Constitutional Law Commons^™

Commerce Clause, Enforcement Clause, Or Neither? The Constitutionality Of The Violence Against Women Act In Brzonkala V. Morrison, Christine M. Devey

University of Richmond Law Review

On September 21, 1994, two men raped Christy Brzonkala in her dormitory room at Virginia Polytechnic Institute and State Univer- sity("VirginiaTech"). Unfortunately,this kind of event is not a rare occurrence in the United States. "According to the U.S. Department of Justice Bureau of Justice Statistics ("BJS"), women are the victims of more than 4.5 million violent crimes each year. This alarming figure includes approximately 500,000 rapes or other sexual assaults." In light of these statistics, and "after four years of hearings, Congress enacted [the Violence Against Women Act of 1994 ("VAWA" or "the Act")], a comprehensive federal statute designed to …

Students Under Siege? Constitutional Considerations For Public Schools Concerned With School Safety, Jennifer L. Barnes

University of Richmond Law Review

Imagine the following scenario: The principal at River City High School receives a telephone call from an anonymous informant, notifying her that he had observed a knife in "Jimmy's" backpack, and indicated that he might also have access to a gun. The principal recalls that Jimmy is the student who has dyed his hair blue and who wanders the halls wearing a black trench coat and a T-shirt that reads "School Sucks," in violation of the school district's dress code. She checks Jimmy's file and discovers that he has been absent on numerous occasions during the school year and has …

Due Process And Fundamental Rights, Martin A. Schwartz

Scholarly Works

No abstract provided.

The Religious Liberty Protection Act: The Validity Of Using Congress' Commerce And Spending Powers To Protect Religion, Jennifer Dorton

Cleveland State Law Review

Although the Religious Liberty Protection Act appears, on its face, to be simple, there are many constitutional issues which call into question the validity of the proposed bill. This note will focus on the constitutional problems of using Congress' commerce and spending powers to protect religion. It will examine the problem of attaching religious conditions to the States' receipt of federal funds, and the potential problem that may result from using the spending power to protect religious exercise. The note then turns to the commerce clause justification for the RLPA. It will point out the major flaw in using the …

Decide The Law, Clearly - A Reply To Judge Bettman, Ben Glassman

Cleveland State Law Review

The Honorable Marianna Brown Bettman’s dilemma is roughly this: if a clause of a state constitution is worded similarly to a clause in the federal Constitution, how can a state court develop constitutional law? But in important respects, Judge Bettman's question reflects a misunderstanding of the law. This misunderstanding prevents her from identifying what is really at stake in cases like the one she describes. Judge Bettman seems to have misread Michigan v. Long. The Long Court laid out a clear test for determining the Supreme Court's appellate jurisdiction over state cases where the grounds-federal or state-of the state court's …

The Value Of Dissent, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

This essay reviews Dissent, Injustice, and the Meanings of America by Steven H. Shiffrin (1999).

Theorizing about the freedom of speech has been a central enterprise of contemporary legal scholarship. The important contributions to the debate are simply far too numerous to categorize. One ambition of this theorizing is the production of a comprehensive theory of the freedom of expression, a set of consistent normative principles that would explain and justify First Amendment doctrine. Despite an outpouring of scholarly effort, the consensus is that free speech theory has failed to realize this imperial ambition. Rather than searching for the global …

Sovereign Immunity, Due Process, And The Alden Trilogy, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

In Alden v. Maine, the Court held that the principle of sovereign immunity protects states from being sued without their consent in their own courts by private parties seeking damages for the states' violation of federal law. The Court thus rejected the "forum allocation" interpretation of the Eleventh Amendment, under which the Amendment serves merely to channel suits against the states based on federal law into the state courts, which are required by the Supremacy Clause to entertain such suits. The Court held instead that the Eleventh Amendment protects the states from being subjected to private damage liability by …

The Constitution Of Civil Society, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

This Article . . .sketches how the free expression, freedom of religion, and substantive due process provisions of the U.S. Constitution have been interpreted to define and protect families, religious institutions, non-political associations, and political parties. I have organized the discussion by topics rather than by institutions. The next section examines the ways in which constitutional law defines civil society's institutions, and Section III examines the extent to which it allows government to regulate them. Section IV deals with the constitutional restrictions on government's power to give unconditional or conditional grants to civil society's institutions. The Conclusion returns to the …

