Constitutional Law Commons^™

Home Sweet Home?! Maybe Not For Parolees And Probationers When It Comes To Fourth Amendment Protection, David M. Stout

Kentucky Law Journal

No abstract provided.

The Case For Kentucky Sex Offenders: Residency Restrictions And Their Constitutional Validity, Alicia A. Sterrett

Kentucky Law Journal

No abstract provided.

Marbury In Mexico: Judicial Review's Precocious Southern Migration, M. C. Mirow

UC Law Constitutional Quarterly

Scholars agree that the United States Supreme Court did not "discover" the general judicial review aspects of Marbury v. Madison (1803) until nearly a century later in 1895. This article reveals that the Mexican Supreme Court, relying heavily on U.S. constitutional sources and actually quoting Marbury, discovered this aspect of the case more than a dozen years earlier than the United States Supreme Court.

In attempting to construct United States-style judicial review for the Mexican Supreme Court in the 1880s, Ignacio Vallarta, president of the court, read Marbury in a way that preceded this use of the case in the …

Bankruptcy And Free Speech: New Bankruptcy Code Provisions Restrict Attorneys' Right To Properly Advise Clients, Robin Huffman

UC Law Constitutional Quarterly

The 2005 amendments to the Bankruptcy code, known collectively as the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA), marked a sweeping overhaul of the bankruptcy system in the United States, and also sparked considerable litigation. Some of the most significant litigation arising out of BAPCPA has come from attorneys arguing that portions of BAPCPA violate the First Amendment. The free speech challenges arise from portions of the act governing debt relief agencies, a new designation under BAPCPA. If courts determine that attorneys fall within the meaning of debt relief agencies, attorneys argue that the provisions of BAPCPA constitute an …

Introducing The Law Of Nonprofit Organizations And Philanthropy, David A. Brennen

Law Faculty Scholarly Articles

On January 5,2007, the Nonprofit and Philanthropy Law Section of AALS held its first program at the AALS Annual Meeting in Washington, D.C. The program, entitled "State-Level Legal Reform of the Law of Nonprofit Organizations," was a fitting way to launch what should prove to be a valuable contribution to the study of law relating to nonprofit organizations and philanthropy. This burgeoning area of academic legal study is well poised to grow by leaps and bounds in the coming years due to its impact on many traditional areas of legal study, including tax law, corporate law, estate law, trust law, …

Constitution Day, 2007, Robert Berry

Librarian Publications

Robert Berry, the research librarian for the social sciences at the Ryan Matura Library, has written an essay about the Constitution and the American founding, on the occasion of Constitution Day 2007 at Sacred Heart University.

Tempering The Commerce Power, Robert G. Natelson

Faculty Law Review Articles

The Supreme Court's modern interpretation of the Necessary and Proper Clause in the realm of interstate commerce is textually problematic, unfaithful to the Constitution's original meaning, and contains positive incentives for Congress to over-regulate. The Necessary and Proper Clause was intended to embody the common law doctrine of principals and incidents, and the Court should employ that doctrine as its interpretive benchmark. The common law doctrine contains less, although some, bias toward over-regulation, and it is flexible enough to adapt to changing social conditions. Adherence to the common law doctrine would markedly improve Commerce Power jurisprudence and reduce incentives for …

The Original Understanding Of The Indian Commerce Clause, Robert G. Natelson

Faculty Law Review Articles

This article is a comprehensive analysis of the original meaning of and understanding behind the Constitution's Indian Commerce Clause under which Congress claims plenary and exclusive power over federal affairs with Indian tribes. The author concludes that, as originally understood, congressional power over the tribes was to be neither plenary nor exclusive.

The Founders' Hermeneutic: The Real Original Understanding Of Original Intent, Robert G. Natelson

Faculty Law Review Articles

This article re-examines the controversial question of whether the American Founders believed their own subjective understandings should guide future interpretation of the U.S. Constitution, or whether they thought the constitutional construction should be guided only by objective public meaning or some other hermeneutic standard.

Freedom To Integrate: A Desegregationist Perspective On The Thirteen Amendment., Alexander Tsesis

Faculty Publications & Other Works

No abstract provided.

Undermining Inalienable Rights: From Dred Scott To The Rehnquist Court., Alexander Tsesis

Faculty Publications & Other Works

No abstract provided.

Privacy Wars: Eu Versus Us: Scattered Skirmishes, Storm Clouds Ahead., Allen E. Shoenberger

Faculty Publications & Other Works

No abstract provided.

