Constitutional Law Commons^™

Are Statutes Constraining Gubernatorial Power To Make Temporary Appointments To The United States Senate Constitutional Under The Seventeenth Amendment, Vikram David Amar

UC Law Constitutional Quarterly

This Article is Professor Amar's response to Professor Levinson's article above.

Morse V. Frederick And The Regulation Of Student Cyberspeech, Brannon P. Denning, Molly C. Taylor

UC Law Constitutional Quarterly

Morse v. Frederick marked the Supreme Court's first decision addressing the First Amendment rights of public school students in nearly twenty years. This Article analyzes the decision in light of the Court's prior decisions since the landmark Tinker case, and speculate on the future of student speech cases. In addition, it examines the impact the decision could have on what looks to be the new frontier of student First Amendment rights: public school regulation of on-line speech-student "cyberspeech."

Cyberbullying, inappropriate contact between adults and minors, inappropriate (sometimes illegal) activity posted for all to see on social networking sites like MySpace-all …

Section 1983 Civil Rights Litigation From The October 2006 Term, Martin Schwartz

Touro Law Review

No abstract provided.

Right To An Attorney, Henry L. Chambers, Jr.

Law Faculty Publications

The Supreme Court has identified two distinct rights to an attorney that stem from the U.S. Constitution. One is rooted in the Fifth Amendment. The other is rooted in the Sixth and Fourteenth Amendments.

Expatriation, John Paul Jones

Law Faculty Publications

Encyclopedia article on expatriation

Procedural Due Process, John Paul Jones

Law Faculty Publications

Encyclopedia article on procedural due process.

Reconsidering Gobitis: An Exercise In Presidential Leadership, Robert Tsai

Scholarly Articles in Law Reviews & Journals

In June of 1940, the Supreme Court ruled 8-1 in Minersville School District v. Gobitis that the First Amendment posed no barrier to the punishment of two school age Jehovah's Witnesses who refused to pay homage to the American flag. Three years later, the Justices reversed themselves in West Virginia State Board of Education v. Barnette. This sudden change has prompted a host of explanations. Some observers have stressed changes in judicial personnel in the intervening years; others have pointed to the wax and wane of general anxieties over the war; still others have emphasized the sympathy-inspiring acts of …

Grounding Cyberspeech: Public Schools' Authority To Discipline Students For Internet Activity, Sarah O. Cronan

Kentucky Law Journal

No abstract provided.

The Price Of Fame: Brown As Celebrity, Mark A. Graber

Faculty Scholarship

This essay examines the history of Brown I, Brown II, and Bolling in the Supreme Court of the United States. Enduring precedents, the analysis suggests, go through three stages. In the first stage, they fight for survival. This describes Brown during the first decade after that decision was handed down. No Supreme Court Justice asserted, “Brown should be overruled,” but many citations to Brown came in the context of political efforts to reverse or marginalize that decision. In the second stage, precedents fight for extension. This describes Brown in the later Warren and Burger years. Civil rights activists insisted …

Securing The Rule Of Law Through Interpretive Pluralism: An Argument From Comparative Law, Richard Stith

UC Law Constitutional Quarterly

As the distinction between interpretation and politics diminishes, the need for pluralism in interpretation increases. The Article argues, first, that the rule of law requires that no one tribunal possess the power to subordinate a whole legal system to its politicized rule.

The Article then uses comparative legal study to analyze two tested alternatives to concentrating interpretive authority in a single court. Under the "separation of powers" approach, some or many jurisdictionally distinct institutions are granted powers to interpret and apply the constitution and the laws. A multiplicity of interpreters helps to prevent domination by any one legal ideology and …

Direct Democracy And Article Ii: Additional Thoughts On Initiatives And Presidential Elections, Vikram David Amar

UC Law Constitutional Quarterly

This Article focuses on the first of the two questions in Professor Richard Hasen's aricle on whether "initiated changes to rules for choosing Presidential electors violate Article II." The article looks closely at places other than Article II where the Constitution uses the phrase "legislature of the States" and carefully examines Supreme Court cases on the topic. Given that initiative proponents are not necessarily foreclosed by the text of the Constitution, or Supreme Court case law, and given that initiative backers have some nineteenth and twentieth century history on their side, courts should be hesitant to invalidate all initiated changes …

When Legislature May Mean More Than Legislature: Initiated Electoral College Reform And The Ghost Of Bush V. Gore, Richard L. Hasen

UC Law Constitutional Quarterly

Whether or not the California Electoral College measure qualifies for the ballot and is voted upon, courts eventually will have to confront the question whether initiated Electoral College reform violates Article II of the U.S. Constitution. With the National Popular Vote movement in full swing, and other proposals for Electoral College reform floating around, it is only a matter of time before some initiative changing the system qualifies for a state ballot and stands a chance of passing.

