Constitutional Law Commons^™

The Shot Heard Around The Lgbt World: Bowers V Hardwick As A Mobilizing Force For The National Gay And Lesbian Task Force, Elizabeth Sheyn

Journal of Race, Gender, and Ethnicity

No abstract provided.

The Appropriations Power And Sovereign Immunity, Paul F. Figley, Jay Tidmarsh

Michigan Law Review

Discussions of sovereign immunity assume that the Constitution contains no explicit text regarding sovereign immunity. As a result, arguments about the existence-or nonexistence-of sovereign immunity begin with the English and American common-law doctrines. Exploring political, fiscal, and legal developments in England and the American colonies in the seventeenth and eighteenth centuries, this Article shows that focusing on common-law developments is misguided. The common-law approach to sovereign immunity ended in the early 1700s. The Bankers' Case (1690- 1700), which is often regarded as the first modern common-law treatment of sovereign immunity, is in fact the last in the line of English …

Constitutional Solipsism: Toward A Thick Doctrine Of Article Iii Duty; Or Why The Federal Circuits' Nonprecedential Status Rules Are (Profoundly) Unconstitutional, Penelope Pether

William & Mary Bill of Rights Journal

No abstract provided.

Guns And Speech Technologies: How The Right To Bear Arms Affects Copyright Regulations Of Speech Technologies, Edward Lee

William & Mary Bill of Rights Journal

This Article examines the possible effect the Supreme Court's landmark Second Amendment ruling in District of Columbia v. Heller will have on future cases brought under the Free Press Clause.' Based on the text and history of the Constitution, the connection between the two Clauses is undeniable, as the Heller Court itself repeatedly suggested. Only two provisions in the entire Constitution protect individual rights to a technology: the Second Amendment's right to bear "arms" and the Free Press Clause's right to the freedom of the "press," meaning the printing press. Both rights were viewed, moreover, as pre-existing, natural rights to …

Felon Disenfranchisement: A Call For Legislative Reform, Timothy P. Gilligan

Journal of Race, Gender, and Ethnicity

No abstract provided.

Felon Disenfranchisement And The Systemic Racism Of The Criminal Justice System, Matthew D. Itkin

Journal of Race, Gender, and Ethnicity

No abstract provided.

Felon Disenfranchisement As A Legitimate State Regulation, Boyoung Kang

Journal of Race, Gender, and Ethnicity

No abstract provided.

"An Opportunity For Effective Cross-Examination": Limits On The Confrontation Right Of The Pro Se Defendant, Alanna Clair

University of Michigan Journal of Law Reform

The rights of a defendant to confront his accusers and conduct his defense without the assistance of counsel are sacrosanct in the American judicial system. The rights of the defendant are even sometimes exalted at the expense of the rights of the public or of victims of crime. This Note examines the problem of a pro se defendant using his confrontation right to intimidate or harass his alleged victims testifying against him. It is well-established that the confrontation right is not unconditional. The problem comes in determining whether the courts can place limits on the confrontation right of a pro …

Connecting The Dots Between The Constitution, The Marshall Trilogy, And United States V. Lara: Notes Toward A Blueprint For The Next Legislative Restoration Of Tribal Sovereignty, Ann E. Tweedy

University of Michigan Journal of Law Reform

This law review Article examines: (1) the underpinnings of tribal sovereignty within the American system; (2) the need for restoration based on the Court's drastic incursions on tribal sovereignty over the past four decades and the grave circumstances, particularly tribal governments' inability to protect tribal interests on the reservation and unchecked violence in Indian Country, that result from the divestment of tribal sovereignty; (3) the concept of restoration as illuminated by United States v. Lara, and finally (4) some possible approaches to partial restoration.

The Article first evaluates the constitutional provisions relating to Indians and the earliest federal Indian law …

Clarifying Departmentalism: How The Framers' Vision Of Judicial And Presidential Review Makes The Case For Deductive Judicial Supremacy, David W. Tyler

William & Mary Law Review

No abstract provided.

The Content/Envelope Distinction In Internet Law, Matthew J. Tokson

William & Mary Law Review

Whether a component of an Internet communication is classified as "content" or "envelope" information determines in large part the privacy protection it receives under constitutional and statutory law. Courts and Internet law scholars have yet to offer a means of determining the content/envelope status of unique aspects of Internet communications-from email subject lines to website URLs. As a result, data with the potential to expose every website, every Internet file downloaded, and every email sent by an Internet user may be unprotected under current law.

This Article develops a legal framework for distinguishing content from envelope information in unique areas …

The Pros And Cons Of Politically Reversible 'Semisubstantive' Constitutional Rules, Dan T. Coenen

Scholarly Works

Most observers of constitutional adjudication believe that it works in an all-or-nothing way. On this view, the substance of challenged rules is of decisive importance, so that political decision makers may resuscitate invalidated laws only by way of constitutional amendment. This conception of constitutional law is incomplete. In fact, courts often use so-called “semisubstantive” doctrines that focus on the processes that nonjudicial officials have used in adopting constitutionally problematic rules. When a court strikes down a rule by using a motive-centered or legislative-findings doctrine, for example, political decision makers may revive that very rule without need for a constitutional amendment. …

The Reviewability Of The President's Statutory Powers, Kevin M. Stack

Vanderbilt Law School Faculty Publications

This Article argues that longstanding doctrines that exclude judicial review of the determinations or findings the President makes as conditions for invoking statutory powers should be replaced. These doctrines are inconsistent with the fundamental constitutional commitment to reviewing whether federal officials act with legal authorization. Where a statute grants power conditioned upon an official making a determination that certain conditions obtain--as statutes that grant power to the President often do-- review of whether that power is validly exercised requires review of the determinations the official makes to invoke the power. Review of those determinations is commonplace with regard to government …

