Constitutional Law Commons^™

Theocratic Constitutionalism: An Introduction To A New Global Legal Ordering, Larry Catá Backer

Indiana Journal of Global Legal Studies

The twentieth century has seen a fundamental shift in the ways in which constitutions are understood. By the middle of the twentieth century, a new sort of constitutionalism emerged, rejecting the idea of the legitimacy of every form of political selfconstitution. The central assumptions of this new constitutionalism were grounded in the belief that not all constitutions were legitimate, and that legitimate constitutions shared a number of universal common characteristics. These common characteristics were both procedural (against arbitrary use of state power) and substantive (limiting the sorts of policy choices states could make in constituting its government and exercising governance …

Book Review, Mark C. Modak-Truran

Journal Articles

In volume 1, James Hitchcock provides a comprehensive historical treatment of all the U.S. Supreme Court cases involving the religion clauses. Volume 2 focuses on the broader “context of the continuing dialogue about the role of religion in public life” and its relationship to the Court’s interpretation of the religion clauses.

Horizontal And Vertical Equity In Taxation As Constitutional Principles: Germany And The United States Contrasted, Henry Ordower

All Faculty Scholarship

Explores U. S. Supreme Court and German Constitutional Court decisions that apply their respective constitutions to taxation controversies, especially controversies in matters involving equal protection or due process protection.

The Equality Paradise: Paradoxes Of The Law's Power To Advance Equality, Marcia L. Mccormick

All Faculty Scholarship

This paper, written for Texas Wesleyan Law School's Gloucester Conference, ¿Too Pure an Air: Law and the Quest for Freedom, Justice, and Equality,¿ is a brief exploration of a broader project. Every civil rights movement must struggle with how to allocate scarce resources to accomplish the broadest change possible. This paper compares the legal and political strategies of the Black rights movement and the women's rights movement in the United States, comparing both the strategy choices and the results. These two movement followed essentially the same strategies. Where they have attained success and where each has failed demonstrates the limits …

Preclearance, Discrimination, And The Department Of Justice: The Case Of South Carolina, Luis Fuentes-Rohwer, Guy-Uriel E. Charles

Articles by Maurer Faculty

No abstract provided.

Book Review. The Supreme Court And Religion In American Life, Daniel O. Conkle

Articles by Maurer Faculty

No abstract provided.

Toward A Limited Right Of Access To Jury Deliberations, Torrence Lewis

Federal Communications Law Journal

Jury deliberations receive extensive protection from public examination. These protections make jury deliberations much less accessible to the public than most other governmental deliberations. This Comment examines the constitutional, common law, and statutory protections for jury deliberations and the dangers that these protections seek to prevent. The Author argues that a limited post-verdict right of access to jury deliberations could restore public faith in the jury and could eventually improve the quality of jury deliberations. The Author suggests a possible framework that would provide the public with a limited right of access and still address the primary concerns that led …

Religion, Speech, And The Minnesota Constitution: State-Based Protections Amid First Amendment Instabilities, Steven P. Aggergaard

William Mitchell Law Review

No abstract provided.

An Essay On Freedom Of Speech: The United States Versus The Rest Of The World, Robert Allen Sedler

Law Faculty Research Publications

No abstract provided.

Intermittent State Constitutionalism, Justin R. Long

Law Faculty Research Publications

No abstract provided.

Crawford V. Washington: Bright Line Rules To Identity Testimonial Statements, Jenny M. Kim

UC Law Constitutional Quarterly

The Confrontation Clause of the Sixth Amendment gives a defendant in a criminal prosecution the right to "be confronted with the witnesses against him." The Constitution's text alone does not resolve the meaning of the Confrontation Clause and its application to the admissibility of an unavailable witness' statements. Thus, in determining whether admission of an unavailable witness' tape-recorded statement to a police officer was a Confrontation Clause violation, the Crawford Court looked to the history of the Confrontation Clause from its inception at English common law. The Court determined that the Framers of the Constitution were particularly concerned about the …

Control, Co-Optation And Co-Operation: Managing Religious Harmony In Singapore's Multi-Ethnic, Quasi-Secular State, Li-Ann Thio

UC Law Constitutional Quarterly

The governors of a multi-ethnic, multi-religious state which is based on political authority derived from secular laws, rather than theocratic mandate, are aware of the paradoxical quality of Religion as a force for peace and conflict. Indeed, the root word re (to bind) legare (what is broken) suggests that Religion is something which is redemptive in its healing quality. However, pragmatism informed by history reveals the need to maintain ethnic and religious cohesion as religious conflicts can tear plural societies apart. Religion is too potent a force to disregard or attempt to coercively eliminate, in a manner reminiscent of totalitarian …