Though the constitutional question is straightforward, the answer is not: A strict textual view suggests that initiated reform is unconstitutional; case law …

Would You Like Some First Amendment Rights With That - How Mandatory Nutritional Disclosure On Restaurant Menus Violate The Freedom Of Commercial Speech, Nicole Anderson

UC Law Constitutional Quarterly

Allegations of a so-called "obesity epidemic" have spawned widespread panic throughout the United States. Legislators in California and New York have answered the outcry by crafting regulations which would mandate the disclosure of nutritional information of food items on restaurant menus and menu boards. Although these regulations dream of promoting healthier eating habits throughout the community, they do so by depriving restaurants of their First Amendment rights. A closer look at the regulations reveals a glaring violation of restaurants' freedom of commercial speech, forcing the restaurants to communicate the government's message to their customers without any true causal link between …

Rehabilitating Juvenile Sex Offenders With A Life Sentence, 42 J. Marshall L. Rev. 187 (2008), Adam Doeringer

UIC Law Review

No abstract provided.

Constitution Day, 2008, Robert Berry

Librarian Publications

Robert Berry, the research librarian for the social sciences at the Sacred Heart University Library, has written an essay about the United States Constitution and the freedom of speech and expression. The essay was written for the occasion of Constitution Day 2008 at Sacred Heart University.

Problem Of Equality In Takings, The , Nestor M. Davidson

Faculty Scholarship

The Supreme Court is finally beginning to bring clarity to the law of regulatory takings and in the process is bringing to the fore a previously submerged theme in the jurisprudence: regulatory takings as a question of distributional justice and horizontal equity. This Article argues that this equality dimension is fundamentally problematic. On a theoretical level, privileging norms of equality engrafts political process rationales for heightened scrutiny onto groups defined solely by the differential burden of a regulation, an exercise in circularity. Equally troubling is the inverted political economy of regulatory takings claims that is likely to result: the greatest …

Children, Kin And Court: Designing Third Party Custody Policy To Protect Children, Third Parties And Parents, Josh Gupta-Kagan

Faculty Publications

No abstract provided.

Unintended Consequences: Why Congress Should Tread Lightly When Entering The Field Of Family Law, Elizabeth G. Patterson

Faculty Publications

No abstract provided.

Reconciliation In The Wake Of Tragedy: Cambodia's Extraordinary Chambers Undermines The Cambodian Constitutiton, Tessa V. Capeloto

Washington International Law Journal

Between 1975 and 1979, the Khmer Rouge regime was responsible for approximately 1.7 million deaths caused by deportation, starvation, murder, and torture. In 2001, Cambodia established the Extraordinary Chambers, an internationalized domestic tribunal, or “hybrid court,” to prosecute the perpetrators most responsible for these atrocities. As the Cambodian government’s primary legal response to the Khmer Rouge, the tribunal conflicts with the requirements of Article 52 of the Cambodian Constitution, an article that requires a policy of national reconciliation to ensure national unity. Cultural conceptions of national reconciliation coupled with the legislative history and purpose of the constitution strongly suggest that …

Civil War In The U.S. Foreign Relations Law: A Dress Rehearsal For Modern Transformations, The The Use And Misuse Of History In U.S. Foreign Relations Law, Thomas H. Lee

Faculty Scholarship

The first of the four U.S. foreign relations law insights of the Prize Cases that this Article will discuss is the notion that international law provides a basis for the President's exercise of military force in a manner neither specifically enumerated in the Constitution nor preauthorized by congressional enactments. The specific military action was the proclamation of a naval blockade that applied not only to active Confederate belligerents but also to loyal U.S. citizens residing in seceding or soon-to-secede states and to foreign neutral citizens. The second insight is the notion that federal constitutional law protections for U.S. citizens, such …

Wartime Security And Liberty Under Law, Robert H. Jackson

Buffalo Law Review

Address delivered at Buffalo Law School. May 9, 1951

Quo Vadis, Habeas Corpus?, James Robertson

Buffalo Law Review

The 2007 James McCormick Mitchell Lecture

Overcoming Lochner In The Twenty-First Century: Taking Both Rights And Popular Sovereignty Seriously As We Seek To Secure Equal Citizenship And Promote The Public Good, Thomas B. Mcaffee

Scholarly Works

Professor McAffee reviews substantive due process as the textual basis for modern fundamental rights constitutional decision-making. He contends that we should avoid both the undue literalism that rejects the idea of implied rights, as well as the attempt to substitute someone’s preferred moral vision for the limits, and compromises, that are implicit in—and intended by—the Constitution’s text. He argues, moreover, that we can largely harmonize the various goals of our constitutional system by taking rights seriously and understanding that securing rights does not exhaust the Constitution’s purpose.

