Constitutional Law Commons^™

Ohio Constitutional Interpretation, Richard B. Saphire

Cleveland State Law Review

Saphire provides a detailed review and critique of the Ohio Supreme Court's interpretive methodology since 1984. This examination, superb in itself, is rendered all the more valuable by Saphire's inclusion of two other discussions - one placing the Ohio experience in a larger historical context, the other probing the legitimacy and limits of New Judicial Federalism. Saphire concludes that the Ohio Supreme Court's commitment to state constitutional independence has been marked by inconsistency and ambivalence. This trend will continue, he suggests, until the court develops and articulates a theory of Ohio constitutional interpretation - something that it has so far …

Punishment And The War On Terrorism, Carl W. Tobias

Law Faculty Publications

Certain features of the war on terrorism impose novel and controversial punishment schemes. For example, President George W. Bush has unilaterally invoked executive authority to detain thousands suspected of terrorism over protracted times and to create military tribunals. The government has imprisoned two American citizens, denying them access to counsel for more than a year, and it has incarcerated 650 individuals without process at Guantanamo Bay. Bush administration officials recently announced that they would try some Guantanamo detainees in military commissions; however, these bodies will accord fewer protections than the civilian system or even courts-martial under the Uniform Code of …

Fire, Metaphor, And Constitutional Myth-Making, Robert Tsai

Scholarly Articles in Law Reviews & Journals

From the standpoint of traditional legal thought, metaphor is at best a dash of poetry adorning lawyerly analysis, and at worst an unjustifiable distraction from what is actually at stake in a legal contest. By contrast, in the eyes of those who view law as a close relative of ordinary language, metaphor is a basic building block of human understanding. This article accepts that metaphor helps us to comprehend a court's decision. At the same time, it argues that metaphor plays a special role in the realm of constitutional discourse. Metaphor in constitutional law not only reinforces doctrinal categories, but …

Without Charge: Assessing The Due Process Rights Of Unindicted Co-Conspirators, Ira Robbins

Scholarly Articles in Law Reviews & Journals

The grand jury practice of naming individuals as unindicted co-conspirators routinely results in injury to reputations,lost employment opportunities, and a practical inability to run for public office. Yet, because these individuals are not parties to a criminal trial, they have neither the right to present evidence nor the opportunity to clear their names. Thus, Professor Robbins argues that the practice violates the Fifth Amendment guarantee that “[n]o person shall . . . be deprived of life, liberty, or property, without due process of law[.]” While prosecutors may offer many justifications to support the practice of naming unindicted co-conspirators, these reasons …

Resorting To External Norms And Principles In Constitutional Decision-Making, Alvin L. Goldman

Law Faculty Scholarly Articles

Given the very significant role of constitutional law in the American political system and the fact that Supreme Court Justices are appointed through a political process, it is understandable that the appropriate judicial approach to resolving constitutional issues often is the subject of political commentary. Unfortunately, discourse by politicians concerning this issue seldom rises to the deserved level of wisdom. One of President George W. Bush's public mantras is illustrative of political commentary respecting federal judicial appointments: "I'm going to put strict constructionists on the bench." On its face, and as understood by politically naive audiences, the statement appears to …

Furthering American Freedom: Civil Rights & The Thirteenth Amendment, Alexander Tsesis

Faculty Publications & Other Works

Abstract: This Article discusses why the Thirteenth Amendment's reach extends beyond the institution of slavery and has important implications for civil liberties. The Amendment-in providing a mechanism to protect fundamental rights articulated in the Declaration of Independence and Preamble to the Constitution-not only ended slavery, but also created a substantive assurance of freedom. This Article reviews Thirteenth Amendment jurisprudence and shows that, despite substantial narrowing after its adoption, the Amendment is a source of sweeping constitutional power for enacting federal civil rights legislation. The Article also distinguishes congressional power under the Thirteenth Amendment from that under the Fourteenth Amendment and …

A Double Due Process Denial: The Crime Of Providing Material Support Or Resources To Designated Foreign Terrorist Organizations, Randolph N. Jonakait

NYLS Law Review

No abstract provided.

The Tri-Ethnic Dilemma: Race, Equality, And The Fourteenth Amendment In The American West, Tom I. Romero Ii

Scholarly Works

No abstract provided.

The Most Rational Branch: Guinn V. Legislature And The Judiciary's Role As Helpful Arbiter Of Conflict, Jeffrey W. Stempel

Scholarly Works

When the Nevada Supreme Court decided Guinn v. Legislature, one would have thought from reading the popular press accounts that the court had forcibly displaced the State legislature by means of a violent coup d'etat. Newspaper accounts of the decision referred to it as a usurpation of power in violation of clear constitutional language, belittling the court in language sometimes more appropriate to the baseball bleachers than to serious editorial commentary. Following suit, politicized elements of the citizenry began a recall effort (seemingly unsuccessful as of this writing) directed at the court as well as joining the chorus of criticisms. …

