Constitutional Law Commons^™

How To Apply The Religious Freedom Restoration Act To Federal Law Without Violating The Constitution, Gregory P. Magarian

Scholarship@WashULaw

Learned commentators have called the Religious Freedom Restoration Act of 1993 ("RFRA" or "the Act") "perhaps the most unconstitutional statute in the history of the nation" and "the most egregious violation of the separation of powers doctrine in American constitutional history." In the 1997 case of City of Boerne v. Flores, the Supreme Court struck down the Act in its applications to state and local governments, declaring that "RFRA contradicts vital principles necessary to maintain separation of powers and the federal balance." The Act's applications to federal law, however, survived Boerne, which means that plaintiffs with religious freedom claims against …

Damage Control? A Comment On Professor Neuman’S Reading Of Reno V. Aadc, David Cole

Georgetown Law Faculty Publications and Other Works

This comment responds to an article by Professor Gerald Neuman on the Supreme Court's recent decision in Reno v. American-Arab Anti-Discrimination Committee (AADC). The Court in AADC rejected a selective prosecution claim by immigrants targeted for deportation based on First Amendment-protected activities, finding that Congress had stripped the federal courts of jurisdiction over such claims, and that in any event the Constitution does not recognize a selective prosecution objection to a deportation proceeding. Professor Neuman argues that the decision should not be read as implying that aliens have less First Amendment protection than citizens, and that the decision can …

Should Lucas V. South Carolina Coastal Council Protect Where The Wild Things Are? Of Beavers, Bob-O-Links, And Other Things That Go Bump In The Night, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

Lucas v. South Carolina Coastal Council is one of several recent Supreme Court decisions in which the Court used the Just Compensation Clause as a "weapon of reaction" to strike down an offending land use restriction. In Lucas, the target of the Court's animus was a state law prohibiting a landowner from developing two beachfront lots. The South Carolina Supreme Court upheld the law as a legitimate exercise of the State's police power to protect the public from harm in the face of a takings challenge by the landowner. The U.S. Supreme Court rejected the South Carolina court's talismatic …

Escaping The Expression-Equality Conundrum: Toward Anti-Orthodoxy And Inclusion, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

In this article, Professor Hunter questions the naturalness and inevitability of the dichotomy in constitutional law between freedom of expression and the right to equality. She places the origin of this doctrinal divergence in the history of American social protest movements in the first half of the twentieth century, which began with ideologically-based claims and shifted to a primary emphasis on identity-based equality claims. During the interim period between World War I and World War I, the wave of seminal First Amendment cases was ebbing and the wave of equality claims was beginning to swell. Close examination of the constitutional …

Asking The Right Questions: How The Courts Honored The Separation Of Powers By Reconsidering Miranda, Neal Devins

Faculty Publications

No abstract provided.

Reanimator: Mark Tushnet And The Second Coming Of The Imperial Presidency, Neal Devins

Faculty Publications

No abstract provided.

Expressive Identity: Recuperating Dissent For Equality, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

Constitutional law has made a mess of the relationship between expression and equality. Much of the time, the two claims exist in sharp conflict, as in recent Supreme Court cases involving hate speech' and the effort by a gay and lesbian group to march in a St. Patrick's Day parade. In those cases, equality claims collided head-on with defenses based on a First Amendment right to express anti-equality values. In other instances, such as debates about whether viewpoint diversity can serve as a justification for affirmative action, or whether race-conscious redistricting can serve as a proxy for political interests under …

Impeachment As Congressional Constitutional Interpretation, Neal K. Katyal

Georgetown Law Faculty Publications and Other Works

Constitutionalists have assumed, too quickly in my view, that symmetry should exist between the interpretive styles of the courts and Congress. This assumption, which I shall call the myth of interpretive symmetry, slights the many reasons why an interpretive method may work well in one area and not work as well in another. Instead of mapping out all these possible divergences, I illustrate the point with three examples: the roles of history, precedent, and moral philosophy. I show how, in each instance, arguments can be made to suggest that divergent institutional roles should be taken into account in formulating a …

