Constitutional Law Commons^™

State And Federal Constitutional Law Developments, Rosalie Levinson

Law Faculty Publications

This Article explored state and federal constitutional law developments over the past year. Parts I-III examine both U.S. Supreme Court cases and significant Indiana state and lower federal court cases addressing federal constitutional issues. Part IV will focus on state civil constitutional law cases.

Same-Sex Marriages And Civil Unions: On Meaning, Free Exercise, And Constitutional Guarantees, Mark Strasser

Loyola University Chicago Law Journal

No abstract provided.

Miranda's Final Frontier - The International Arena: A Critical Analysis Of U.S. V. Bin Laden, And A Proposal For A New Miranda Exception Abroad, Mark A. Godsey

Faculty Articles and Other Publications

In recent years, the FBI and other federal law agencies have greatly expanded their presence abroad, investigating everything from narcotics trade and internet fraud schemes to terrorism. This trend will undoubtedly continue in the aftermath of September 11th. A constitutional question that will be of increasing importance in this context is whether, or to what extent, U.S. law enforcement officials (hereinafter "FBI") must provide Miranda warnings to non-U.S. citizens interrogated abroad who will later be tried in the United States.

The article first addresses whether future modifications to the Miranda doctrine are permissible after Dickerson. The article concludes that despite …

Youngstown Revisited, A. Christopher Bryant, Carl Tobias

Faculty Articles and Other Publications

In 1952, President Harry S. Truman promulgated an Executive Order that authorized federal government seizure of the nation's steel mills to support United States participation in the Korean conflict, but the Supreme Court held that Truman lacked any power to seize the property in Youngstown Sheet & Tube Co. v. Sawyer. In 2001, President George W. Bush promulgated an Executive Order that authorized trial by military commissions of non-U.S. citizens whom the American government suspects of terrorism in domestic cases and concomitantly denied these persons access to the federal courts. This article undertakes an analysis of the Bush Executive …

Membership Denied: Subordination And Subjugation Under United States Expansionism, Ediberto Román, Theron Simmons

Faculty Publications

As for the proposal this Article seeks to promote, the length and complexity of this undertaking hopefully demonstrates the difficulty in arriving at an easily identified solution. Century long colonial struggles by several distinct countries and millions of their inhabitants are not easily resolved. Nevertheless, there are certain procedural steps that can be undertaken which may promote the realization of self-determination. The United States should be true to its rhetoric and promote democratic efforts in these lands to achieve autonomy. It is not enough to promote self-determination for other powers' colonies. The subordination of citizens and nationals is not only …

Civil Rights And Civil Liberties In A Crisis: A Few Pages Of History, Thomas E. Baker

Faculty Publications

Tribute to Judge Procter Hug of the United States Court of Appeals for the 9th Circuit, based on a talk adapted from Thomas E. Baker's At War With the Constitution: A History Lesson from the Chief Justice, 14 BYU J. Pub.L. 69 (1999).

It is but a truism that the powers of the government are greatest when the Nation is at war. All of our wartime Commanders-in-Chief have conducted themselves based on this belief. For its part, the Supreme Court has acquiesced in draconian measures undertaken by the Executive that would not be permitted during peacetime. The lasting problem …

A Symposium Précis, Thomas E. Baker

Faculty Publications

This article is an introduction and overview of the Drake University Law School symposium Judicious Choices: Nominating and Confirming Supreme Court Justices held in March of 2002. It identifies important constitutional law issues in nominating and confirming the President's appointments to Supreme Court Justices in the United States.

Compelled Expression And The Public Forum Doctrine, Howard M. Wasserman

Faculty Publications

This Article analyzes the theory underlying the Fist Amendment protection against being compelled by government to utter, present, or fund unwanted expression. The author creates a three-part model for determining when the fire speech rights of an objecting payer have been triggered. Under that model, First Amendment rights are implicated when there has been an actual government compulsion requiring an individual to give money to, or for the express benefit of, a specific private speaker for some use that, in itself, should be understood as expressive. This model strikes a necessary balance between the important theoretical underpinnings of the protection …

The Constitutional Implications Of A Cloning Society, Elizabeth Price Foley

Faculty Publications

This paper examines the social and legal implications of human cloning.