Globalization And Federalism In A Post-Printz World, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

This Article uses the recent Supreme Court decision in Crosby v. National Foreign Trade Council as the vehicle for examining the way in which the U.S. constitutional law of federalism might be responding to globalization. Part II develops the argument that globalization as such has no strong implications for domestic constitutional law. The remainder of the Article examines the U.S. constitutional response to the aspect of globalization revealed in Crosby, and argues that the Court's decision in Crosby is in tension with its other federalism decisions. But, the Article argues, that tension arises not from the fact that Crosby arises …

Does The Constitution Permit Federal Prosecution For The Arson Of A Private Residence?, Richard W. Garnett

Journal Articles

From the Issue

The federal arson statute, 18 U.S.C. § 844(i), makes it a crime to "maliciously damage[I ... by means of fire or an explosive, any building ... used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce[.]" The question in Jones is whether this statute and Congress' enumerated powers permit the "federalization" of the arson of a private residence. See Joint Appendix ("J.A.") 45. More particularly, is a private residence "used" in an "activity affecting interstate commerce," within the meaning of the statute, when it, for example, receives natural gas from out-of- state …

Regulatory Takings And "Judicial Supremacy", J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

The thesis of this Article is that the Court of Federal Claims and the Court of Appeals for the Federal Circuit have become exposed to this classic critique of constitutional decision-making through the recent expansions of the regulatory takings doctrine. Though the chief agent for this expansion has been the Supreme Court, these lower courts have made their own prominent contributions to broadening regulatory takings, and they are far more vulnerable to political reprisals. Like the Due Process Clause in the gilded age, the Takings Clause today can easily be and has been seen as an avenue for inappropriate judicial …

Constructing Alternative Avenues Of Jurisdictional Protection: Bypassing Burnham's Roadblock Via § 1404(A), Phillip F. Cramer

Vanderbilt Law Review

A plaintiff from Maine sues an insurance company, incorporated in Maine and having its principal place of business in Maine, on a loss incurred in Maine under a contract negotiated, written, and executed in Maine. The plaintiff files the suit in Alabama to take advantage of its liability law, its statute of limitations, its juries, its rules of evidence, and its posture toward plaintiffs. The plaintiff serves a representative of the insurance company traveling in Alabama en route to an industry convention. For all the reasons the plaintiff seeks a forum in Alabama, the defendant wishes to avoid that forum. …

Section 1983 Litigation - Supreme Court Developments, Martin A. Schwartz

Touro Law Review

No abstract provided.

New York State Constitutional Decisions: 1999 Compilation (Toc)

Touro Law Review

No abstract provided.

Commerce Clause, Ivonne Polasky

Touro Law Review

No abstract provided.

Double Jeopardy, Robyn Mendelson

Touro Law Review

No abstract provided.

Justiciability, Brian Caulfield

Touro Law Review

No abstract provided.

Justiciability, Kimberly R. Mccrosson

Touro Law Review

No abstract provided.

Power Of Courts, Kimberly Lumpee

Touro Law Review

No abstract provided.

Speedy Trial, Stephanie Beige

Touro Law Review

No abstract provided.

Equal Protection Challenges To The Use Of Racial Classifications To Promote Integrated Public Elementary And Secondary Student Enrollments, Kevin D. Brown

Articles by Maurer Faculty

No abstract provided.

Presidential Non-Enforcement Of Constitutionally Objectionable Statutes, Dawn E. Johnsen

Articles by Maurer Faculty

This article, published in Law & Contemporary Problems, was presented at a Duke Law School conference, The Constitution Under Clinton: A Critical Assessment. It examines a recurring, unsettled issue of executive power: how the President best fulfills his constitutional responsibilities when confronted with the enforcement of a statute that he believes is unconstitutional. What should the President do if he believes enforcing a statutory provision would violate the Constitution? Should, for example, a President comply with a congressional command that he believes would violate the constitutional rights of individuals or compromise presidential power? The article examines the two prevailing approaches …

When Should Rights "Trump"? An Examination Of Speech And Property, Laura S. Underkuffler

Cornell Law Faculty Publications

No abstract provided.

