Constitutional Law Commons^™

Of Inkblots And Originalism: Historical Ambiguity And The Case Of The Ninth Amendment, Kurt T. Lash

Law Faculty Publications

Ever since Justice Goldberg's concurring opinion in Griswold v. Connecticut, the Ninth Amendment has been a flashpoint in debates over the merits of originalism as an interpretive theory. Judge Bork's comparison of interpreting the Ninth Amendment to reading a text obscured by an inkblot has been particularly subjected to intense criticism. The metaphor has been attacked as erasing the Ninth Amendment from the Constitution, and as representing the inevitably selective and inconsistent use of

text and history by so-called originalists.

It turns out, however, that not only was Judge Bork right to reject Justice Goldberg's reading of the Ninth Amendment, …

The Original Meaning Of An Omission: The Tenth Amendment, Popular Sovereignty And “Expressly” Delegated Power, Kurt T. Lash

Law Faculty Publications

Today, courts and commentators generally agree that early efforts to strictly limit the federal government to only expressly enumerated powers were decisively rebuffed by Chief Justice John Marshall in McCulloch v. Maryland. According to Marshall, the fact that the framers departed from the language of the Articles of Confederation and omitted the term expressly suggested that they intended Congress to have a broad array of implied as well as expressly delegated powers. As Supreme Court Justice Joseph Story later wrote, any attempt to read the Tenth Amendment as calling for a strict construction of federal power was simply an attempt …

Can Constitutionalism Be Leftist?, Louis Michael Seiman

Georgetown Law Faculty Publications and Other Works

In this essay, written for a symposium on the work of Mark Tushnet, I examine Tushnet’s effort to defend popular constitutionalism in his powerful and subtle book entitled ATaking the Constitution Away from the Courts,” I ask whether the book succeeds in reconciling constitutionalism with leftism. If there is anyone who could accomplish this task, it is Tushnet. He is without question our most thoughtful constitutional leftist. And yet, the book, at least taken at face value, fails to achieve its goal. To the extent that the book argues for constitutionalism, it abandons leftism, and to the extent it is …

Unconscious Racism Revisited: Reflections On The Impact And Origins Of "The Id, The Ego, And Equal Protection", Charles R. Lawrence Iii

Georgetown Law Faculty Publications and Other Works

Twenty years ago, Professor Charles Lawrence wrote “The Id, The Ego, and Equal Protection: Reckoning With Unconscious Racism.” This article is considered a foundational document of Critical Race Theory and is one of the most influential and widely cited law review articles. The article argued that the purposeful intent requirement found in Supreme Court equal protection doctrine and in the Court’s interpretation of antidiscrimination laws disserved the value of equal citizenship expressed in those laws because many forms of racial bias are unconscious. Professor Lawrence suggested that rather than look for discriminatory motive, the Court should examine the cultural meaning …

Fighting Women: The Military, Sex, And Extrajudicial Constitutional Change, Jill Elaine Hasday

Georgetown Law Faculty Publications and Other Works

The Supreme Court in Rostker v. Goldberg (1981) upheld male-only military registration, and endorsed male-only conscription and combat positions. Few cases have challenged restrictions on women's military service since Rostker, and none have reached the Supreme Court. Federal statutes continue to exclude women from military registration and draft eligibility, and military regulations still ban women from some combat positions. Yet many aspects of women's legal status in the military have changed in striking respects over the past quarter century while academic attention has focused elsewhere. Congress has eliminated statutory combat exclusions, the military has opened many combat positions to women, …

The Outrageous God: Emotional Distress, Tort Liability, And The Limits Of Religious Advocacy, Jeffrey Shulman

Georgetown Law Faculty Publications and Other Works

When Matthew Snyder died fighting for his country, his memory was celebrated, and his loss mourned. The Westboro Baptist Church conducted a celebration of a different kind by picketing near Matthew’s funeral service. The church held signs that read, “You are going to hell,” “God hates you,” “Thank God for dead soldiers,” and “Semper fi fags.” In the weeks following the funeral, the church posted on its website, godhatesfags.com, an “epic” entitled “The Burden of Marine Lance Cpl. Matthew Snyder.” Matthew’s burden, as the church saw it, was that he had been “raised for the devil” and “taught to defy …

Disintegration, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

The silver lining behind the Supreme Court's decision to disintegrate the Seattle and Louisville public schools is that the decision also runs the risk of disintegrating judicial review. Parents Involved in Community Schools v. Seattle School District No. 1 holds that the Constitution bars voluntary, race-conscious efforts by two local school boards to retain the racial integration that they worked so hard to achieve after Brown. In so holding, the Court curiously reads the Equal Protection Clause as preventing the use of race to pursue actual equality, and instead insists on a type of formal "equality" that has historically …

