Constitutional Law Commons^™

Scrutiny Land, Randy E. Barnett

Michigan Law Review

Scrutiny Land is the place where government needs to justify to a court its restrictions on the liberties of the people. In the 1930s, the Supreme Court began limiting access to Scrutiny Land. While the New Deal Court merely shifted the burden to those challenging a law to show that a restriction of liberty is irrational, the Warren Court made the presumption of constitutionality effectively irrebuttable. After this, only one road to Scrutiny Land remained: showing that the liberty being restricted was a fundamental right. The Glucksberg Two-Step, however, limited the doctrine of fundamental rights to those (1) narrowly defined …

Substantive Due Process After Gonzales V. Carhart, Steven G. Calabresi

Michigan Law Review

This Article begins in Part I with a doctrinal evaluation of the status of Washington v. Glucksberg ten years after that decision was handed down. Discussion begins with consideration of the Roberts Court's recent decision in Gonzales v. Carhart and then turns to the subject of Justice Kennedy's views in particular on substantive due process. In Part II, the Article goes on to consider whether the Glucksberg test for substantive due process decision making is correct in light of the original meaning of the Fourteenth Amendment. The Article concludes in Parts II and III that Glucksberg is right to confine …

Due Process Traditionalism, Cass R. Sunstein

Michigan Law Review

In important cases, the Supreme Court has limited the scope of "substantive due process" by reference to tradition, but it has yet to explain why it has done so. Due process traditionalism might be defended in several distinctive ways. The most ambitious defense draws on a set of ideas associated with Edmund Burke and Friedrich Hayek, who suggested that traditions have special credentials by virtue of their acceptance by many minds. But this defense runs into three problems. Those who have participated in a tradition may not have accepted any relevant proposition; they might suffer from a systematic bias; and …

In The Laboratory Of The States: The Progress Of Glucksberg'S Invitation To States To Address End-Of-Life Choice, Kathryn L. Tucker

Michigan Law Review

It has now been ten years since the Supreme Court handed down Glucksberg and Quill, rulings on laws that forbid "assisted suicide." In that time, normative and legal developments in the fields of law, medicine, and psychology have changed the landscape of the discourse on the choice of a mentally competent, terminally ill individual to choose to self-administer medications to bring about a peaceful death. Although the Court rejected petitioners' claims that state laws denying them the ability to end their terminal illnesses through self-administered medication violated the Constitution, it left states with the opportunity to experiment with legislation …

Judicial Compensation And The Definition Of Judicial Power In The Early Republic, James E. Pfander

Michigan Law Review

Article III's provision for the compensation of federal judges has been much celebrated for the no-diminution provision that forecloses judicial pay cuts. But other features of Article Ill's compensation provision have largely escaped notice. In particular, little attention has been paid to the framers' apparent expectation that Congress would compensate federal judges with salaries alone, payable from the treasury at stated times. Article III's presumption in favor of salary-based compensation may rule out fee-based compensation, which was a common form of judicial compensation in England and the colonies but had grown controversial by the time of the framing. Among other …

A Call For The End Of The Doctrine Of Realignment, Jacob S. Sherkow

Michigan Law Review

In Indianapolis v. Chase National Bank, 1941, the Supreme Court established the doctrine of realignment, requiring federal courts to examine the issues in dispute and realign each party as plaintiff or defendant if necessary. Due to the complete diversity requirement, realignment gave the federal courts the ability to both create and destroy diversity jurisdiction. Since 1941, the federal courts have struggled to interpret the central holding in Indianapolis, and have created several competing "tests" for realignment. This confusion has made the doctrine of realignment unworkable. Realignment along with each of the present tests-encourages jurisdictional abuses by forcing the federal …

From Bad To Worse?: Some Early Speculation About The Roberts Court & The Constitutional Fate Of The Poor, Andy Siegel

Faculty Articles

Conventional wisdom - supported in large measure by blackletter law - suggests that discrimination on the basis of wealth or class largely escapes constitutional sanction. If the conventional wisdom is correct, then issues of class and equal protection represent one area in which advocates of a more robust individual rights jurisprudence have little to fear from the Roberts Court. In this essay, prepared for a Symposium on "The Roberts Court and Equal Protection: Gender, Race, and Class," Professor Siegel offers a contrary view. He makes three related observations. First, existing caselaw is more complex than usually acknowledged, offering substantial interstitial …

White Cartels, The Civil Rights Act Of 1866, And The History Of Jones V. Alfred H. Mayer Co., Darrell A. H. Miller

Faculty Scholarship

In 2008, Jones v. Alfred H. Mayer Co. turned forty. In Jones, the U.S. Supreme Court held for the first time that Congress can use its enforcement power under the Thirteenth Amendment, which abolished slavery, to prohibit private racial discrimination in the sale of property. Jones temporarily awoke the Thirteenth Amendment and its enforcement legislation--the Civil Rights Act of 1866--from a century-long slumber. Moreover, it recognized an economic reality: racial discrimination by private actors can be as debilitating as racial discrimination by public actors. In doing so, Jones veered away from three decades of civil rights doctrine--a doctrine that had …

Issue Brief: Overcoming Legal Barriers To The Bulk Sale Of At-Risk Mortgages, Michael S. Barr, James A. Feldman

Other Publications

This memorandum argues that the sale of loans and loan pools to new owners would help to stabilize housing prices, and that such a modification to the REMIC rules would be desirable and well within Congress’ constitutional authority. Furthermore, it would not lead to successful legal claims by investors in securitized loan pools under the Just Compensation or Due Process clauses, which provide the primary constitutional protections for property interests.