Double Jeopardy And Nonmember Indians In Indian Country, Terrill Pollman

Scholarly Works

The ambivalence of the federal government to the sovereignty of native tribes is ordinarily a quiet fact of life in this country. Now, the federal circuits have disturbed that quiet by rendering opposing rulings on the question whether the Double Jeopardy Clause bars successive tribal/federal prosecution of nonmember Indians in Indian Country. The Ninth Circuit has held the Double Jeopardy Clause does not present a bar to successive tribal/federal prosecutions. In contrast, the Eighth Circuit has held that the Double Jeopardy Clause prohibits subsequent prosecution because the source of the tribe's jurisdiction, if it has jurisdictional power, is the same …

Courts Over Constitutions Revisited: Unwritten Constitutionalism In The States, Thomas B. Mcaffee, Nathan N. Frost, Rachel Beth Klein-Levine

Scholarly Works

A good deal of modern debate in constitutional law has concerned the appropriate methods for construing constitutional rights. But the focus on “individual rights” has sometimes prompted us to pay too little attention to the “right” deemed most fundamental by those who brought us the state and federal constitutions: the right of the people collectively to make determinations about how they should be governed. The author demonstrates that the key to understanding the development of the power of judicial review, both by the United States Supreme Court and by the highest courts of the states, is to perceive courts as …

What Is The Sound Of A Corporation Speaking? How The Cognitive Theory Of Metaphor Can Help Lawyers Shape The Law, Linda L. Berger

Scholarly Works

This article argues that better understanding of metaphor's cognitive role can help lawyers shape judicial decision-making. As a way of exploring metaphor's contribution to shaping the law, the article focuses on how a particular lawsuit was influenced by metaphor, in particular, by the primary metaphor that a corporation is a person within the more complex metaphorical system suggested by the marketplace of ideas model for First Amendment protection. After describing the cognitive theory of metaphor and examining the metaphors underlying First Amendment protection for corporate speech, the article analyzes the use of metaphor in the briefs filed in the U.S. …

Governance And Anarchy In The S.2(B) Jurisprudence: A Comment On Vancouver Sun And Harper V. Canada, Jamie Cameron

Articles & Book Chapters

The article identifies and explains a double standard in the Supreme Court of Canada jurisprudence. The contrast is between the open court jurisprudence, which is a model of good constitutional governance – or principled decision making – and the Court’s s.2(b) methodology, which is “anarchistic” or capricious and undisciplined, in the sense of this article. Two landmark cases decided in 2004 illustrate the double standard: the first is Re Vancouver Sun, [2004] 2 S.C.R. 332, which dealt with the open court principle under Parliament’s anti-terrorism provision for investigative hearings, it represents a high water mark for open court and s.2(b) …

The Section 5 Power After Tennessee V. Lane, William D. Araiza

Faculty Scholarship

No abstract provided.

Tribal Courts And Federal Courts: A Very Preliminary Set Of Notes For Federal Courts Teachers, Frank Pommersheim

Faculty Publications

No abstract provided.

Copy This Essay: How Fair Use Doctrine Harms Free Speech And How Copying Serves It, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

Defenders of transformative uses have invoked the First Amendment to bolster claims that such uses should not be subject to the copyright owner’s permission. But this focus on transformation is critically incomplete, leaving unchallenged much of copyright’s scope, despite the large number of nontransformative copying activities that are also instances of free speech. The current debate leaves the way open for expansions of copyright that, while not targeted at dissenting viewpoints, nonetheless may have a profoundly negative effect on freedom of speech. In other words, transformation has limited our thinking about the free speech interests implicated by copying. This essay …

Sunsetting Judicial Opinions, Neal K. Katyal

Georgetown Law Faculty Publications and Other Works

Contemporary constitutional law, in its quest for judicial restraint, has primarily focused on "the how" of judging - what interpretive methods will constrain the decisionmaker? This Article, by contrast, focuses on the "when"- if there are reasons to think that today's judicial decisions might later prove to be problematic, then are there methods that alter the timing of those decisions' impact to produce better outcomes? This Article outlines one new method for judicial decisionmaking in the post-9/11 world. Informed by pervasive legislative practices, I contend that the Supreme Court should prospectively declare that some of its national security opinions will …

The Secret Life Of The Political Question Doctrine, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

"Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court."

The irony, of course, is that Marbury v. Madison, itself, "made" a political question, and the answer the Court gave was deeply political as well. As everyone reading this essay knows, the case arose out of a bitter political controversy, and the opinion for the Court was a carefully crafted political document - "a masterwork of indirection," according to Robert McCloskey's well-known characterization, "a brilliant example of Chief Justice Marshall's capacity to sidestep danger while seeming …

The Threat To Constitutional Academic Freedom, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

Since the late 1980s, the academic authority of colleges and universities has been subjected to continuing blasts of criticism. Culture warriors portray decayed institutions where sixties radicals have seized control and terrorize students and the few remaining honest faculty with demands for political conformity or bewilder them with incomprehensible theorizing. Some valid criticisms by these writers can be gleaned among their towering hyperbole and tendentious accusations. But the overall effect has been to paint for the broader public an alarming, misleading picture of intolerance and cant. The prevalence of this picture, however false it may be, imperils the constitutional autonomy …

Was The Right To Keep And Bear Arms Conditioned On Service In An Organized Militia?, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

This essay is a review of The Militia and the Right to Arms, or, How the Second Amendment Fell Silent by H. Richard Uviller & William G. Merkel (2002).