Treaties As Law Of The Land: The Supremacy Clause And The Judicial Enforcement Of Treaties, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

Courts in recent years have perceived threshold obstacles to the enforcement of treaties deriving from their nature as contracts between nations that generally depend for their efficacy on the interest and honor of the parties, rather than on domestic adjudication. This approach to treaty enforcement is in tension with the Constitution’s declaration that treaties are part of the law of the land and its instruction to judges to give them effect. The Founders understood that treaties depended on interest and honor on the international plane, but they made treaties enforceable in our courts anyway in order to avoid the international …

Moral Conflict And Conflicting Liberties, Chai R. Feldblum

Georgetown Law Faculty Publications and Other Works

The authors' goal in this chapter is to surface some of the commonalities between belief liberty and identity liberty and to offer some public policy suggestions for what to do when these liberties conflict. She first wants to make transparent the conflict that she believes exists between laws intended to protect the liberty of lesbian, gay, bisexual, and transgender (LGBT) people so that they may live lives of dignity and integrity and the religious beliefs of some individuals whose conduct is regulated by such laws. The author believes those who advocate for LGBT equality have downplayed the impact of such …

Change Of Sex Designation On Transsexuals' Birth Certificates: Public Policy And Equal Protection, Stephanie Markowitz

Cardozo Journal of Equal Rights & Social Justice

The note examines the legal inconsistencies in the United States regarding the amendment of birth certificates for postoperative transsexual individuals, highlighting the disparity in treatment between male-to-female (MTF) and female-to-male (FTM) transsexuals. It argues that these inconsistencies violate the Equal Protection Clause by subjecting similarly situated individuals to different standards, often requiring MTF transsexuals to undergo more invasive surgeries than FTM transsexuals. The author advocates for a more equitable approach, emphasizing the importance of medical professionals' opinions and aligning legal standards with modern understandings of gender identity.

Letting "Privates" Be Private: Toward A Right Of Gender Selfdetermination, Samuel E. Bartos

Cardozo Journal of Equal Rights & Social Justice

The note examines the contradictory landscape of transgender jurisprudence, particularly focusing on the legal struggles of transgender individuals to achieve recognition of their gender identity. It highlights the Kansas Supreme Court's decision in In the Matter of the Estate of Marshall G. Gardiner, which denied legal recognition of a transgender individual's marriage, contrasted with more progressive rulings in other jurisdictions. The analysis underscores the need for a consistent and inclusive legal framework to address the rights of transgender individuals, emphasizing the potential for future Supreme Court intervention to establish uniform standards.

Heller And Insurrectionism, Carl Bogus

Law Faculty Scholarship

No abstract provided.

Equality In Germany And The United States, Edward J. Eberle

Law Faculty Scholarship

No abstract provided.

The German Idea Of Freedom, Edward J. Eberle

Law Faculty Scholarship

No abstract provided.

"Pick"Ering The Speech Rights Of Public School Teachers: Arguing For A Movement By Courts Toward The Hazelwood-Tinker Standard Under The First Amendment, Heather Bennett

Florida A & M University Law Review

No abstract provided.

Where Are Your Papers? Photo Identification As A Prerequisite To Voting, Michael J. Kasper

Florida A & M University Law Review

Remember the old war movies? Richard Attenborough or William Holden is slowly walking down misty Parisian streets, the collar of his trench turned up, the brim of the fedora pulled low. A black sedan screeches around the corner and screams to a stop in front of him before he has time to react. Soldiers bound from the car, pistols drawn, and bark "Vhere are your papers?" When did America become this movie? The U.S. Supreme Court will take up this question this term. This article explores five recent state laws, from Indiana, Arizona, Georgia, Michigan, and Missouri requiring citizens to …

Privacy, Authenticity, & Equality: The Moral And Legal Case For The Right To Homosexual Marriage, Jeffrey L. Johnson

Florida A & M University Law Review

No abstract provided.

Right Responsibility: Does The Right To Procreate Include The Responsibility To Parent?, A Felicia Epps

Journal Publications

No abstract provided.