Disappearing Safeguards: Fisa Nonresident Alien "Loophole" Is Unconstitutional, Brenton Hund

Cardozo Journal of International and Comparative Law

The note argues that the Foreign Intelligence Surveillance Act (FISA) contains a "nonresident alien loophole" that undermines constitutional protections, particularly for U.S. persons. This loophole, expanded by amendments such as the Patriot Act and the Lone Wolf Amendment, allows the government to conduct surveillance on nonresident aliens under relaxed standards, which can incidentally target U.S. citizens without meeting FISA's stricter requirements. The analysis contends that this loophole violates the Fourth Amendment by enabling surveillance on U.S. persons without probable cause or proper warrants, eroding privacy rights in the name of national security. The note advocates for legislative reforms to close …

Winning The Battle, But Perhaps Losing The War: Endorsing Deregulation Of Emergency Contraception At The Expense Of Derogating Abortion, Melissa Bond

Cardozo Journal of International and Comparative Law

No abstract provided.

Pandemic Fears And Contemporary Quarantine: Protecting Liberty Through A Continuum Of Due Process Rights, Michelle A. Daubert

Buffalo Law Review

No abstract provided.

¿ La Raza Latina?: Multiracial Ambivalence, Color Denial, And The Emergence Of A Tri-Ethnic Jurisprudence At The End Of The Twentieth Century, Tom I. Romero Ii

Scholarly Works

No abstract provided.

In Defense Of Mandatory Arbitration (If Imposed On The Company), Jean R. Sternlight

Scholarly Works

Having spent much of her academic life battling companies' mandatory imposition of binding arbitration on consumers and employees, the author now switches gears. This Article contemplates whether mandatory binding arbitration is acceptable if imposed by the government on companies (governmental mandatory arbitration) rather than by companies on their employees and consumers (private mandatory arbitration). Specifically, the Article considers the possibility of statutes that would provide little guys (consumers and employees) with an opportunity to take their disputes to binding arbitration rather than litigation. If the little guys chose arbitration over litigation, post-dispute, companies would have to agree to such arbitration, …

Emerging Latina/O Nation And Anti- Immigrant Backlash, Sylvia R. Lazos

Scholarly Works

This foreword is an introduction to the LatCrit XI, Working and Living in the Global Playground: Frontstage and Backstage symposium, convened at William S. Boyd School of Law, in Las Vegas Nevada, during October 2006 and called upon over 150 academics to focus on the impacts of globalization and immigration. At no time has LatCrit's critical approach of interconnecting the structures of inequality, the market forces of globalization, and the cultural hostility towards outsider groups been more relevant.

Backlash against immigrants, particularly Latina/o “illegals,” is on the rise. This Introduction seeks to outline the challenges that the current immigration quandary …

Developing Las Vegas: Creating Inclusionary Affordable Housing Requirements In Development Agreements, Ngai Pindell

Scholarly Works

The lack of affordable shelter for all of America's families often appears to be an immutable part of America's housing landscape. If the inclusionary housing regime in Las Vegas allowed local governments and developers any discretion in the decision to include affordable housing in a particular development agreement, the regime would have to establish an equivalent mechanism such as individual developer suits to check abuses of this discretion. A potential safeguard of effective affordable housing planning under development agreements could be the expertise of planners and other local government officials. Inclusionary housing requirements within development agreements ensure affordable housing issues …

Restoring The Lost World Of Classical Legal Thought: The Presumption In Favor Of Liberty Over Law And The Court Over The Constitution, Thomas B. Mcaffee

Scholarly Works

In 1998, legal historian William M. Wiecek published a book outlining the basic legal ideology that brought us the “Lochner era” in Supreme Court decision-making. It was fittingly entitled, The Lost World of Classical Legal Thought in America: Law and Ideology, 1886-1937. Wiecek demonstrated that the “classical” legal thought that generated the “libertarian” decision-making of the Lochner era, which occurred during the first third or so of the twentieth century, was the attempt to bring Lockean political principles directly to bear on the task of interpreting the 1787 Constitution in the post-Reconstruction era. In 2004, Professor Randy E. Barnett contends …

The Constitutional Structure Of Disestablishment, Ian C. Bartrum

Scholarly Works

This article proceeds in the structuralist tradition, which Professor Charles Black describes as "the method of inference from the structure and relationships created by the Constitution." The article takes a structural approach to the Establishment Clause: it reexamines the theoretical foundations of disestablishment, and infers a constitutional structure designed to create a dialectical relationship between political institutions and social institutions. The structural thesis requires that our political institutions safeguard individual liberty of conscience by bracketing all religious questions. The antithesis ensures the existence of free and independent social organizations dedicated to building public virtue. The article then applies the structural …