The Public And Private Lives Of Presidents, Neal K. Katyal

Georgetown Law Faculty Publications and Other Works

Focusing on a frequent theme in the executive privilege arguments advanced by the Clinton Administration, Neal Kumar Katyal explores the distinction drawn between the public and private lives of the President, particularly in the Paula Jones and Monica Lewinsky cases. He argues that the Administration's difficulties in asserting executive privilege claims following these cases demonstrate that the public/private distinction is not entirely valid He asserts that, unlike members of Congress who have time when they are not in session, the President is unique in that he is in office twenty-four hours a day. He argues that this special constitutional status …

Thinking About The Constitution At The Cusp, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

What do I mean in saying that we need to think about the Constitution "at the cusp?" I have in mind an image in which we have one way of thinking about the Constitution on one side of a line, and another way of thinking about the Constitution on the other. My sense is that we may have crossed such a line quite recently. I believe that we may be in a new constitutional order, different from the New Deal-Great Society constitutional order that existed from 1937 to sometime in the 1980s. If so, those of us who have been …

Writing Off Race, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

The constitutionality of affirmative action has now become one of the central topics in the politics of race. Ironically, the United States Constitution says absolutely nothing about affirmative action. The text never mentions the term, and the equal protection language in the Fourteenth Amendment simply begs the question of whether equality requires or precludes the use of affirmative action. The intent of the Framers is similarly unhelpful. We know that the drafters of the Fifth Amendment owned slaves, and the drafters of the Fourteenth Amendment envisioned a racially stratified society. But the Fourteenth Amendment was itself an affirmative action measure, …

Are There Nothing But Texts In This Class? Interpreting The Interpretive Turns In Legal Thought, Robin West

Georgetown Law Faculty Publications and Other Works

Allan Hutchinson remarks at the beginning of his interesting article that Gadamer's writings have had only a peripheral influence on legal scholarship -- only occasionally cited, and then begrudgingly so, and never given the serious attention they deserve or require. Nevertheless, Hutchinson acknowledges, Gadamerian influences can be noted -- particularly in the now widely shared understanding that adjudication is, fundamentally, an interpretive exercise. Even with this qualification, though, I think Hutchinson understates Gadamer's impact. Whatever may be true of Gadamer's influence in other disciplines, his influence in law has been unambiguously both broad and deep -- although it has come …

Indirect Constitutional Discourse: A Comment On Meese, Robert F. Nagel

Publications

No abstract provided.

Judges And Federalism: A Comment On "Justice Kennedy's Vision Of Federalism", Robert F. Nagel

Publications

No abstract provided.

Barriers To Entry: A Market Lock-In Model Of Discrimination, Daria Roithmayr

Publications

The Justice Department yesterday filed an antitrust suit against members of the majority race, alleging that the group has harmed the public, consumers, and rivals by excluding Black and Latino/a competitors from the law school admissions market.' The Department alleges that a monopoly by whites has restricted competition and stifled innovation in legal education and the broader profession.

The government's central claim focuses on historical misconduct, rather than any contemporary wrongdoing. The complaint alleges that whites at the turn of the century monopolized the benefits of law school admissions for nearly one hundred years, by keeping nonwhites out of law …

How Constitutional Law Casebooks Perpetuate The Myth Of Judicial Supremacy, Neal Devins

Faculty Publications

No abstract provided.

Spiritual Treatment Exemptions To Child Medical Neglect Laws: What We Outsiders Should Think, James G. Dwyer

Faculty Publications

No abstract provided.

Seduced By Science: How American Religion Has Lost Its Way, Jay Tidmarsh

Journal Articles

For a Whiteheadian such as me, Steven Goldberg's Seduced by Science: How American Religion Has Lost Its Way starts with some correct and some incorrect premises and ends, not surprisingly, with some apposite and some inapposite conclusions. The burden of Goldberg's book is to argue that American religion, rather than making the distinctive contribution to American political and social life that it can and should, has instead been derailed into addressing questions on the terms of and with the language or methods of modern science. His argument proceeds in three parts. First, he describes three circumstances in which religion has …

Book Review Of Getting Around Brown: Desegregation, Development, And The Columbus Public Schools, Davison M. Douglas

Popular Media

No abstract provided.

