidence of state behavior with a debate in Congress after the Civil War concerning the meaning of the Qualifications Clauses. Part IV returns to the …

Foreign Policy: Can The President Act Alone?Gaps And Conflicts In The Constitutional Grants Of Power, Dana C. Makielski

Richmond Public Interest Law Review

The Framers did not intend the Constitution to be an all-inclusive "bill of lading," for we cannot forget John Marshall's famous admonition "that it is a constitution we are expounding."' Nonetheless, there are many large gaps and conflicts in the allocation of power among the three branches, most in the area of foreign relations, that have caused serious problems for our nation's leaders and constitutional scholars over the past two centuries. How have our presidents reacted? Certainly the President can and has acted on his own in negotiating, enacting, and implementing foreign policy, despite the lack of any express executive …

Getting It Right: Uncertainty And Error In The New Disparate Treatment Paradigm, Henry L. Chambers, Jr.

Law Faculty Publications

This Article will explore whether the Court is getting it right or merely getting it done in the disparate treatment context. Part II of this Article will present the contradictory forces underlying getting it done and getting it right in the civil justice system in general, and in employment discrimination litigation in particular. Part III will explore the orthodoxy of disparate treatment law as it stands after Hicks. Part IV will examine the effect of abandoning the paradigm that proof of falsity is proof of intentional discrimination. Part V will offer suggestions on what the Court can do to make …

Separation Of Powers And The 1995-1996 Budget Impasse, Henry L. Chambers, Jr.

Law Faculty Publications

Separation of powers doctrine will have implications for any budget regime which contemplates explicit power sharing. This Article examines the possible separation of power pitfalls which threaten to undermine the emergence of a relatively healthy new budget regime and the creative mechanisms necessary to make that regime work. The Constitution does not provide many explicit instructions regarding the federal budgeting process. Thus, whether a particular budget arrangement is a good one requires a largely political analysis. Whether a particular budget arrangement is constitutional must be answered by the Supreme Court. On what basis the Court should make such a decision, …

The Dayton Peace Agreement: Constitutionalism And Ethnicity, Ronald Slye

Faculty Articles

It has been almost five years since the violent dissolution of Yugoslavia. An estimated 200,000 civilians have been killed, over two million people have been displaced from their homes, tens of thousands have been tortured and raped, and Europe has hosted yet another of the world's genocides. While the recently concluded Dayton Peace Agreement has resulted in a temporary cessation of the armed conflict, serious concerns have been raised regarding efforts to rebuild and repair the institutions of civil society. Little attention has been paid, however, to the constitutional structure of the newly created state of Bosnia and Herzegovina. While …

Constitutional Mass Torts: Sovereign Immunity And The Human Radiation Experiments (Note), Nestor M. Davidson

Faculty Scholarship

Part I of this Note explains why the present system does not allow individuals to recover damages against the federal government for violations of the Constitution. It first describes the doctrine of constitutional torts and its limitations. It then discusses sovereign immunity, and explains that Congress has retained sovereign immunity for constitutional torts. It concludes with a discussion of the Supreme Court's policy arguments for not creating a cause of action against the government for constitutional violations. Part II explores the Human Radiation Experiments as a case study in the remedial gaps created by the current scope of Bivens and …

Desegregration In Higher Education: The Limits Of A Judicial Remedy, Gil Kujovich

Buffalo Law Review

No abstract provided.

Searching For The Plain Meaning Of The Second Amendment, Kevin D. Szczepanski

Buffalo Law Review

No abstract provided.

Cabining The Constitutional History Of The New Deal In Time, G. Edward White

Michigan Law Review

A Review of William E, Leuchtenburg, The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt

Substantive Due Process And Free Exercise Of Religion: Meyer, Pierce And The Origins Of Wisconsin V. Yoder, Jay S. Bybee

Scholarly Works

In this paper the author examines the nature of parents' due process right to direct the education of their children and its relationship to the First Amendment. The article begins with the hardiest of the U.S. Supreme Court's early substantive due process decisions: Meyer v. Nebraska and Pierce v. Society of Sisters. Meyer struck down a Nebraska law forbidding the teaching of foreign language in public or private schools; Pierce struck down an Oregon law requiring attendance at public schools. Part I recounts that the laws in both cases were the result of complex forces, uniting groups as disparate …

Florida's Property Rights Act: A Political Quick Fix Results In A Mixed Bag Of Tricks, Sylvia R. Lazos

Scholarly Works

This Article discusses Florida’s 1995 Property Rights Act, which grants to private property owners an alternative cause of action, outside of takings law, when they are permanently denied reasonable use of their land by regulatory actions. The Act also grants alternative procedures for property owners, outside of the judicial and administrative process. Thus, the Act does not change Florida takings law nor does it alter the substance of Florida's sometimes controversial growth management laws.

