Constitutional Law Commons^™

39th Congress (1865-1867) And The 14th Amendment: Some Preliminary Perspectives, Richard Aynes

Akron Law Faculty Publications

The 39th Congress (1865-1867) was one of the important Congresses in our history. It passed more legislation than any other Congress up to that time.

This preliminary examination of the 39th Congress begins with a look it composition. One of the critical factors was that while the 38th Congress contained a majority of unionists, the 39th Congress contained a super-majority which meant not only that they could override a Presidential veto, but also that they did not need to take the Democratic opposition seriously. This article also identifies the leadership of the 39th Congress. The 38th Congress was composed of …

Medical Hope, Legal Pitfalls: Potential Legal Issues In The Emerging Field Of Oncofertility, Gregory Dolin, Dorothy E. Roberts, Lina M. Rodriguez, Teresa K. Woodruff

All Faculty Scholarship

The article will begin its discussion by identifying the values at stake in the field of oncofertility. These values include the constitutional protection of the rights of women and minors to bear children and to use reproduction-assisting technologies, as well as the feminist critique of gendered expectations that may pressure women to use these technologies.

Part III will focus on the medical options of oncofertility. It will also discuss some conditions that may lead otherwise fertile and young patients to lose their ability to bear children as a side-effect of necessary medical treatment. The article will then proceed to discuss …

Making Sense Of Schaumburg: Seeking Coherence In First Amendment Charitable Solicitation Law, John D. Inazu

Faculty Scholarship

The Supreme Court shaped its approach to charitable solicitation in a trilogy of cases in the 1980s: Schaumburg v. Citizens for a Better Environment (1980), Secretary of State of Maryland v. Joseph H. Munson Co. (1984), and Riley v. National Federation of the Blind of North Carolina (1988). Owing largely to ambiguity surrounding the concepts of content analysis, tiered scrutiny, and commercial speech emerging during that era, the Court failed to articulate a coherent framework for evaluating regulations of charitable solicitation. The result has left the Court without a clear understanding of the value of charitable solicitation. It has also …

‘The Federalist’ Abroad In The World, Donald L. Horowitz

Faculty Scholarship

This paper traces the influence of The Federalist Papers on five continents. From 1787 to roughly 1850, The Federalist was widely read and highly influential, especially in Europe and Latin America. Federalist justifications for federalism as a solution to the problem of creating a continental republic or to provincial rivalries were widely accepted. So, too, was the presidency, at least in Latin America, and that region adopted judicial review later in the nineteenth century. Presidentialism and judicial review fared less well in Western Europe. Following World War II, judicial review slowly became part of the standard equipment of new and …

Presidential Popular Constitutionalism, Jedediah Purdy

Faculty Scholarship

This Article adds a new dimension to the most important and influential strand of recent constitutional theory: popular or democratic constitutionalism, the investigation into how the U.S. Constitution is interpreted (1) as a set of defining national commitments and practices, not necessarily anchored in the text of the document, and (2) by citizens and elected politicians outside the judiciary. Wide-ranging and groundbreaking scholarship in this area has neglected the role of the President as a popular constitutional interpreter, articulating and revising normative accounts of the nation that interact dynamically with citizens’ constitutional understandings. This Article sets out a “grammar” of …

Historical Practice And The Contemporary Debate Over Customary International Law, Ernest A. Young

Faculty Scholarship

Response to: Anthony J. Bellia, Jr. & Bradford R. Clark, The Federal Common Law of Nations, 109 Colum. L. Rev. 1 (2009).

A.J. Bellia and Brad Clark have performed a valuable service for other scholars interested in foreign relations law and federal jurisdiction by collecting and illuminating—with their usual care and insight—the historical practice of both English and early American courts with respect to the law of nations. Their recent Article, The Federal Common Law of Nations, demonstrates that, while American courts have not generally treated customary international law (CIL) as supreme federal law, they have applied such law where …

Full Faith And Credit In The Early Congress, Stephen E. Sachs

Faculty Scholarship

After more than 200 years, the Full Faith and Credit Clause remains poorly understood. The Clause first issues a self-executing command (that "Full Faith and Credit shall be given"), and then empowers Congress to prescribe the manner of proof and the "Effect" of state records in other states. But if states must accord each other full faith and credit-and if nothing could be more than full-then what "Effect" could Congress give state records that they wouldn't have already? And conversely, how could Congress in any way reduce or alter the faith and credit that is due?

This Article seeks to …

Heller’S Problematic Second Amendment Categoricalism, Joseph Blocher

Faculty Scholarship

No abstract provided.

