Constitutional Law Commons^™

In The Trenches: Searches And The Misunderstood Common-Law History Of Suspicion And Probable Cause, Fabio Arcila

Scholarly Works

A detailed analysis of the common law during the Framers’ era, and of how it reflected the Fourth Amendment’s restrictions, shows that many judges believed they could issue search warrants without independently assessing the adequacy of probable cause, and that this view persisted even after the Fourth Amendment became effective. This conclusion challenges the leading originalist account of the Fourth Amendment, which Professor Thomas Davies published in the Michigan Law Review in 1999.

Learned treatises in particular, and to a lesser extent a few case decisions, had articulated a judicial duty to monitor probable cause. But it is a mistake …

The Post-Cuno Litigation Landscape, Morgan Holcomb, Nicholas Allen Smith

Faculty Scholarship

In 1996, Northeastern University School of Law Professor Peter Enrich wrote a groundbreaking article, in which he argued that certain state tax incentives are unconstitutional as violations of the Commerce Clause. This article begins by describing the constitutional landscape into which Enrich cast his argument, and them turns describe the litigation that Enrich’s article has generated, including the much-watched case, Cuno v. DaimlerChrysler Corp., which held the promise of resolving this dormant Commerce Clause question, only to wither away on the vine of standing. Following the discussion of Cuno, this article will turn to an exploration of the litigation that …

Habeas Corpus Law In The Ninth Circuit After Mendoza V. Carey: A New Era?, Jay W. Spencer

Seattle University Law Review

After a brief review in Part II of the current habeas corpus appeals practice following the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),9 Part III of this Note will examine the factual and procedural history of Mendoza. Next, Part IV will analyze the case's majority and dissenting opinions. Finally, Part V contrasts Mendoza with factually similar cases in other jurisdictions and demonstrates that, even though the Ninth Circuit stands alone, its ruling strikes a proper balance between limiting abuse of the writ and ensuring that it remains available to all inmates who diligently pursue …

Lincoln At 200: On Lincoln's Statesmanship, Dred Scott And Constitutional Evil, Harry F. Tepker Jr.

Oklahoma Law Review

No abstract provided.

New Legal Rights In The Legal System Of The United States Of America, Roberto Rosas, Bill Piatt

Faculty Articles

Currently, there exist an extensive variety of individual rights recognized both nationally and internationally. With the course of time, however, they change; therefore, governments occasionally consider it necessary to create additional protections for their citizens. Generally, these propositions are made possible through the creation and approval of new rights. Even though these new rights are based on other previously established rights, they do offer society the opportunity to protect and defend itself as well as allowing it to continue making progress.

Only a few of the new legal rights that have been recognized within the last few years will be …

A Response To Professor Steinberg’S Fourth Amendment Chutzpah, Fabio Arcila

Scholarly Works

Professor David Steinberg believes that the Fourth Amendment was intended only to provide some protection against physical searches of homes through imposition of a specific warrant requirement because the Framers' only object in promulgating the Fourth Amendment was to ban physical searches of homes under general warrants or no warrants at all. This response essay takes issue with his thesis by (1) discussing its implications, (2) reviewing some concerns with his methodology in reviewing the historical record, and (3) examining the theoretical implication underlying his thesis that, except as to homes, we have a majoritarian Fourth Amendment, and questioning whether …

Vertical Learning: On Baker And Rodriguez's "Constitutional Home Rule And Judicial Scrutiny", Nestor M. Davidson

Faculty Scholarship

In Constitutional Home Rule and Judicial Scrutiny, Lynn Baker and Daniel Rodriguez start an important conversation about an interesting and understudied puzzle. In one view of vertical federalism, the federal government is understood as constrained to enumerated powers, states retain plenary police power, and local governments are traditionally creatures of the state. This view yields something of structural constitutional bell curve that situates the heart of sovereignty at the state level, leaving the federal government and local governments with forms of limited authority on either end. Despite this seemingly privileged state position, however, federal courts seem unwilling in the main …

A Post-Morse Framework For Students' Potentially Hurtful Speech (Religious And Otherwise), Emily Gold Waldman

Elisabeth Haub School of Law Faculty Publications

In this Article, I weave together strands from Tinker, Fraser, and Morse, as well as from lower court decisions taking varying approaches to this issue, to propose a new standard for student speech that is potentially hurtful to other students. This approach encompasses, without being limited to, speech that is religiously-motivated in nature. I argue that student speech that is hurtful to other students (whether religiously-motivated or not) should first be divided into two categories: (1) speech that identifies particular students for attack; and (2) speech, such as the message on Harper's T-shirt, that expresses a general opinion without being …

Roth At Fifty: Reconsidering The Common Law Antecedents Of American Obscenity Doctrine, 41 J. Marshall L. Rev. 393 (2008), James R. Alexander

UIC Law Review

No abstract provided.

Constitutional Possibilities, Lawrence B. Solum

Indiana Law Journal

No abstract provided.

