Constitutional Law Commons^™

Ely At The Altar: Political Process Theory Through The Lens Of The Marriage Debate, Jane S. Schacter

Michigan Law Review

Political process theory, closely associated with the work of John Hart Ely and footnote four in United States v. Carolene Products, has long been a staple of constitutional law and theory. It is best known for the idea that courts may legitimately reject the decisions of a majority when the democratic process that produced the decision was unfair to a disadvantaged social group. This Article analyzes political process theory through the lens of the contemporary debate over same-sex marriage. Its analysis is grounded in state supreme court decisions on the constitutionality of barring same-sex marriage, as well as the high-profile, …

May 30, 2011: Happy Memorial Day, Bruce Ledewitz

Hallowed Secularism

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

Mcdonald's Other Right, Samuel L. Wiseman

Scholarly Publications

No abstract provided.

May 27, 2011: Time To Rethink Public School Prayer, Bruce Ledewitz

Hallowed Secularism

Blog post, “Time to Rethink Public School Prayer“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

It’S Time To Reconsider Graduation Prayer In Public High Schools, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.

Summary Of Clean Water Coal. V. The M Resort, 127 Nev. Adv. Op. No. 24, Marissa Pensabene

Nevada Supreme Court Summaries

An appeal from a district court’s judgment that declared Assembly Bill 6 (“A.B. 6”), section 18, constitutional under the Nevada Constitution.

How Should Elected Judges Interpret Statutes?, Aaron-Andrew P. Bruhl

Popular Media

No abstract provided.

May 24, 2011: What Exactly Happened Today When Netanyahu Addressed Congress?, Bruce Ledewitz

Hallowed Secularism

Blog post, “What Exactly Happened Today When Netanyahu Addressed Congress?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

State Law Holocaust-Era Art Claims And Federal Executive Power, Jennifer Anglim Kreder

NULR Online

No abstract provided.

May 21, 2011: Emanuel David, Bruce Ledewitz

Hallowed Secularism

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

May 18, 2011: All Things Shining, Bruce Ledewitz

Hallowed Secularism

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

May 15, 2011: More On Torture, Bruce Ledewitz

Hallowed Secularism

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

May 11, 2011: Still Restricting What Religious People Are Allowed To Say, Bruce Ledewitz

Hallowed Secularism

Blog post, “Still Restricting What Religious People Are Allowed to Say“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

May 11, 2011: Still Restricting What Religious People Are Allowed To Say, Bruce Ledewitz

Hallowed Secularism

Blog post, “Still Restricting What Religious People Are Allowed to Say“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

May 8, 2011: Torture Works, Bruce Ledewitz

Hallowed Secularism

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

Atkins V. Virginia: National Consensus Or Six-Person Opinion?, Joanna Hall

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Injunction Junction: Enjoining Free Speech After Madsen, Schenck, And Hill, Tiffany Keast

American University Journal of Gender, Social Policy & the Law

No abstract provided.

May 3, 2011: The Military Killed The Man Responsible For The Sneak Attack On America, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Military Killed the Man Responsible for the Sneak Attack on America“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Obama's Failed Attempt To Close Gitmo: Why Executive Orders Can't Bring About Systemic Change, Erin B. Corcoran

Law Faculty Scholarship

No abstract provided.

May 1, 2011: Religion, Guns And Racism, Bruce Ledewitz

Hallowed Secularism

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

Judicial Reform, Constitutionalism And The Rule Of Law In Zambia: From A Justice System To A Just System, Muna Ndulo

Zambia Social Science Journal

In Zambia it is generally agreed on by all stakeholders that the judicial system needs reform to make it more accountable, independent, and able to deliver justice efficiently and effectively. This article discusses judicial reform in the context of the independence of the judiciary. It tries to unpack the term judicial reform. It argues that for the rule of law and constitutionalism to prevail it is crucial that the judiciary is independent and there is separation of powers between the executive and the judiciary, and legislature and the judiciary. For judges to be personally and substantively independent they need security …

A Machine Made Of Words: Our Incompletely Theorized Constitution, Gregory Brazeal

The University of New Hampshire Law Review

[Excerpt]”Many scholars have observed that the Constitution of the United States can be understood as an example of what Cass Sunstein calls an “incompletely theorized agreement.” The Constitution contains a number of extremely general terms, such as “liberty,” “necessary and proper,” and “due process.” The Framers of the Constitution, it is suggested, did not attempt to specify precisely how each of these principles would operate in every case. On this view, the Constitution is incompletely theorized in the sense of representing “a comfortable and even emphatic agreement on a general principle, accompanied by sharp disagreement about particular cases.” For example, …

History Repeats Itself: The Post-Furman Return To Arbitrariness In Capital Punishment, Lindsey S. Vann

University of Richmond Law Review

Part I of this comment provides a brief review of Furmanandthe circumstances leading to the decision. Part II discusses thefactors indicating current arbitrariness and other recurring factors surrounding the American death penalty. Part III examines the development of the Cruel and Unusual Punishments Clause since Furman. Finally, Part IV discusses how the Supreme Court should apply its contemporary Eighth Amendment doctrine to the current circumstances surrounding the imposition of the death penalty.