What Nsa Is Doing... And Why It's Illegal, John Cary Sims

UC Law Constitutional Quarterly

On December 16, 2005, The New York Times disclosed the existence of a secret electronic surveillance program being carried out by the National Security Agency (NSA) that involves government interception of the contents of international communications without obtaining warrants. The Foreign Intelligence Surveillance Act of 1978 (FISA), which was enacted following the Supreme Court's decision in United States v. United States District Court (1972) and the Church Committee's disclosure of improper NSA activities, created a comprehensive system regulating electronic surveillance for foreign intelligence purposes. Warrants are required when such surveillance takes place within the United States or when it targets …

Paradoxes Of Constitutional Democracy, Kevin Olson

Studio for Law and Culture

Drawing on the work of Frank Michelman and Jürgen Habermas, I outline two interconnected paradoxes of constitutional democracy. The paradox of the founding prevents a purely democratic constitution from being founded, because the procedures needed to secure its legitimacy cannot be spontaneously self-generated. It displays an infinite regression of procedures presupposing procedures. The paradox of dynamic indeterminacy heads off any attempt to resolve this problem through constitutional amendment. It shows that a developing constitution needs some standard to guide it towards legitimacy. Without such a standard, constitutional reform will be aimlessly indeterminate. After rejecting proposed solutions to these paradoxes based …

The "Protection Of Lawful Commerce In Arms Act": Immunity For The Firearm Industry Is A (Constitutional) Bulls-Eye, R. Clay Larkin

Kentucky Law Journal

No abstract provided.

Prescribing Morality: The Constitutionality Of Pharmacist Conscience Clauses, Taylor Genovese

UC Law Constitutional Quarterly

Health provider "conscience clauses" were first enacted in response to the United States Supreme Court decision in Roe v. Wade and were specifically related to religious or moral objections to abortion. Generally, today's conscience clauses go well beyond the issue of abortion and provide "varying" levels of legal protection for health providers who refuse to perform services that are against their religious or moral beliefs.

This Note argues that legislation that provides an absolute right for pharmacists to refuse to fill valid prescriptions based on the pharmacist's religious or moral beliefs threatens the constitutionally protected right to access contraceptives if …

The Structural Inadequacy Of Public Schools For Stigmatized Minorities: The Need For Institutional Remedies, Shavar D. Jeffires

UC Law Constitutional Quarterly

This Article challenges the failure of courts and advocates considering remedies in school cases to assess whether public schools, as currently constituted, are institutionally aligned with stigmatized minorities' particular educational needs. Numerous legal scholars have written about the longstanding failure of public schools to effectively educate racial minorities, but they have overlooked the relationship of public schools' institutional context to the educational consequences of racial stigma. This Article does so, claiming, first, that stigma attacks the capacities enabling effective education, and that educational services therefore must specifically account for stigma's noxious effects on racial minorities' educability. Stigma, I contend, uniquely …

Amicus Brief Of Constitutional Law Professors David L. Faigman And Ashutosh A. Bhagwat, Et Al. In The Case Of Gonzales V. Carhart, David L. Faigman, Ashutosh A. Bhagwat, Kathrny Davis

UC Law Constitutional Quarterly

This is an amici curiae brief submitted to the United States Supreme Court in the Gonzales v. Carhart and Gonzales v. Planned Parenthood cases (i.e., the partialbirth abortion cases) argued during the October, 2006 Term. The question the brief addresses is whether the Supreme Court should defer to congressional findings of fact, when the factual questions at issue help to determine the scope of a basic, constitutional right. The argument presented in the brief is as follows:

The question of what level of deference is owed legislative findings of fact in constitutional litigation is not new. It divided the Court …

Why Bivens Won't Die: The Legacy Of Peoples V. Cca Detention Centers, Lumen N. Mulligan

Faculty Works

Interpreting recent Supreme Court precedent, the Tenth Circuit, in Peoples v. CCA Detention Centers, held that a federal prisoner confined in a privately run prison may not bring a Bivens suit against the employees of the private prison for violations of his constitutional rights when alternative state-law causes of action are available. The author first reviews the Supreme Court's evolving Bivens jurisprudence and turns next to an overview of the Tenth Circuit's opinion. Third, the author argues that, despite the Tenth Circuit's new approach, putative constitutional claims brought under state-law theories of recovery will often be re-federalized, producing uniform federal …

The New Commerce Clause Doctrine In Game Theoretical Perspective, Maxwell L. Stearns

Faculty Scholarship

The Roberts Court emerges at a critical juncture in the development of Commerce Clause doctrine. While the Commerce Clause doctrine implicates concerns for federalism and separation of powers, both of which are rooted in the earliest part of our constitutional history, the new Court presents an ideal opportunity to critically assess existing doctrines and to develop new analytical paradigms. The Rehnquist Court succeeded for the first time in sixty years in imposing substantive limits on the scope of this important source of Congressional power. That Court proved far less successful, however, in developing a coherent normative theory that reconciles the …

The Legal Meaning Of Commerce In The Commerce Clause, Robert G. Natelson

Faculty Law Review Articles

In this article the author inquires into the meaning of the legal term "commerce" at the the time the Constitution was written, debated, and ratified. The article provides additional support for the conclusion that, for reasons of policy and politics, the founding generation inserted this conceptual and legal boundary into the Constitution and the clear inference from these findings collectively is that the Commerce Clause was designed to give Congress jurisdiction over the law merchant insofar as it pertained to interjurisdictional activities, which was the same jurisdiction that pre-Revolution American pamphleteers had conceded to Parliament.