Of Metaphor, Metonymy, And Corporate Money: Rhetorical Choices In Supreme Court Decisions On Campaign Finance Regulation, Linda L. Berger

Scholarly Works

This Article examines the metaphorical and metonymical framing of corporate money in Supreme Court decisions about campaign finance regulation. Metaphorical influences (corporation as a person, spending money as speech, marketplace of ideas as the model for First Amendment analysis) affected early decisions about the regulation of corporate spending in election campaigns. Later, a metonymical move to isolate corporate money and then to focus on its malevolent tendencies displaced the earlier view of corporate money as speech. This movement was best depicted in McConnell v. Federal Election Commission, 540 U.S. 93 (2003), the Supreme Court's 2003 decision on the Bipartisan Campaign …

The Constitution In A Postmodem Age, Calvin Massey

Washington and Lee Law Review

No abstract provided.

Comparative Constitutional Advocacy , Mark C. Rahdert

American University Law Review

When the Supreme Court handed down its decision in Roper v. Simmons, a longstanding debate about comparative analysis in constitutional cases came to national prominence. In Roper the Court relied in part on comparative precedent in ruling that the execution of juvenile offenders violates the Eighth Amendment's proscription against cruel and unusual punishment. This look beyond our borders earned the Supreme Court both accolades and scathing criticism. This article comprehensively evaluates the place of comparative analysis in our constitutional jurisprudence. It discusses and adds to the arguments in support of comparative constitutional advocacy offered by several leading scholars, and responds …

Gender Curve: An Analysis Of Colleges' Use Of Affirmative Action Policies To Benefit Male Applicants, Debra Franzese

American University Law Review

This comment evaluates the constitutionality of affirmative action policies that benefit male students. Part I sets out background information about potential causes of action and remedies for female students who challenge affirmative action policies that benefit male students. Section A discusses the Equal Protection Clause of the Fourteenth Amendment and the development of the law regarding universities’ use of racial affirmative action policies. Section B discusses potential remedies under Title IX of the Education Amendments of 1972 (“Title IX”) and the similarity between Title IX and Title VI of the Civil Rights Act (“Title VI”). Section C discusses state remedies …

Tom Delay, Robert Torricelli, And Political Party Maneuvering: Why The First Amendment Associational Rights Of Political Parties Should Be Extended To Include Candidate Replacement , Kevin M. Baker

American University Law Review

This Comment analyzes whether the First Amendment

associational rights of the major political parties should include

candidate replacement and argues that the rights of parties to define

who votes in the primary logically should be extended to include a

right to replace candidates on the ballot after a withdrawal. Based on

the more recent Supreme Court cases finding greater freedom of

association for political parties, this Comment will focus on the 2002

replacement of Robert Torricelli in the New Jersey U.S. Senate

election and the 2006 failure to replace Tom DeLay in the Texas

22nd Congressional District U.S. House of …

Anti-Federalist Procedure, A. Benjamin Spencer

Washington and Lee Law Review

No abstract provided.

Dred Scott: Tiered Citizenship And Tiered Personhood, Henry L. Chambers, Jr.

Law Faculty Publications

Part I of this brief essay discusses Dred Scott and the Court's acceptance of tiered citizenship and tiered personhood. Part II discusses the Reconstruction Amendments as a response to tiered citizenship and tiered personhood. Part III notes two issues-felon disfranchisement and the treatment of detainees in the War on Terror-that help illuminate tiered citizenship and tiered personhood and help us evaluate the conditions under which citizenship and personhood rights may be restricted without creating tiers of citizenship and tiers of personhood.

Deciding Death, Corinna Barrett Lain

Law Faculty Publications

When the Supreme Court is deciding death, how much does law matter? Scholars long have lamented the majoritarian nature of the Court's Eighth Amendment "evolving standards of decency" doctrine, but their criticism misses the mark. Majoritarian doctrine does not drive the Court's decisions in this area; majoritarian forces elsewhere do. To make my point, I first examine three sets of "evolving standards" death penalty decisions in which the Court implicitly or explicitly reversed itself, attacking the legal justification for the Court's change of position and offering an extralegal explanation for why those cases came out the way they did. I …

Originalism And The Natural Born Citizen Clause, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

The enigmatic phrase "natural born citizen" poses a series of problems for contemporary originalism. New originalists, like Justice Scalia, focus on the public meaning of the constitutional text, but the notion of a "natural born citizen" was likely a term of art, derived from the idea of a "natural born subject" in English law--a category that most likely did not extend to persons, like John McCain, who were born outside sovereign territory. But the constitution speaks of "citizens" and not "subjects," introducing uncertainties and ambiguities that might (or might not) make McCain eligible for the presidency.

What was the original …