Cruel And Unequal Punishment, Nita A. Farahany

Faculty Scholarship

This article argues Atkins and its progeny of categorical exemptions to the death penalty create and new and as of yet undiscovered interaction between the Eighth and the Fourteenth Amendment of the U.S. Constitution. The United States Supreme Court, the legal academy and commentators have failed to consider the relationship between the Cruel and Unusual Punishments Clause and the Equal Protection Clause that the Court's new Eighth Amendment jurisprudence demands. This article puts forth a new synthesis of these two clauses, and demonstrates how the Court's new Eighth Amendment jurisprudence has remarkable Fourteenth Amendment implications. To see the point in …

The Unbearable Lightness Of Marriage In The Abortion Decisions Of The Supreme Court: Altered States In Constitutional Law, William W. Van Alstyne

Faculty Scholarship

No abstract provided.

Property And Speech In ‘Summum’, Joseph Blocher

Faculty Scholarship

No abstract provided.

The Constitutional Status Of Morals Legislation, John Lawrence Hill

Kentucky Law Journal

No abstract provided.

Using Article Iv Of The Illinois Constitution To Attack Legislation Passed By The General Assembly, Michael J. Kasper

Loyola University Chicago Law Journal

No abstract provided.

Symposium: Oiling The Schoolhouse Gate: After Forty Years Of Tinkering With Teachers' First Amendment Rights, Time For A New Beginning , Alexander Wohl

American University Law Review

This Article will examine how (and how far) we have fallen from the legal precedent and educational principles behind Tinker, specifically the increasingly remote standards courts have used to chip away (and sometimes sledgehammer) the speech rights of teachers. To this end, the Article will consider some of the unique and fundamental characteristics associated with a profession that has at its core the mission of encouraging speech, raising questions, and teaching the ability to think—in short, “expressive activities.” It will also look at how the increasingly restrictive standards do not reflect fully the challenges posed by the advent of new …

Medellin And Originalism , D.A. Jeremy Telman

Maryland Law Review

No abstract provided.

Baze V. Rees: Merging Eighth Amendment Precedents Into A New Standard For Method Of Execution Challenges, Molly E. Grace

Maryland Law Review

No abstract provided.

Federal Powers And The Principle Of Subsidiarity., Daniel Halberstam

Book Chapters

Federal systems across the world are generally designed according to the principle of subsidiarity, which in one form or another holds that the central government should play only a supporting role in governance, acting if and only if the constituent units of government are incapable of acting on their own. The word itself is related to the idea of assistance, as in “subsidy,” and is derived from the Latin “subsidium,” which referred to auxiliary troops in the Roman military. See Oxford Latin Dictionary s.v. (1983).

Heller And Constitutional Interpretation: Originalism's Last Gasp, Rory K. Little

Faculty Scholarship

No abstract provided.

Circumventing Non-Appropriation: Law And Development Of United States Space Commerce, Nikhil D. Cooper

UC Law Constitutional Quarterly

International space-commerce is booming. Presently, a series of international treaties proscribe the United States from "appropriating" space. However, as future technologies enable more commercial uses for space, what is the status of present United States legislation governing space-commerce and how might such legislation conflict with existent United States treaty obligations? In answering this question, this Note argues that although there is an argument that space-commerce conducted within the United States might violate the spirit of international treaty obligations, it is unlikely that such tension rises to the level of an express conflict that would illegitimate current domestic space-commerce legislation.

Still, …

From The Protection Of Children Against Sexual Exploitation Act Of 1977 To The Adam Walsh Child Protection And Safety Act Of 2006: How Congress Went From Censoring Child Pornography To Censoring Protected Sexual Speech, Onki Kwan

UC Law Constitutional Quarterly

Congress first outlawed child pornography in the Protection of Children Against Sexual Exploitation Act of 1977. The statute was amended in 1984 because Congress found that the 1977 Act did not adequately protect children from sexual exploitation and abuse. In 1988, Congress introduced record-keeping requirements as codified in 18 U.S.C. § 2257 to supplement existing the 1984 statute. Since 1988, § 2257 has been amended several times, broadening in scope each time. Today, the statute is so broad that it infringes on constitutionally protected speech. As such, in Keisler v. Connection Distribution Company the Sixth Circuit held that § 2257 …

In Re Marriage Cases: The Fundamental Right To Marry And Equal Protection Under The California Constitution And The Effects Of Proposition 8, Richard Salas

UC Law Constitutional Quarterly

This issue of whether or not to legalize marriage for same-sex couples has been one of the most socially and legally visible issues of the past decade. The controversy surrounding the legalization of gay marriage will continue to be a hot-button political and social issue for at least a considerable length of time into the future. Marriage is mostly an institution governed by state laws, and, as the traditional definitions and limitations on marriage change, it will occur mostly on a state-by-state basis.