Limiting Federal Agency Preemption: Recommendations For A New Federalism Executive Order, William Funk, Thomas Mcgarity, Nina A. Mendelson, Sidney Shapiro, David Vladeck, Matthew Shudtz, James Goodwin

Other Publications

The structure of the U.S. Constitution reflects a profound respect for the principles of federalism and state sovereignty. These principles require the federal government to recognize and encourage opportunities for state and local governments to exercise their authority, especially in areas of traditional state concern such as the protection of the health, safety, and welfare of their citizens. However, over the last six years there has been a coordinated Executive Branch effortto use the regulatory process to shield certain product manufacturers from state tort liability. The Food and Drug Administration, National Highway Traffic Safety Administration, and Consumer Product Safety Commission, …

Does An Accused Forfeit The Confrontation Right By Murdering A Witness, Absent A Purpose To Render Her Unavailable?, Richard D. Friedman

Articles

If an accused murdered a witness, should he be deemed to have forfeited the right under the Sixth Amendment "to be confronted with" the witness, absent proof that the accused committed the murder for the purpose of rendering her unavailable as a witness?

Requiem For Section 1983, Paul D. Reingold

Articles

Section 1983 no longer serves as a remedial statute for the people most in need of its protection. Those who have suffered a violation of their civil rights at the hands of state authorities, but who cannot afford a lawyer because they have only modest damages or seek only equitable remedies, are foreclosed from relief because lawyers shun their cases. Today civil rights plaintiffs are treated the same as ordinary tort plaintiffs by the private bar: without high damages, civil rights plaintiffs are denied access to the courts because no one will represent them. Congress understood that civil rights laws …

God’S Littlest Children And The Right To Live: The Case For A Positivist Pro-Life Overturning Of Roe, Raymond B. Marcin

Scholarly Articles

For those who understand that God's littlest children have the same right to life that all God's children have, the day on which the United States Supreme Court decided Roe v. Wade was a day that echoed the grief and frustration that, more than a century earlier, accompanied the decision in Dred Scott v. Sandford. And the day on which the United States Supreme Court decides to overturn Roe v. Wade and all the other pro-abortion decisions will be a day of heart-felt thanksgiving. From the pro-life perspective, however, it will not be enough, that the Supreme Court merely overturns …

Frozen In Time: The State Action Doctrine's Application To Amateur Sports, Dionne L. Koller

All Faculty Scholarship

The state action doctrine has as its central goal the preservation of liberty by limiting the intrusion of the government into the "private" sphere. It achieves this by applying the Constitution only to government, and not private, action. Traditionally, amateur sports regulators such as the National Collegiate Athletic Association (NCAA) and the United States Olympic Committee (USOC) have been viewed by courts as private. As a result, this article explains that courts generally give great deference to amateur sports organizations such as the NCAA and USOC to regulate sports with little judicial interference, including in the area of constitutional litigation. …

How The United States Government Sacrifices Athletes' Constitutional Rights In The Pursuit Of National Prestige, Dionne L. Koller

All Faculty Scholarship

This Article is about the United States Government trading off athletes' constitutional rights in the pursuit of national prestige through sport. The Olympic Movement has for decades provided an incentive for governments of all ideologies to use elite athletes to enhance national prestige or demonstrate national supremacy. This phenomenon is commonly known as "sportive nationalism." Unlike countries such as the former East Germany and Soviet Union, the United States Government has not readily acknowledged its own practice of sportive nationalism, preferring instead to assert that Olympic Movement sport in the United States is a private endeavor. This Article, however, demonstrates …

Kurt Lash's Majoritarian Difficulty: A Response To A Textual-Historical Theory Of The Ninth Amendment, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Kurt Lash believes that, in addition to individual natural rights, the Ninth Amendment protects collective or majoritarian rights as well. In this essay the author explains why Lash’s majoritarian vision is contrary to the antimajoritarianism of the man who devised the Ninth Amendment, James Madison, and those who wrote the Constitution. Not coincidentally, it is contrary to the individualism of the other amendments constituting the Bill of Rights, and the public meaning of the Ninth Amendment as it was received during its ratification. It is also contrary to the individualist conception of popular sovereignty adopted in the text of the …

The Constitutional Dimension Of Immigration Federalism, Clare Huntington

Faculty Scholarship

Although the federal government is traditionally understood to enjoy exclusive authority over immigration, states and localities are increasingly asserting a role in this field. This development has sparked vigorous debate on the propriety of such involvement, but the debate is predicated on a misunderstanding of the nature of federal exclusivity. Challenging the conventional wisdom that the Constitution precludes a meaningful role for state and local involvement in immigration.