Enda Before It Starts: Section 5 Of The Fourteenth Amendment And The Availability Of Damages Awards To Gay State Employees Under The Proposed Employment Non-Discrimination Act, William D. Araiza

Faculty Scholarship

No abstract provided.

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 …

At War With Civil Rights And Civil Liberties, Thomas E. Baker

Faculty Publications

This essay looks at the Supreme Court and acquiescence to measures by the Executive Branch that limit or suspend civil liberties during times of war or threats to national security.

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 …

Begging The Court's Pardon: Justice Denied For The Poorest Of The Poor, Daniel M. Cohen

St. Thomas Law Review

Astonishing as it may seem, if Benjamin Franklin were alive today, and he sought to collect alms for the poor on Fort Lauderdale Beach, he would, by force of law, find himself summarily expelled from the area. If Mr. Franklin then returned, seeking thus to heed the call of his conscience to help the downtrodden and oppressed, the great statesman and Founding Father of the United States would find himself placed under arrest. For the City of Fort Lauderdale, with the imprimatur of the Eleventh Circuit Court of Appeal, has deemed it Right and Good that soliciting a passerby for …

A Defendant's Right To Exculpatory Evidence: Does The Constitutional Duty To Disclose Exculpatory Evidence Extend To New Evidence Discovered Post-Conviction, Todd E. Jaworksy

St. Thomas Law Review

This note will first address Brady and the modifications made to the disclosure law by subsequent cases. Second, this note will explain the ethical obligations concerning a prosecutor's duty to disclose exculpatory evidence post-conviction as set out by the Model Rules of Professional Conduct. Third, this note will critically examine various case law in which the constitutional duty to disclose is seemingly extended to encompass post-conviction, newly discovered exculpatory evidence in the hands of the prosecutor. Finally, this note will conclude with an analysis and opinion of the disclosure law, discussing why the constitutional duty should be extended post-conviction.

The Paradox Of Judicial Bypass Proceedings , Jamin B. Raskin

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Casey Reflections, Elizabeth A. Cavendish

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Nguyen V. Ins 533 U.S. 53 (2001), Brooke B. Grandle

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Effectuating Censorship: Civic Republicanism And The Secondary Effects Doctrine, 35 J. Marshall L. Rev. 189 (2002), Brandon K. Lemley

UIC Law Review

No abstract provided.

Freedom Of The Private-University Student Press: A Constitutional Proposal, 36 J. Marshall L. Rev. 139 (2002), Brian J. Steffen, John E. Ferguson

UIC Law Review

No abstract provided.

Reflecting On The Virtual Child Porn Decision, 36 J. Marshall L. Rev. 211 (2002), David L. Hudson

UIC Law Review

No abstract provided.

When Can The Government’S Misrepresentations Give Rise To A Constitutional Tort?, Antonio F. Perez

Scholarly Articles

Can allegations that senior State Department and National Security Council officials failed to inform a U.S. citizen that her foreign citizen husband was in foreign custody suffice to allege a denial of access to the courts in violation of the Fifth Amendment so as to give rise to a constitutional tort even absent any allegation that the plaintiff tried to file a lawsuit or was actually hindered in doing so?

If so, was that right clearly established as of the time of the government officials' conduct so as to defeat a defense of qualified immunity?

When Do Claims Challenging A Statute’S Effect On Pre-Existing Contracts Accrue?, Lucia A. Silecchia

Scholarly Articles

No abstract provided.

Brandenburg And The United States War On Incitement Abroad: Defending A Double Standard, Lyrissa Lidsky

Faculty Publications

While it is perfectly legitimate for the United States to attempt to persuade foreign citizens and media not to engage in advocacy of violent acts, the administration's rhetoric suggests that the United States expects foreign governments to take action against speech that would be protected by the First Amendment in the United States. What explains this apparent hypocrisy? Is this simply another example of the United States touting democracy at home while supporting despotism abroad? Or is the Brandenburg incitement standard so socially and culturally contingent that it is not appropriate for export, at least to the Arab Middle East? …

Seeing Red: Gibbs V. Babbitt, Edward A. Fitzgerald

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Federal Regulation Of Isolated Wetlands: To Be Or Not To Be, Talene Nicole Mergerian

Villanova Environmental Law Journal (1991 - )

No abstract provided.