This article reviews the political climate that made passage of the Act possible and places the property rights initiative in the historical context of populist politics. …

Originalism And Indeterminacy, Thomas B. Mcaffee

Scholarly Works

Perhaps the most universal objection to originalism is that it is impossible; that is, the materials relied upon by originalists simply do not yield determinant answers to any worthwhile questions. This indeterminacy objection lacks significant force for at least three reasons. First, the claim that the interpretive materials are always indeterminate vastly overstates the extent and importance of the uncertainties involved; consequently, originalism's critics understate the importance of the originalist canon as a tool for reducing the degree of indeterminacy in constitutional interpretation. Once it becomes clear that originalist methodology can provide some definitive answers, even if significant indeterminacy remains, …

Federalism And The Protection Of Rights: The Modern Ninth Amendment’S Spreading Confusion, Thomas B. Mcaffee

Scholarly Works

Blindness to a basic understanding of the framers' design of our federal structure is largely responsible for the confusion that surrounds our understanding of the Ninth Amendment. The Ninth Amendment reads: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” In Griswold v. Connecticut, Justices Black and Stewart explained in separate dissenting opinions that the Ninth Amendment's reference to the other rights “retained by the people” alluded to the collective and individual rights the people “retained” by virtue of granting limited, enumerated powers to the national government. …

A Critical Guide To The Ninth Amendment, Thomas B. Mcaffee

Scholarly Works

Since the Supreme Court's decision in Griswold v. Connecticut, thousands of law students each year have confronted a confusing debate over the meaning of the Ninth Amendment. Writing for the majority in Griswold, Justice Douglas included the Ninth Amendment among the sources for deriving the “penumbral” right of privacy. More central to this article, in a separate concurrence Justice Goldberg contended that the Amendment provided a basis for the discovery of fundamental human rights beyond those included in the text of the Constitution and the Bill of Rights. In response, the dissenting Justices, Stewart and Black, argued that …

The Fourth Revolution, Robert C. Power

Washington and Lee Law Review

No abstract provided.

Thermal Surveillance: Do Infrared Eyes In The Sky Violate The Fourth Amendment? , M. Annette Lanning

Washington and Lee Law Review

No abstract provided.

The Thrift Crisis And The Constitution, Stanley I. Langbein

Washington and Lee Law Review

No abstract provided.

The Relevance Of The Framers’ Intent, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Ever since the revival of interest in originalism that occurred in the 1980s, critics have 'charged that for a variety of reasons it is impractical, if not impossible, to determine the Framers' intentions. In addition, they argue that we today should not be bound by the intentions of a few men who lived and died over two-hundred years ago. In sum, adherence to original intent is rejected as being impractical, unjust, or both.

In this article, the author argues that we cannot assess either the practicality or the justice of discerning original intent without first asking why it is we …

The Sounds Of Silence: Charter Application When The Legislature Declines To Speak, Dianne Pothier

Dianne Pothier Collection

On first impression, the title of the Simon and Garfunkle hit classic hit "The Sounds of Silence" may seem like an oxymoron. But it does not take too much reflection to realize that silence can indeed be very expressive and therefore quite telling. While that can be true in any number of contexts, for the specific purpose of this article, I will examine only one: legislative silence. What is the legal significance of the legislature declining to speak on one particular aspect of a legal issue otherwise addressed in the legislation? More specifically, can the Charter be engaged to challenge …

Mandatory Screening Of Newborns For Hiv: An Idea Whose Time Has Not Yet Come, Nina Loewenstein

Cardozo Journal of Equal Rights & Social Justice

The article argues against mandatory HIV screening for newborns, asserting that the benefits of early detection do not justify the infringement on mothers' legal rights and privacy. Proponents overemphasize medical benefits and underestimate the impact on maternal rights and care roles.

While Ignorance May Not Be Bliss, It Is A Mother's Right: Constitutional Implications Of Testing Newborn Babies For Hiv, Julie D. Levinson

Cardozo Journal of Equal Rights & Social Justice

The article examines the constitutional implications of mandatory HIV testing for newborns, arguing that such policies infringe upon women's rights under the Fourteenth Amendment. It critiques two proposed bills for being overly intrusive and not narrowly tailored, advocating instead for voluntary testing and counseling to balance public health with individual rights.