This Article argues that the Constitution allows immigration authority to be shared among levels of government. After establishing the correctness of this view of immigration authority, this Article argues that the constitutionality …

Amending The Massachusetts Parental Notification Statute, Yuval Simchi-Levi

Cardozo Journal of Equal Rights & Social Justice

The note argues that the Massachusetts Parental Notification Statute, enacted in 1996, should be amended to explicitly permit public schools to teach about sexual orientation in the context of promoting tolerance without requiring parental notification. The statute's ambiguity regarding whether such discussions fall under "human sexual education or human sexuality issues" has led to hesitation among schools and legal challenges. The author contends that clarifying the statute would align it with Massachusetts' commitment to diversity and tolerance, as reflected in court rulings like Goodridge v. Department of Public Health.

Alternative State Remedies In Constitutional Torts, John F. Preis

Law Faculty Publications

In recent years, a subtle shift in constitutional tort doctrine has quietly begun to take root. In Bivens actions, the Supreme Court has recently implied that constitutional tort plaintiffs must seek relief under state law when it is available, rather than invoke their federal constitutional rights. This marks a dramatic change from past practices. For much of the twentieth century, a central premise in the constitutional tort field has been that the federal remedy is "supplementary" to the state remedy; constitutional tort plaintiffs have therefore been permitted to seek a remedy under federal law without regard to the availability of …

On Federalism, Freedom, And The Founders' View Of Retained Rights - A Reply To Randy Barnett, Kurt T. Lash

Law Faculty Publications

In A Textual-Historical Theory of the Ninth Amendment, 60 Stanford Law Review, I explain how some of the most common theories of the Ninth Amendment either have nothing to do with the actual text of the Amendment or place the text in conflict with similar terms in the Tenth Amendment. Focusing on the actual words of the Amendment, I argue that the text of the Ninth point towards a federalist rule of construction in which the people's retained rights are necessarily left to the control of the collective people in the several states. I also explain how this reading fits …

Random Drug Testing, Henry L. Chambers, Jr.

Law Faculty Publications

Random drug testing coexists uneasily with a general Fourth Amendment right to be free of suspicionless government searches. Typically, a governmental search is accompanied by a warrant supported by individualized suspicion, that is, probable cause. Random drug testing involves a search without any particularized suspicion that the subject of the search has used drugs.

Ebay Rx, Tracy Thomas

Con Law Center Articles and Publications

No abstract provided.

Congressional Oversight Of National Security Activities: Improving Information Funnels, Heidi Kitrosser

Cardozo Law Review

No abstract provided.

Decisions About Coercion: The Corporate Attorney-Client Privilege Waiver Problem, Daniel C. Richman

Faculty Scholarship

For almost a decade, law reviews and hearing rooms have resounded with cogent arguments that, for corporations at least, the attorney-client privilege has been chilled, eroded, attacked, or even killed by the federal government's misuse of its bargaining leverage. Yet it is unclear whether this rhetoric is overstated or understated. Given that most federal criminal defendants plead guilty, and that an extraordinarily large percentage of them provide information and testimony against others in order to avoid harsh sentences (or to avoid being charged at all), one could as easily say that the Fifth and Sixth Amendments to the U.S. Constitution …

"The Perpetuation Of Our Political Institutions": Lincoln, The Powers Of The Commander In Chief, And The Constitution, Michael Les Benedict

Cardozo Law Review

No abstract provided.

Franklin D. Roosevelt, Commander In Chief, Elizabeth L. Hillman

Cardozo Law Review

No abstract provided.

The Calling Forth Clause And The Domestic Commander In Chief, Stephen I. Vladeck

Cardozo Law Review

No abstract provided.

Intention Is All There Is: A Critical Analysis Of Aharon Barak's Purposive Interpretation In Law, Stanley Fish

Cardozo Law Review

No abstract provided.

Second Class Delivery: The Elimination Of Birthright Citizenship As A Repeal Of "The Pursuit Of Happiness", Sara C. Barnhart

Georgia Law Review

In recent years, immigration has been at the forefront of political debate in the United States. In response to concerns over undocumented immigrants, some members of Congress have proposed the elimination of birthright citizenship. Eliminating birthright citizenship means that citizenship at birth would be based on the citizenship of one's parents rather than one's birth in U.S. territory. This Note demonstrates the historical nature of this U.S. immigration controversy by tracing similar movements throughout history. It documents the roots of the common law doctrine of birthright citizenship, followed by a discussion of the protection of citizenship status the Fourteenth Amendment's …

Can Glucksberg Survive Lawrence? Another Look At The End Of Life And Personal Autonomy, Yale Kamisar

Articles

In Washington v. Glucksberg, the Court declined to find a right to physician-assisted suicide ("PAS") in the Constitution. Not a single Justice dissented. One would expect such a ruling to be quite secure. But Lawrence v. Texas, holding that a state cannot make consensual homosexual conduct a crime, is not easy to reconcile with Glucksberg. Lawrence certainly takes a much more expansive view of substantive due process than did Glucksberg. It is conceivable that the five Justices who made up the Lawrence majority-all of whom still sit on the Court-might overrule Glucksberg. For various reasons, …