A Dialogic Defense Of Alden, Jay Tidmarsh

Journal Articles

The opening paragraphs of the essay:

I find myself in the odd position of arguing that Alden v. Maine' is right, or at least not wrong. Do not misunderstand-I do not like the result in Alden any more than the next guy. But to not like the result and to argue that Alden is wrong as a matter of constitutional principle are two different matters. I am willing to argue that Alden is consistent with, albeit not compelled by, constitutional principle.

Implicit in the last sentence is the assumption that, had Alden been decided in accordance with Justice Souter's rather …

Francis Bacon Takes On The Ghouls: The "First Principles" Of Religious Freedom, Richard W. Garnett

Journal Articles

John Witte, Jr.
Religion and the American Constitutional Experiment:
Essential Rights and Liberties
Westview Press 2000

From the Review

This is a great time for students of the First Amendment's Religion Clauses and of what Professor John Witte calls the American "experiment" with religious freedom. We've been blessed these past few years with an in-print seminar - an upper-division offering, team-taught by faculty heavyweights - on this experiment, its products and prospects, and the values that have shaped it. Our teachers and texts have included, to name just a few, Professor Steven Smith's Foreordained Failure: The Constitutional Quest for a …

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

Faculty Articles

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, …

Dissent, Free Speech, And The Continuing Search For The "Central Meaning" Of The First Amendment, Ronald J. Krotoszynski Jr.

Michigan Law Review

Since the Warren Court's expansive construction of the Free Speech Clause of the First Amendment, there has been no shortage of legal scholarship aimed at justifying the remarkably broad protections afforded the freedom of speech under landmark cases such as Brandenburg v. Ohio, New York Times Co. v. Sullivan, and Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. At the same time, in recent years, a growing chorus of free speech skeptics have made their voices heard.5 These legal scholars have questioned why a commitment to freedom of expression should displace other (constitutional) values such as equality, …

The Importance Of Being Biased, Anthony M. Dillof

Michigan Law Review

The war against bias crimes is far from finished. In contrast, the battle over bias-crime laws is largely over. Bias-crime laws, as commonly formulated, increase the penalties for crimes motivated by bias. The Supreme Court has held that such laws do not violate the First Amendment. Virtually every state has enacted some sort of biascrime law. Even the federal government, which may consider itself without power to enact a general bias-crime law, has made bias a sentence-aggravating factor for the range of federal criminal offenses. Bias-crime laws thus are an established feature of the legal landscape. Against this background, Frederick …

Life On Campus Really Ain't So Bad, Avern Cohn

Michigan Law Review

The Shadow University is a highly tendentious account of Alan Charles Kors and Harvey A. Silverglate's view of academic and student life in America's colleges and universities over the last twenty years. Kors and Silverglate see these colleges and universities turning from promoting personal and academic freedom to suppressing open expression and denying basic liberties to students and faculty alike. To make their point, they have scoured college and university campuses from coast to coast to find incidents involving student speech code violations, as well as student and faculty discipline and misbehavior proceedings. They also examine multicultural and diversity programs …

Pennsylvania's Reasonable Expectations Doctrine: The Third Circuit's Perspective, Thomas J. Rueter, Joshua H. Roberts

Villanova Law Review (1956 - )

No abstract provided.

Federalism's Old Deal: What's Right And Wrong With Conservative Judicial Activism, Peter M. Shane

Villanova Law Review (1956 - )

No abstract provided.

Alden V. Maine’ And The Jurisprudence Of Structure, Ernest A. Young

Faculty Scholarship

No abstract provided.

The Dangers Of Unguarded Discretion: The Unconstitutional Stops Of Buses By Roving Patrols, Norma Alicia Ortiz

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract Forthcoming

What Does The Constitution Say About The Vouchers?, John H. Garvey

Scholarly Articles

No abstract provided.