Those who deny that the original meaning of the Second Amendment protected an individual right to keep and bear arms on a par with the rights of freedom of speech, press and assembly no longer claim that the amendment refers only to a collective right of states to maintain their militias. Instead, they now claim that the right, although belonging to individuals, was conditioned on service in an organized militia. With …

War Everywhere: Rights, National Security Law, And The Law Of Armed Conflict In The Age Of Terror, Rosa Ehrenreich Brooks

Georgetown Law Faculty Publications and Other Works

Both international and domestic law take as a basic premise the notion that it is possible, important, and usually fairly straightforward to distinguish between war and peace, emergencies and normality, the foreign and the domestic, the external and the internal. From an international law perspective, the law of armed conflict is triggered only when a armed conflict actually exists; the rest of the time, other bodies of law are applicable. Domestically, U.S. courts have developed a constitutional and statutory jurisprudence that distinguishes between national security issues and domestic questions, with the courts subjecting government actions to far less scrutiny when …

Marbury's Legacy Of Judicial Review After Two Centuries, Harry F. Tepker

Faculty Articles

No abstract provided.

The Useful, Dangerous Fiction Of Grand Jury Independence, Niki Kuckes

Law Faculty Scholarship

No abstract provided.

Choosing Liberty Over Equality And Sacrificing Both: Equal Protection And Due Process In Lawrence V. Texas, Andrew J. Seligsohn

Cardozo Journal of Equal Rights & Social Justice

The article critiques the Supreme Court's decision in Lawrence v. Texas, arguing that the Court's reliance on substantive due process under the Due Process Clause, rather than the Equal Protection Clause, undermines the broader equality concerns faced by the LGBTQ+ community. By prioritizing liberty over equality, the Court missed an opportunity to establish a more robust legal foundation for future LGBTQ+ rights, leaving the decision vulnerable to challenge and failing to address the systemic discrimination against gays and lesbians.

Loose Not The Floodgates, Benjamin J. Cooper

Cardozo Journal of Equal Rights & Social Justice

The article examines the implications of the Supreme Court's decision in Lawrence v. Texas, which struck down sodomy laws, arguing that while the ruling was necessary, it raises concerns about the broader regulation of sexual conduct outside marriage. The author contends that such laws, despite rare enforcement, serve societal functions, including protecting marriage and providing moral boundaries that deter harmful behavior, particularly among young people.

The Shag-A-Delic Supreme Court: "Anal Sex," "Mystery," "Destiny," And The "Transcendent" In Lawrence V. Texas, Richard D. Mohr

Cardozo Journal of Equal Rights & Social Justice

The article critiques Justice Anthony Kennedy's majority opinion in Lawrence v. Texas for its lack of clarity and robust constitutional framework. While the decision overturned Texas's sodomy law, the author argues that Kennedy's reasoning conflated liberty and equality rights, relied on vague language, and failed to establish a clear legal standard, undermining its potential to provide strong protection for LGBTQ+ rights.

Challenging Dissent: The Ontology And Logic Of Lawrence V. Texas, Jami Weinstein, Tobyn Demarco

Cardozo Journal of Equal Rights & Social Justice

The article examines the Supreme Court's decision in Lawrence v. Texas, which invalidated a Texas antisodomy statute criminalizing homosexual conduct. The Court held that the statute failed rational basis review and rejected the promotion of majoritarian sexual morality as a legitimate state interest. The decision reflects a broader recognition of the fundamental right to make autonomous, private, consensual, adult sexual choices. The analysis critiques Justice Scalia's dissent, arguing that his fears about the end of morals legislation are unfounded and that laws based solely on moral disapproval lack a rational basis.

Constitutional Courage, Harry W. Arthurs

Articles & Book Chapters

In this lecture, Professor Arthurs argues that we are currently in need of "constitutional courage"-the courage to say "no" to ambitious projects of constitutional reform and constitutional litigation as a way to solve our pressing social and political problems. Professor Arthurs first lays out why our current obsession with the constitution is problematic. He insists that we do not even know what the supposed "supreme law of Canada" actually is, what it says, or even what it does. Moreover, instead of transforming society, the current "cult of constitutionalism" has only served to transform legal practice and scholarship. ei then surmises …

Court, Congress And Equal Protection: What Brown Teaches Us About The Section 5 Power, William D. Araiza

Faculty Scholarship

No abstract provided.

Two Wrongs Make A Right: Hybrid Claims Of Discrimination, Ming Hsu Chen

Publications

This Note reinterprets and recontextualizes the pronouncement in Employment Division v. Smith (Smith II) that exemptions from generally applicable laws will not be granted unless claims of free exercise are accompanied by the assertion of another constitutional right. It argues that when Arab American Muslims, and others who are of minority race and religion, bring claims for exemption from generally applicable laws on the basis of free exercise and equal protection principles, they ought to be able to invoke Smith II's hybridity exception, thus meriting heightened judicial scrutiny and increased solicitude from courts.