Constitutional Law Commons^™

Salazar V. Buono: Sacred Symbolism And The Secular State, Ian Bartrum

NULR Online

After oral argument, Salazar v. Buono looked like it might be a dud. As Adam Liptak observed in the New York Times, the Justices spent most of their energy pressing then-Solicitor General Elena Kagan and her opponent, Peter Eliasberg of the ACLU, on the case’s tangled procedural history, and “only Justice Antonin Scalia appeared inclined to reach the Establishment Clause question” that gave rise to the legal controversy. But, in the intervening months, the case has gotten more and more interesting. First, most members of the Court did—in at least some way—reach the substantive merits in the decision; …

September 1, 2010: Is Eat Pray Love Religious?, Bruce Ledewitz

Hallowed Secularism

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

A Parent's Choice V. Governmental Regulations: A Bioethical Analysis In An Era Of Preimplantation Genetic Diagnosis, Michael Gortakowski

Buffalo Public Interest Law Journal

No abstract provided.

Kids Are Different, Stephen St.Vincent

Michigan Law Review First Impressions

The Supreme Court recently handed down its decision in Graham v. Florida. The case involved a juvenile, Graham, who was sentenced to life in prison after being convicted as an adult of a nonhomicidal crime. The offense, a home invasion robbery, was his second; the first was attempted robbery. Due to Florida's abolition of parole, the judge's imposition of a life sentence meant that Graham was constructively sentenced to life without parole for a nonhomicide crime. Graham challenged this sentence as unconstitutional under the Eighth Amendment. Somewhat surprisingly, the Supreme Court invalidated Graham's sentence by a 6-3 majority. By a …

Commerce In The Commerce Clause: A Response To Jack Balkin, Robert G. Natelson

Michigan Law Review First Impressions

The Constitution's original meaning is its meaning to those ratifying the document during a discrete time period: from its adoption by the Constitutional Convention in late 1787 until Rhode Island's ratification on May 29, 1790. Reconstructing it requires historical skills, including a comprehensive approach to sources. Jack Balkin's article Commerce fails to consider the full range of evidence and thereby attributes to the Constitution's Commerce Clause a scope that virtually no one in the Founding Era believed it had.

Overcoming Defiance Of The Constitution: The Need For A Federal Role In Protecting The Right To Counsel In Georgia, Stephen B. Bright, Lauren Sudeall Lucas

Faculty Publications By Year

In their issue brief, Mr. Bright and Ms. Lucas discuss the problems that have existed in Georgia’s indigent defense system since Gideon was handed down. They contend that “[a]ll three branches of Georgia’s government have failed in their constitutional responsibility to ensure that poor people accused of crimes are effectively represented by competent lawyers.” They also argue that “[t]he federal government, which has made immense contributions to the prosecution of criminal cases in Georgia through grants to law enforcement, prosecutors, and courts, shares responsibility for the integrity of Georgia’s criminal justice system and the enforcement of the constitutional right to …

Physical-Strength Rationales For De Jure Exclusion Of Women From Military Combat Positions, Maia Goodell

Seattle University Law Review

Women have been serving in the military in steadily increasing numbers for decades. Nevertheless, the military remains one of the few areas in which the U.S. government decides what roles are open to women based on de jure exclusions. This Article examines the law governing de jure classification, noting that a mere normative belief about women’s proper place in society is an insufficient basis to justify a sex-based exclusion. It then probes the most common rationale advanced in support of the continued de jure exclusion of women: physical strength. The Article examines four problems with the physical strength rationale: (1) …

The Cross-Dressing Case For Bathroom Equality, Jennifer Levi, Daniel Redman

Seattle University Law Review

While transgender rights advocates have won many battles in the fight for equality, bathroom discrimination remains a significant obstacle to transgender people’s full participation in society. This Article discusses the reasoning behind the cases that have rejected transgender people’s discrimination claims based on bathroom exclusion. The Article then demonstrates how these arguments mirror the rationales offered by supporters of long-dead, unconstitutional cross-dressing laws. Synthesizing the two bodies of case law, Levi and Redman offer a new way forward for transgender advocates seeking bathroom equality.

Fait Accompli?: Where The Supreme Court And Equal Pay Meet A Narrow Legislative Override Under The Lilly Ledbetter Fair Pay Act, Megan Coluccio

Seattle University Law Review

This Comment argues the Lilly Ledbetter Fair Pay Act’s consequences will be minimally felt, so long as the Act is narrowly construed. The Comment suggests congressional action was appropriate after the Supreme Court’s Ledbetter decision and discusses the political and legislative debate leading to the Act. In addition, the Comment analyzes the Act in application, exploring its meaning, implications, and function. The Comment argues that the concerns and consequences arising from the enactment of the Act can be alleviated and avoided by a narrow interpretation of its amendment to Title VII of the Civil Rights Act. Finally, the Comment recommends …

August 29, 2010: Glen Beck’S Restoring Honor Rally, Bruce Ledewitz

Hallowed Secularism

Blog post, “ Glen Beck’s Restoring Honor Rally“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

August 26, 2010: Arguments About The Existence Of, Or Consequences Of The Nonexistence Of, God Go Nowhere, Bruce Ledewitz

Hallowed Secularism

Blog post, “Arguments about the Existence of, or Consequences of the Nonexistence of, God Go Nowhere“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