Part I examines contending definitions …

Judicial Review Of Special Interest Spending: The General Welfare Clause And The Fiduciary Law Of The Founders, Robert G. Natelson

Faculty Law Review Articles

This article explores the fiduciary law of the founding fathers to determine whether it was part of the constitutional design for the Judiciary to review special interest appropriations, and, if so, how the courts might proceed. The author’s findings suggest that, at least from the standpoint of the original understanding of the Constitution, prior judicial deference to the Legislature has been excessive and that there are solid constitutional grounds in arguing for a more searching standard of review.

Reflections On Brady V. Maryland, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

Part I of this Article describes the evolution of the Brady rule over the past forty-three years. Part I sketches the origins of the rule and its doctrinal developments. Part II closely examines Brady's impact on constitutional criminal procedure. Part II suggests that Brady's essential goal has been eroded by the courts, subverted by prosecutors, and ignored by disciplinary bodies. Part III proposes that only through expanding a defendant's right to discovery can the goal of Brady be realized. The Article concludes that Brady, more than any other rule of constitutional criminal procedure, has been the most fertile and widespread …

Popular Constitutionalism In The Civil War: A Trial Run, Daniel W. Hamilton

Scholarly Works

No abstract provided.

A Symposium On The People Themselves: Popular Constitutionalism And Judicial Review; Introduction, Daniel W. Hamilton

Scholarly Works

No abstract provided.

William Rehnquist, The Separation Of Powers, And The Riddle Of The Sphinx, Jay S. Bybee

Scholarly Works

William Rehnquist's tenure on the Supreme Court presents a Sphinx-like riddle for students of the separation of powers: “What animal is that which in the morning goes on four, at noon on two, and in the evening on three feet?” One might well answer: “Rehnquist's separation of powers jurisprudence, as it is a difficult creature to characterize, arguably evolving over time.” In adolescence, it appeared an originalist on all fours, in manhood it walked erect, a Byron White functionalist, and in old age . . . well, perhaps the Sphinx might just devour one after all! Indeed, it is difficult …

A Poster Child For Us (Symposium: The Effects Of Capital Punishment On The Administration Of Justice), Robert Blecker

Articles & Chapters

No abstract provided.

My Father, John Locke, And Assisted Suicide: The Real Constitutional Right, John B. Mitchell

Faculty Articles

This article discusses the right to assisted suicide, a right not derived from anything explicit or implied in any textual provision of the Constitution. It is a right derived from the two underlying political philosophies, which form the basis of the entire U.S. Constitutional enterprise: John Locke's Social Contract and Civic Republicanism. In Part I, this article discusses Glucksberg's fundamental rights analysis. So much has been written about this case that this article will limit comments to briefly adding thoughts as to why, given the combination of the Court's motivation, both institutional and pragmatic, in approaching this case, and its …

Sovereignty, Not Due Process: Personal Jurisdiction Over Nonresident, Alien Defendants, Austen L. Parrish

Articles by Maurer Faculty

The Due Process Clause with its focus on a defendant's liberty interest has become the key, if not only, limitation on a court's exercise of personal jurisdiction. This due process jurisdictional limitation is universally assumed to apply with equal force to alien defendants as to domestic defendants. With few exceptions, scholars do not distinguish between the two. Neither do the courts. Countless cases assume that foreigners have all the rights of United States citizens to object to extraterritorial assertions of personal jurisdiction.

But is this assumption sound? This Article explores the uncritical assumption that the same due process considerations apply …

Tucker’S Rule: St. George Tucker And The Limited Construction Of Federal Power, Kurt T. Lash

Law Faculty Publications

When Joseph Story published his Commentaries on the Constitution in 1833, he dedicated the work "To the Honorable John Marshall," whose "expositions of constitutional law enjoy a rare and extraordinary authority. They constitute a monument of fame far beyond the ordinary memorials of political and military glory." Throughout the Commentaries, Story generously quoted Chief Justice Marshall's great nationalist opinions in McCulloch v. Maryland, Gibbons v. Ogden, and Cohens v. Virginia and used them to construct a thoroughly nationalist reading of the federal Constitution. Along the way, Story seemingly dismantled prior states' rights interpretations of federal power, particularly St. George Tucker's …