Who Is A Terrorist - Drawing The Line Between Criminal Defendants And Military Enemies, Benjamin Priester

Journal Publications

The threat of terrorist attacks by al Qaeda and other transnational terrorist organizations is a constant topic of public discourse in the United States. Despite its prominence, the nature of that threat is notoriously difficult to define. On the one hand, terrorists might be compared to other kinds of organized, dangerous criminals who should be prosecuted and punished using the federal criminal law. On the other hand, terrorists might be compared to enemy soldiers engaged in warfare against the United States. There are problems with either approach, however, because the threat posed by al Qaeda and other transnational terrorist organizations …

The Generative Structure Of Aboriginal Rights, Brian Slattery

Articles & Book Chapters

Are aboriginal rights historical rights -- rights that gained their basic form in the distant past? Or are they generative rights -- rights that, although rooted in the past, have the capacity to renew themselves, as organic entities that grow and change? Section 35(1) of the Constitution Act, 1982 provides little guidance on the point, referring ambiguously to "existing aboriginal and treaty rights". In the Van der Peet case, decided in 1996, the Supreme Court of Canada characterized aboriginal rights primarily as historical rights, moulded by the customs and practices of aboriginal groups at the time of European contact, with …

Accommodating Respectful Religious Expression In The Workplace, Nantiya Ruan

Scholarly Works

This Article makes the case for judicial recognition of respectful religious expression in the workplace as more consistent with the Court's Establishment Clause jurisprudence and also more true to the legislative intent of the religious accommodation provisions of Title VII. Respectful religious pluralism in the workplace should become the norm through judicial requirements of best practices in the workplace. Such a view should be wholly supported by the majority of the Justices because it is consistent with their expressed views, in the Establishment Clause case law, that religion fosters moral good and that in a pluralistic society religious expression cannot …

The "Scope Of A Student": How To Analyze Student Speech In The Age Of The Internet, Erin Reeves

Georgia Law Review

In three seminal cases dating from 1969-1988, the U.S. Supreme Court determined that students have a more limited right to free speech while within the confines of a public school building. In recent years, however, more and more cases have arisenin which it is not so clear whether a student speaker is "on-campus,"due in large part to the rapid increase in speech communicated over the Internet. This Note explores the possibility of how far the "confines of a public school building" should be extended in this age of the Internet. After analyzing the current confusion regarding what amount of restriction …

Them That Has, Gets, Daria Roithmayr

Publications

No abstract provided.

Taxation And Doing Business In Indian Country, Erik M. Jensen

Faculty Publications

Furthering investment in Indian country (a term that includes, but is not limited to, reservations) is an important goal, but potential investors are hesitant - and with reason. One disincentive to invest is uncertainty about tax liability. Understanding taxation in Indian country requires knowledge not only of traditional tax law, but also of American Indian law principles dating from the early nineteenth century, and not many practitioners are up to that task. This article tries to make sense, as much as is possible, of the doctrines that have developed over the centuries.

The article first discusses some basics: the concept …

Independent Of The Constitution?--Issues Raised By An Independent Federal Legislative Ethics Commission With Independent Enforcement Authority, Paul Taylor

University of Richmond Law Review

No abstract provided.

Boundary Waters Treaty Of 1909 As A Model For Interjurisdictional Water Governance, Robert H. Abrams

Journal Publications

In an age of increasing interjurisdictional water conflict and water management concern, the list of accomplishments of the Boundary Water Treaty of 1909 (BWT), reached in a harmonious manner, raises the possibility that, perhaps, the management mechanisms of the BWT might beneficially be used in other contexts. This Article will take up that possibility in the context of three contemporary American interstate water allocation disputes. These disputes are (1) a relatively simple cross-border complaint by a downstream state, South Carolina, that North Carolina cities are using too much water of the Catawba River; (2) the basin-wide dispute regarding water use …

Pressures Toward Mediocrity In The Representation Of Children, Barbara Glesner Fines

Faculty Works

When children are the subject of dependency, adoption or guardianship proceedings, protecting those children requires attention to a variety of interests. Children need a voice: an advisor and an advocate whose judgment is unclouded by conflicting interests. Courts need information that the adult parties to the proceedings may not easily discover or willingly provide. The families and social services agencies need monitors and mediators. The attorney guardian ad litem (GAL) is, in many situations, called upon to meet all these needs. During the past decade, major academic conferences and professional organizations have devoted thousands of hours to developing standards of …

An Analysis Of Death Penalty Decisions From The October 2006 Supreme Court Term (Nineteenth Annual Supreme Court Review, October 2006 Supreme Court Term), Richard Klein

Scholarly Works

No abstract provided.

“Equality, I Spoke Th At Word/As If A Wedding Vow”: Mental Disability Law And How We Treat Marginalized Persons, Michael J. Perlin, John Douard

NYLS Law Review

No abstract provided.

Sex Offender As Scapegoat: The Monstrous Other Within, John Douard

NYLS Law Review

No abstract provided.