Lapdogs, Watchdogs, And Scapegoats: The Press And National Security Information, Mary-Rose Papandrea

Indiana Law Journal

In the United States, the executive branch possesses virtually unbridled authority to keep national security information from the public. Although the Freedom of Information Act and whistleblower protection laws serve as some check on the executive's power, these tools remain largely ineffectual. Because the desire for tight information control competes with the demands of news gathering, a "game of leaks" has developed among government officials and reporters in which the press alternatively serves as lapdogs, watchdogs, and scapegoats for the executive branch.

This Article demonstrates that the government has been communicating information to the public through leaks ever since the …

Simply Put: How Diversity Benefits Whites And How Whites Can Simply Benefit Diversity, Angela Mae Kupenda

Journal Articles

Although there are surmountable legal barriers to racial integration in education, fuller integration is possible. But first, whites must see how they benefit from diversity, and, second, whites must take simple steps toward integration that may, in turn, reveal to whites their desire to become more fully integrated. These two steps may help remove the limiting point to true integration.

The Original Meaning Of "Unusual": The Eighth Amendment As A Bar To Cruel Innovation, John F. Stinneford

UF Law Faculty Publications

In recent years, both legal scholars and the American public have become aware that something is not quite right with the Supreme Court's Eighth Amendment jurisprudence. Legal commentators from across the spectrum have described the Court's treatment of the Cruel and Unusual Punishments Clause as "embarrassing," "ineffectual and incoherent," a "mess," and a "train wreck." The framers of the Bill of Rights understood the word "unusual" to mean "contrary to long usage." Recognition of the word's original meaning will precisely invert the "evolving standards of decency" test and ask the Court to compare challenged punishments with the longstanding principles and …

Employee Speech & Management Rights: A Counterintuitive Reading Of Garcetti V. Ceballos, Elizabeth Dale

UF Law Faculty Publications

In the two years since the decision came down, courts and commentators generally have agreed that the Supreme Court's decision in Garcetti v. Ceballos sharply limited the First Amendment rights of public employees. In this Article, I argue that this widely shared interpretation overstates the case. The Court in Garcetti did not dramatically change the way it analyzed public employees' First Amendment rights. Instead, it restated the principles on which those claims rest, emphasizing management rights and the unconstitutional conditions doctrine. By making those two theories the centerpiece of the decision, the Court in Garcetti defined public employee speech rights …

Lessons Learned From Comparing The Application Of Constitutional Law And Anti-Discrimination Law To African Americans In The U.S. And Dalits In India In The Context Of Higher Education, Kevin D. Brown, Vinay Sitapati

Articles by Maurer Faculty

In this Article the authors will compare the development of constitutional law and federal anti-discrimination law in the context of higher education of African-Americans in the U.S. and Dalits in India. Both groups suffer from oppression and discrimination based upon a hereditary trait and related to their integration into mainstream society; neither group is completely isolated from the majority population responsible for the discrimination; and African-Americans and Dalits approximate similar percentages of their country's population. Based upon the 2000 census, African-Americans constitute 12.7% of the American populations, and, according to the 1991 Census Report of India, Dalits make up 16.5% …

The Fourth Amendment And Immigration Enforcement In The Home: Can Ice Target The Utmost Sphere Of Privacy?, Marisa Antos-Fallon

Fordham Urban Law Journal

This Note discusses whether targeting and entering homes of non-citizens without court-ordered warrants raises problems under the Fourth Amendment's prohibition of "unreasonable searches and seizures." Specifically, this note argues that additional protections are necessary to ensure that ICE does not violate the Fourth Amendment rights of those they target and those who get swept up in their enforcement effort. This is particularly true with initiatives such as "Operation Return to Sender" and "Operation Community Shield" because they are carried out in private homes, the traditional sphere of greatest Fourth Amendment protection. Part I of this Note details the particular ICE …

Let The Sun Shine On The Supreme Court, Marjorie Cohn

UC Law Constitutional Quarterly

Though the Supreme Court allows public attendance and print media coverage of argument sessions, Supreme Court Justices have long been reluctant to allow news cameras into the courtroom. Justice David Souter famously stated, "The day you see a camera come into our courtroom it's going to roll over my dead body." This essay, originally presented as part of the Hastings Constitutional Law Quarterly Volume 34 Symposium: Cameras in the Court, traces the history of cameras in the courtroom and the Justices' various reasons to oppose their entry. The essay argues that it is in the Supreme Courtroom that the law …

Political Party And Senatorial Succession: A Response To Vikram Amar On How Best To Interpret The Seventeenth Amendment, Sanford Levinson

UC Law Constitutional Quarterly

This Article explores the author's fundamental disagreement with Vikram Amar's argument as to the meaning of the Seventeenth Amendment. Amar's argument is "a brilliant explication of various trees that misses the reality of the surrounding forest." The author contrasts my response to this article to another article that several years ago definitively demonstrated the unconstitutionality of the current Succession in Office Act (the Act) inasmuch as it makes the Speaker of the House (and then the president pro tempore of the Senate) next in line to the vice president to fill any vacancies in the Oval Office. Both that article …

Presidential Power In Comparative Perspective: The Puzzling Persistence Of Imperial Presidency In Post-Authoritarian Africa, H. Kwasi Prempeh

UC Law Constitutional Quarterly

This Article focuses on the comparative dimension of a phenomenon that is already well known to U.S. constitutional discourse: the imperial presidency. While U.S. constitutional scholars have shown a great deal of interest in new constitutional courts in the world's newest democracies, the contemporaneous phenomenon of persistent imperial presidency in Africa has been largely ignored. Although relatively little attention has been paid to it in comparative constitutional discourses, Africa has witnessed since 1990 a dramatic transition to democratic rule that has resulted in the toppling of many of the region's long-reining autocrats and the installation of new counter-authoritarian constitutions. However, …

All The President's Lawyers: How To Avoid Another "Torture Opinion" Debacle, Dawn E. Johnsen

Articles by Maurer Faculty

No abstract provided.