What Does The Second Amendment Mean Today?, Michael C. Dorf

Cornell Law Faculty Publications

A growing body of scholarship argues that the Second Amendment protects a right of individuals to possess firearms, regardless of whether those individuals are organized in state militias. Proponents of the individual right view do not merely disagree with those who champion the competing view that the Second Amendment poses few if any obstacles to most forms of gun control legislation by the state or federal governments. They appear to believe that the Second Amendment has been subject to uniquely shabby treatment by the courts and, until recently, academic commentators.

This Article argues that the Second Amendment has not been …

On The Evolution Of The Canonical Dissent, Anita S. Krishnakumar

Faculty Publications

Legal theorists increasingly have come to recognize and study the existence of a constitutional canon composed of highly authoritative legal texts that command special reverence in the law. Among these highly authoritative texts are a series of dissenting opinions—e.g., Justice Holmes's in Lochner v. New York, and Justice Harlan's in Plessy v. Ferguson—that ironically are more famous than the majority opinions in most other cases. This Article examines the evolution of the dissenting canon, seeking to explain both the methods by which various dissenting opinions became canonized and the motivating factors behind these canonizations.

Specifically, the Article argues that the …

Exercising The Right To Public Accommodations: The Debate Over Single-Sex Health Clubs, Miriam A. Cherry

Faculty Publications

(Excerpt)

Recently, the debate over single-sex health clubs gained national attention when a patent attorney, James Foster, sued for admission to Healthworks, a Massachusetts all-women's health club. One day in 1996, Foster entered the club, which was located close to his Boston condominium, and asked for a tour and an application for membership. The club employees, however, refused him a tour, informing him that Healthworks did not admit men. Shortly thereafter, Foster filed a discrimination claim with the Massachusetts Commission Against Discrimination contending that Healthworks had violated the Massachusetts public accommodations statute. He won at the administrative hearing, and Healthworks …

Ninth Amendment Adjudication: An Alternative To Substantive Due Process Analysis Of Personal Autonomy Rights, Mark C. Niles

Faculty Publications

Notwithstanding decades of significant legal scholarship focusing on the Ninth Amendment to the U.S. Constitution, a large portion of the practicing legal community, and even a substantial percentage of legal scholars, are unfamiliar with the provision. The primary reason for this phenomenon is the striking absence of an identifiable body of Ninth Amendment adjudication. In this Article, Mark Niles focuses on this phenomenon and endeavors to develop an interpretative theory of the amendment upon which an adjudicative role can be founded.

In Part I of this Article, Niles outlines the traditional judicial treatment of the Ninth Amendment, or more precisely, …

Special Division Agonistes, John Q. Barrett

Faculty Publications

When the independent counsel law sank, the casualties included a special "division" of the United States Court of Appeals for the District of Columbia Circuit. This division was the special court that Congress had created "for the purpose of appointing independent counsels." The now-expired 1994 independent counsel statute had, like its three predecessors, directed the Chief Justice of the United States to appoint three judges from the Supreme Court and/or the federal Courts of Appeals to serve on the special court for two-year terms. This independent counsel court, which was located for administrative purposes in the United States Court of …

The Canon(S) Of Constitutional Law: An Introduction, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

Any discipline has a canon, a set of themes that organize the way in which people think about the discipline. Or, perhaps, any discipline has a number of competing canons. Is there a canon of constitutional law? A group of casebook authors met in December 1999 to discuss the choices they had made - what they had decided to include, what to exclude, what they regretted excluding (or including), what principles they used in developing their casebooks. Most of the authors were affiliated with law schools, but some had developed coursebooks for use in undergraduate political science and constitutional history …

A Report Card On The Impeachment: Judging The Institutions That Judged President Clinton, Susan Low Bloch

Georgetown Law Faculty Publications and Other Works

Now that we have lived through one of the most unusual events in American history-the impeachment and trial of the President of the United States-it is appropriate, indeed essential, that we assess how the process worked and learn what we can from it. Specifically, I want to address two questions: First, how well did the impeachment process work? In good academic fashion, I will grade each of the governmental institutions involved – giving them, if you will, a report card. Second, what did we learn from the experience to guide us if, in the future, we face the impeachment of …