The Automobile Exception In Nevada: A Critique Of The Harnisch Cases, Thomas B. Mcaffee, John P. Lukens, Thaddeus J. Yurek Iii

Scholarly Works

This Article offers a critique of Nevada's Harnisch cases and calls for the Nevada Supreme Court to reconsider its ruling. The authors begin by examining the historical development of the automobile exception, beginning with Carroll v. United States. There the Supreme Court reasoned that both probable cause and the exigency of the mobility of automobiles justified a search without a warrant. But almost seventy-five years later, in Maryland v. Dyson, the Court clarified its conclusion that the automobile exception has no separate exigency requirement. In turn, the authors will then examine Nevada's application of the automobile exception prior to 1998's …

The "Foundations" Of Anti-Foundationalism — Or, Taking The Ninth Amendment Lightly: A Comment On Farber's Book On The Ninth Amendment, Thomas B. Mcaffee

Scholarly Works

The Ninth Amendment has served two purposes in constitutional discourse - to refute textualists and originalists, and to supply the historical grounds for reading the Constitution as a rights-foundationalist document. Professor McAffee's review of Professor Farber's book on the amendment raises the question whether, given Farber's prior rejection of foundationalism, it is possible for him to reconcile these two ends. It also suggests that, even if the amendment did grow from the environment that gave us the Declaration of Independence, the history gives reason to doubt that its purpose was to provide for the legal enforcement of unstated moral claims, …

The Political Origins Of Secular Public Education: The New York School Controversy 1840-1842, Ian C. Bartrum

Scholarly Works

As the title suggests, this article explores the historical origins of secular public education, with a particular focus on the controversy surrounding the Catholic petitions for school funding in nineteenth-century New York City. The article first examines the development of Protestant nonsectarian common schools in the northeast, then turns to the New York controversy in detail, and finally explores that controversy's legacy in state constitutions and the Supreme Court. It is particularly concerned with two ideas generated in New York: (1) Bishop John Hughes' objection to nonsectarianism as the 'sectarianism of infidelity'; and (2) New York Secretary of State John …

Metaphors And Modalities: Meditations On Bobbitt’S Theory Of The Constitution, Ian C. Bartrum

Scholarly Works

This article builds on Philip Bobbitt's remarkable work in constitutional theory, which posits a practice-based constitution based in six accepted "modalities" of argument. I attempt to supplement Bobbitt's theory - which has a static and exclusive quality to it - with an account of interpretive evolution based in Max Black's interaction theory of metaphors. I suggest that we can (and do) create constitutional metaphors by deliberately overlapping Bobbitt's modalities of argument, and that through these creative acts we can grow the practice of American constitutionalism. I then present case studies of this metaphoric process at work in three fields of …

Vicarious Criminal Liability And The Constitutional Dimensions Of Pinkerton, Alex Kreit

American University Law Review

This article considers what limits the constitution places on holding someone criminally liable for another's conduct. While vicarious criminal liability is often criticized, there is no doubt that it is constitutionally permissible as a general matter. Under the long-standing felony murder doctrine, for example, if A and B rob a bank and B shoots and kills a security guard, A can be held criminally liable for the murder. What if, however, A was not involved in the robbery but instead had a completely separate conspiracy with B to distribute cocaine? What relationship, if any, does the constitution require between A's …

The "High-Crime Area" Question: Requiring Verifiable And Quantifiable Evidence For Fourth Amendment Reasonable Suspicion Analysis [Pdf], Andrew Guthrie Ferguson, Damien Bernache

American University Law Review

This article proposes a legal framework to analyze the "high crime area" concept in Fourth Amendment reasonable suspicion challenges. Under existing Supreme Court precedent, reviewing courts are allowed to consider that an area is a "high crime area" as a factor to evaluate the reasonableness of a Fourth Amendment stop. See Illinois v. Wardlow, 528 U.S. 119 (2000). However, the Supreme Court has never defined a "high crime area" and lower courts have not reached consensus on a definition. There is no agreement on what a "high-crime area" is, whether it has geographic boundaries, whether it changes over time, whether …

Three Myths Of The Ninth Amendment, Kurt T. Lash

Law Faculty Publications

The breathtakingly broad language of the Ninth Amendment is both a blessing and a curse. It is a blessing for those seeking support for expansive theories of individual rights. Indeed, it is hard to conceive of a theory of individual liberty that cannot find at least rhetorical support in the Ninth Amendment's declaration of retained rights. It is not surprising, therefore, to find the Ninth Amendment invoked in support of everything from Dial-a-Porn to prostitution to organ selling. Once one decides that the Ninth Amendment refers to "other" unnamed individual liberties, there is literally no textual reason to exclude any …