California has a history of leading the nation in social progression at the judicial and legislative level. …

The Supreme Court's New Public-Private Distinction Under The Dormant Commerce Clause: Avoiding The Traditional Versus Nontraditional Classification Trap, Bradford Mank

UC Law Constitutional Quarterly

In its 2007 decision United Haulers Association, Inc. v. Oneida-Herkimer Solid Waste Management Authority, the Supreme Court for the first time held the "dormant" Commerce Clause doctrine ("DCCD") allows for a distinction between appropriate laws establishing local government monopolies providing public services such as waste disposal, and inappropriate laws favoring the self-interest of in-state private businesses over out-of-state competition. In addition, the Court emphasized that courts should apply the DCCD more leniently in the area of waste disposal because it is a traditional local government function. In its 2008 decision Department of Revenue of Kentucky v. Davis, the Court reaffirmed …

The Domestic Violence Clause In New Originalist Theory, Mark S. Stein

UC Law Constitutional Quarterly

In this brief essay, I address the way in which "new originalists" Jack Balkin and Lawrence Solum use the Domestic Violence Clause in Article IV, Section 4 of the Constitution to support their theories. Balkin uses the Domestic Violence Clause to provide an example of an impermissible departure from original meaning: Surely, he claims, it would be wrong to interpret the constitutional term "domestic violence" as referring to spousal abuse. Solum uses the same example to support his thesis that the semantic meaning of the Constitution is fixed at the time of origin.

In fact, the constitutional term "domestic violence" …

A Radically Immodest Judicial Modesty: The End Of Facial Challenges To Abortion Regulations And The Future Of The Health Exception In The Roberts Era, B. Jessie Hill

Faculty Publications

If there is anything as strongly associated in the public mind with Chief Justice John Roberts as his black robe and judicial temperament, it is surely his claim to judicial modesty. And indeed, some commentators have suggested that there are signs of newfound judicial restraint in the Roberts Court. One example of this purported restraint is the Roberts Court’s expressed preference for narrower, as-applied decisionmaking in constitutional cases, as opposed to striking down statutes on their face. The Roberts Court has turned away facial challenges or otherwise expressed a preference for making decisions on an as-applied basis in a number …

Safford Unified School District No. 1 V. Redding, And The Future Of School Strip Searches, Lewis R. Katz

Faculty Publications

Each year in America an unknown number of children in primary and secondary schools are strip searched by teachers and/or school administrators, forced to remove pants and shirts down to their underwear and sometimes forced to expose their breasts and genitals. In Safford Unified School District No. 1 v. Redding, 129 S.Ct. 2633 (29), the Supreme Court weighed in on the issue, finding that school officials violated the child’s Fourth Amendment rights during a strip search but reversing the Ninth Circuit and awarding the school officials qualified immunity not withstanding the ineptitude of the investigation. The Court purported to apply …

Fixing Free Exercise: A Compelling Need To Relieve The Current Burdens, Eric D. Yordy

UC Law Constitutional Quarterly

Using the dispute between the native tribes of northern Arizona and the federal government regarding land controlled by the federal government, but held sacred by Native American tribes, this Article demonstrates how the U.S. Supreme Court's 1990 decision in Employment Division v. Smith and the subsequent activities of courts and legislative bodies disrupted free exercise jurisprudence and created a quagmire of confusion related to religious freedom. The Article looks briefly at the history of the Free Exercise clause in the courts, the evisceration of free exercise jurisprudence in Smith and the subsequent enactment of the Religious Freedom Restoration Act.

The …

The Myth Of Laissez-Faire Constitutionalism: Liberty Of Contract During The Lochner Era, David N. Mayer

UC Law Constitutional Quarterly

The Article examines the U.S. Supreme Court's protection of liberty of contract as a fundamental constitutional right during the forty-year period from 1897 until 1937, the so-called "Lochner era," named for the Court's best-known liberty-of-contract decision in 1905, Lochner v. New York. The Article shatters many myths about this era, particularly the notion that the Court was engaged in so-called "laissez-faire constitutionalism," which was derived from Justice Oliver Wendell Holmes's famous dissent in Lochner. Although Holmes's characterization of the majority's decision in Lochner as activist has shaped the orthodox view, both Holmes and the orthodox view are clearly wrong-unfair caricatures …

Web-Assisted Suicide And The First Amendment, Ellen Luu

UC Law Constitutional Quarterly

The proliferation of online social networking websites such as MySpace, Facebook, and message boards has introduced a new threat in the form of suicidepromoting cyber-speech. In countries such as the United States, Japan, and the United Kingdom, individuals have used these social networks to access advertisements for suicide partners, feedback on self-murder plans, and guides on how to commit suicide. In light of claims that this cyber-speech serves the legitimate purpose of providing an open forum for discussion on such topics, is such speech protected under the First Amendment?

While the Supreme Court has upheld the prohibition of assisted suicide, …

Just Not Who We Are: A Critique Of Common Law Constitutionalism, Andrew C. Spiropoulos

Villanova Law Review (1956 - )

No abstract provided.

Standing, Spending, And Separation: How The No-Establishment Rule Does (And Does Not) Protect Conscience, Richard W. Garnett

Villanova Law Review (1956 - )

No abstract provided.