August 22, 2010: Imposing Shariah, Bruce Ledewitz

Hallowed Secularism

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

The Nebraska State Constitution: A Reference Guide (2d Ed.), On-Line Update, Anthony B. Schutz

Nebraska State Constitution

State of Nebraska Constitution

August 17, 2010: If Peru, Why Not The Land Of Israel?, Bruce Ledewitz

Hallowed Secularism

Blog post, “If Peru, Why Not the Land of Israel?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

August 14, 2010: The Sick Tragedy Of The Anti-Mosque Movement, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Sick Tragedy of the anti-Mosque Movement“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

August 12, 2010: The Death Of Christopher Hitchens, Bruce Ledewitz

Hallowed Secularism

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

August 8, 2010: You Can’T Defeat Islam, Bruce Ledewitz

Hallowed Secularism

Blog post, “You Can’t Defeat Islam“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

August 6, 2010: The Lessons Of Peru, Bruce Ledewitz

Hallowed Secularism

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

Stepping Out Of The Vehicle: The Potential Of Arizona V. Gant To End Automatic Searches Incident To Arrest Beyond The Vehicular Context, Angad Singh

Celebrating WCL Student Authors

“Because the law says we can do it” was the response Officer Griffith offered when asked why officers searched Rodney Gant’s car when he was arrested for driving with a suspended license. Officer Griffith’s honest answer exemplifies the effect of prior Supreme Court decisions on search incident to arrest power in the vehicle context: that a vehicle search incident to arrest is a police entitlement divorced from any rationale whatsoever. Concerns for officer safety and preservation of evidence -- legal justifications that generally permit warrantless searches incident to arrest generally -- had been utterly abandoned by the Court in the …

Expanding The Scope Of The Good-Faith Exception To The Exclusionary Rule To Include A Law Enforcement Officer's Reasonable Reliance On Well-Settled Case Law That Is Subsequently Overruled, Ross Oklewicz

Celebrating WCL Student Authors

In 2009, the Supreme Court handed down several important decisions on criminal procedure. Perhaps unanticipated at the time, two of those decisions have been read together by lower courts to reach dramatically different results. The emerging split has been sharp, bringing with it urgent calls for the Court to intervene.

Laying the foundation for the conflicting decisions was New York v. Belton, in which the Supreme Court held that “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of the automobile” …

Summary Of Carrigan V. Comm. On Ethics, 129 Nev. Adv. Op. 95, Edward Wynder

Nevada Supreme Court Summaries

Appeal from a district court order denying a petition for judicial review from a decision of the Nevada Commission on Ethics, determining whether the censure of an elected public officer for alleged voting violations under NRS 281A.420(2)(c) violates the First Amendment.

July 24, 2010: There Will Be A Vacation Break In Hallowed Secularism Until 8/5/2010, Bruce Ledewitz

Hallowed Secularism

Blog post, “ There will be a vacation break in Hallowed Secularism until 8/5/2010“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

July 22, 2010: Can Religious Believers Be Good Democratic Citizens?, Bruce Ledewitz

Hallowed Secularism

Blog post, “Can Religious Believers Be Good Democratic Citizens?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Procreation, Harm, And The Constitution, Carter Dillard

NULR Online

This Essay provides relatively novel answers to two related questions: First, are there moral reasons to limit the sorts of existences it is permissible to bring people into, such that one would be morally prohibited from procreating in certain circumstances? Second, can the state justify a legal prohibition on procreation in those circumstances using that moral reasoning, so that the law would likely be constitutional?

These questions are not new, but my answers to them are and add to the existing literature in several ways. First, I offer a possible resolution to a recent debate among legal scholars regarding what …

July 18, 2010: Is Human Life A Tragedy?, Bruce Ledewitz

Hallowed Secularism

Blog post, “Is Human Life a Tragedy?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

July 14, 2010: The Apostate, Bruce Ledewitz

Hallowed Secularism

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

July 11, 2010: The Power Of Religion, Bruce Ledewitz

Hallowed Secularism

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

Criminal Practice Developments In Maryland Evidence Law And Confrontation Clause Jurisprudence, Lynn Mclain

All Faculty Scholarship

This paper was prepared as a handout for a presentation given on July 9th., 2010 to staff at the Harford County Public Defender’s Office, Bel Air, MD. The specific sections of the paper are: Discovery of Witnesses’ Identities: Protective Orders; Jury Selection; Communications from Jurors; Preservation of the Record: Rules 4-323, 5-103, and 5-702; Judicial Notice: Rule 5-201; Balancing Risk of Unfair Prejudice and Confusion against Probative Value: Rule 5-403; Character Evidence; Fifth Amendment Privilege: Miranda; Competency of Witnesses: Rule 5-601; Impeachment by Prior Convictions: Rule 5-609; Questioning by Court: Rule 5-614; Expert Testimony: Rules 5-702 – 5-706; Hearsay; The …

July 8, 2010: Seeking “Common Ground”: A Secular Statement, Bruce Ledewitz

Hallowed Secularism

Blog post, “Seeking “Common Ground”: A Secular Statement“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

July 4, 2010: Happy Fourth Of July, Bruce Ledewitz

Hallowed Secularism

Blog post, “Happy Fourth of July“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.