Captive Audience Meetings And Forced Listening: Lessons For Canada From The American Experience, Sara Slinn

Articles & Book Chapters

Widespread adoption of mandatory representation votes and express protection of employer speech invite employer anti-union campaigns during union organizing, including employer-held captive audience meetings. Therefore, the problem of whether and how to restrict employers’ captive audience communications during union organizing is of renewed relevance in Canada. Captive meetings are a long-standing feature of American labour relations. This article considers how treatment of captive meetings evolved in the U.S., including the notion of employee choice, the “marketplace of ideas” view of expression dominating the American debate, and the central role of the contest between constitutional and statutory rights. It also considers …

A Choice That Leaves No Choice: Unconstitutional Coercion Under Real Id, Michael J. Allen

Seattle University Law Review

No abstract provided.

Taking Politics Religiously: Can Free Exercise And Establishment Clause Cases Illuminate The Law Of Democracy?, Pamela S. Karlan

Indiana Law Journal

Harris Lecture delivered at Indiana University School of Law-Bloomington on February 16, 2007.

Footnote Eleven For The New Millennium: Ecological Perspective Arguments In Support Of Compelling Interest, Malik Edwards

Seattle University Law Review

This Article proceeds in three Parts. Part II considers the historical and social context that led to the ultimate successful strategy in Brown. Although times may have changed, my ultimate argument is that contexts matters; as such, to fully understand Brown, we must understand the strategy behind it and the road that takes us from Plessy to Brown<,/em>. Part III considers the trends that led to Brown's undoing. While Brown I offers no remedy and Brown II provides that schools should be desegregated “with all deliberate speed,” one must understand the societal shifts that occurred, fundamentally changing the …

A Different Take On The Roberts Court: The Court As An Institution, Ideology, And The Settled Nature Of American Constitutional Law, Robert A. Sedler

Law Faculty Research Publications

No abstract provided.

Our Eighteenth Century Constitution, The Electoral College, And Congressional Reapportionment: A Response To Professor Daniel Tokaji, Robert Allen Sedler

Law Faculty Research Publications

No abstract provided.

Community, Diversity, And Equal Protection: The Louisville And Seattle School Cases (Symposium Introduction), Robert M. Ackerman

Law Faculty Research Publications

No abstract provided.

Gang Injunctions Under Heat From Equal Protection: Selective Enforcement As A Way To Defeat Discrimination, Cathy Wang

UC Law Constitutional Quarterly

Courts have issued gang injunctions, primarily in California, to enjoin alleged gang members from engaging in activities in furtherance of gang objectives. On the surface, these quasi-civil/criminal remedies might seem to protect the welfare of the community from alleged gang members. But a closer look reveals an Equal Protection problem: The injunctions prohibit defendants from doing what others can do solely based on their arbitrarily conferred gang affiliation status. What makes the situation all the more troubling is that many of the people labeled as "gang bangers" are poor minorities.

Because gang injunctions can easily entail unconstitutional discrimination, defendants should …

Domestic Surveillance For International Terrorists: Presidential Power And Forth Amendment Limits, Richard Henry Seamon

UC Law Constitutional Quarterly

After 9/11, the President authorized the National Security Agency to conduct warrantless electronic surveillance of American residents. Critics of this so called "Terrorist Surveillance Program" (TSP) say it violates the Foreign Intelligence Surveillance Act of 1978 (FISA) and the Fourth Amendment. Defenders of the TSP counter that, regardless whether it violates FISA, it falls within the President's congressionally irreducible power to protect national security and within the relaxed Fourth Amendment governing national security searches. This article focuses on the overlooked connection between the issues of whether the TSP (1) falls within the President's powers; or (2) violates the Fourth Amendment. …

Government-Sponsored Chaplains And Crisis: Walking The Fine Line In Disaster Response And Daily Life, Mary Jean Dolan

UC Law Constitutional Quarterly

Two significant public issues have been the limits of partnership between government and religion and government's role in helping citizens cope with disasters. One intriguing intersection of these issues is local governments' use of chaplaincy programs to address the human face of trauma, both large-scale and personal. This Article asserts that the constitutional line differs for mass disaster response and the daily human dramas, clearly painful, addressed by local police and fire departments. There is an important and valid role for clergy and faith-based assistance as part of the broad spectrum of governmental disaster relief. In the everyday tragedies, however, …