Corruption Of Religion And The Establishment Clause, Andrew Koppelman

William & Mary Law Review

Government neutrality toward religion is based on familiar considerations: the importance of avoiding religious conflict, alienation of religious minorities, and the danger that religious considerations will introduce a dangerous irrational dogmatism into politics and make democratic compromise more difficult. This Article explores one consideration, prominent at the time of the framing, that is often overlooked: the idea that religion can be corrupted by state involvement with it. This idea is friendly to religion but, precisely for that reason, is determined to keep the state away from religion. If the religion-protective argument for disestablishment is to be useful today, it cannot …

Deliberative Constitutionalism, John J. Worley

BYU Law Review

No abstract provided.

The Court Of Life And Death: The Two Tracks Of Constitutional Sentencing Law And The Case For Uniformity, Rachel E. Barkow

Michigan Law Review

The Supreme Court takes two very different approaches to substantive sentencing law. Whereas its review of capital sentences is robust, its oversight of noncapital sentences is virtually nonexistent. Under the Court's reading of the Constitution, states must draft death penalty statutes with enough guidance to avoid death sentences being imposed in an arbitrary and capricious manner Mandatory death sentences are disallowed, and the sentencing authority must have the opportunity to consider mitigating evidence. The Court will scrutinize whether the death sentence is proportionate to the crime and the defendant, and it has frequently exempted certain crimes and certain offenders from …

The Spoils System In Check? Public Employees' Right To Political Affiliation & The Balkanized Policymaking Exception To § 1983 Liability For Wrongful Termination, Christopher V. Fenlon

Cardozo Law Review

No abstract provided.

Loyalty Testing For Attorneys: When Is It Necessary And Who Should Decide?, Mary Elizabeth Basile

Cardozo Law Review

The concept of loyalty has been manipulated to mean different things with respect to the profession of law depending on the political climate brought about by national crises throughout the history of this country. An attorney's loyalty to his country has referred to more than mere allegiance and support of the laws of the sovereignty in that it has been understood to concern specified beliefs, doctrines, and associations. It has been tested through the imposition of loyalty oaths from the colonial days through the Civil War and Cold War, to the current post-September 11 era in which the government's emphasis …

April 29, 2009: The Growth Of Secularism, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Growth of Secularism“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Executive Authority To Reform Health: Options And Limitations, Madhu Chugh

O'Neill Institute Papers

Presidential power has provoked increasingly vigorous debate since the turn of this century. In recent years, scholars and lawyers have been grappling with how Congress's dictates may limit the President's Commander-in-Chief power to detain enemy combatants at Guantanamo Bay, to fight wars abroad, and to conduct intelligence activities at home. But policymakers have not yet explored the many possibilities for invoking the President's "Take Care" power to change health care policy.

This paper explores the scope and limits of President Barack Obama's ability to invoke his executive authority to reform health care. Specifically, it identifies ways the Obama Administration can …

Preview Of Forest Grove School District V. T.A., E. Chaney Hall

Duke Journal of Constitutional Law & Public Policy Sidebar

Should disabled children who do not get the individualized help they need at public schools be able to force their public schools to pay for them to attend private schools? The Supreme Court will grapple with that question during oral arguments on April 28 in Forest Grove School District v. T.A. In her preview of the case, E. Chaney Hall boils the case down to statutory interpretation of the Individuals with Disabilities Education Act. Hall points out that though 1997 amendments to the act narrowed students' ability to force public schools to pay private-school tuition, those amendments did not completely …

April 26, 2009: Religious Revival?, Bruce Ledewitz

Hallowed Secularism

Blog post, “Religious Revival?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Ricci V. Destefano: “Fanning The Flames” Of Reverse Discrimination In Civil Service Selection, Lauren Klein

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

April 21, 2009: Why Do We Need Religion?, Bruce Ledewitz

Hallowed Secularism

Blog post, “Why Do We Need Religion?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Safford Unified School District No. 1 V. Redding: Balancing Students’ Rights Against The Governments Interest In Protecting The Educational Process, Chris Suedekum

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

April 17, 2009: America Is Not A Christian Nation, Bruce Ledewitz

Hallowed Secularism

Blog post, “America is not a Christian Nation“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Jurisdiction And Responsibility: Community And The Force Of Law Between Khadr And Amnesty, Craig M. Scott

All Papers

No abstract provided.

April 16, 2009: What Can The Courts Do About Gay Marriage?, Bruce Ledewitz

Hallowed Secularism

Blog post, “What Can the Courts Do About Gay Marriage?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Ashcroft V. Iqbal: The Question Of A Heightened Standard Of Pleading In Qualified Immunity Cases, Michelle Spiegel

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

Constitutional Law And International Law: National Exceptionalism And The Democratic Deficit?, Georgetown University Law Center

Philip A. Hart Memorial Lecture

On April 16 2009, Former Justice of the High Court of Australia, the Honourable Michael Kiryby delivered the Georgetown Law Center’s twenty-ninth annual Philip A. Hart Lecture: “ Constitutional Law and International Law: National Exceptionalism and the Democratic Deficit?”

When he retired from the High Court of Australia on February 2, 2009, Michael Kirby was Australia’s longest serving judge.

He was first appointed in 1975 as a Deputy President of the Australian Conciliation & Arbitration Commission. Soon after, he was seconded as inaugural Chairman of the Australian Law Reform Commission (1975-84). Later, he was appointed a judge of the Federal …