How Elevation Of Corporate Free Speech Rights Affects Legality Of Network Neutrality, Barbara A. Cherry

Federal Communications Law Journal

In Citizens United v. Federal Election Commission (2010), the U.S. Supreme Court overruled a century of precedent to hold that corporations must be treated identically to natural persons with regard to political speech. This Article describes how the Court's decision is a radical departure from history that mirrors the FCC's flawed analysis in its classification of broadband Internet access services as an information service with no separable telecommunications component subject to common carriage regulation. Overall, the combinatorial effect of Citizens United and the FCC's classification of broadband access service as an information service is to elevate the constitutional free speech …

The Roberts Court And Freedom Of Speech, Erwin Chemerinsky

Federal Communications Law Journal

This is an edited version of a speech delivered on December 16, 2010 in Washington, D.C., as part of the Federal Communications Bar Association's Distinguished Speaker Series.

This speech was given by Dean Erwin Chemerinsky in December 2010 as part of the FCBA's Distinguished Speaker Series. In the speech, Dean Chemerinsky offers his perspectives on and analysis of the Supreme Court's position on freedom of speech in recent years. He highlights important recent freedom of speech decisions made by the Roberts Court, and gives some projections as to where the court is heading in the years to come, given its …

International Media Law Reform And First Amendment Agnosticism: Review Of Lee Bollinger’S Uninhibited, Robust, And Wide-Open: A Free Press For A New Century, Enrique Armijo

Federal Communications Law Journal

Lee Bollinger's Uninhibited, Robust, and Wide-Open argues that in an increasingly globalized world, the United States must seek to export First Amendment free press principles to other countries. His project, however, is belied by the fact that media law is a product of context and history as much as legalism. His proposals for reconceptualizing our own animating vision for a free press here in the States are also in many important respects inconsistent with the First Amendment itself.

Wikileaks Would Not Qualify To Claim Federal Reporter’S Privilege In Any Form, Jonathan Peters

Federal Communications Law Journal

This Article addresses whether WikiLeaks could claim a federal reporter's privilege if the U.S. government or a U.S. entity tried to compel one of the site's staff members to disclose the source(s) of any documents it has released. After exploring the origins of the First Amendment-based privilege, the Author argues that WikiLeaks would not be able to claim it. First, the website does not engage in investigative reporting. Second, it has not taken steps consistently to minimize harm. He also discusses congressional attempts to pass a federal shield law, paying special attention to H.R. 985 and S. 448, the two …

Religious Truth, Pluralism, And Secularization: The Shaking Foundations Of American Religious Liberty, Daniel O. Conkle

Articles by Maurer Faculty

In this Essay, I recount John Locke’s 1689 Letter Concerning Toleration and explain how religious liberty continues to rest on Lockean and related justifications. These various justifications depend in part on religious-moral reasoning (both Christian and non-Christian) and in part on political-pragmatic considerations. I then discuss recent and ongoing developments in the American religious landscape, including a radical increase in religious diversity, the modernization of traditional faiths, the individualization or "spiritualization" of religion, and the increasing secularization of individual belief structures. I suggest that these developments, over time, may seriously threaten the underlying religious-moral and political-pragmatic foundations of religious liberty …

Reasoning About The Irrational: The Roberts Court And The Future Of Constitutional Law, H. Jefferson Powell

Washington Law Review

Commentary on the future direction of the Roberts Court generally falls along lines that correlate with the commentators’ political views on the desirability of the Court’s recent decisions. A more informative approach is to look for opinions suggesting changes in the presuppositions with which the Justices approach constitutional decision making. In footnote 27 in his opinion for the Court in the District of Columbia v. Heller Second Amendment decision, Justice Scalia suggested a fundamental revision of the Court’s assumptions about the role of judicial doctrine, and the concept of rationality, in constitutional law. Justice Scalia would eliminate the normative aspects …

Finding Equilibrium: Exploring Due Process Violations In The Whistleblower Provisions Of The Fraud Enforecement And Recovery Act Of 2009, Laura Hough

William & Mary Bill of Rights Journal

No abstract provided.