Constitutional Law Commons^™

Dangerous People Or Dangerous Weapons: Access To Firearms For Persons With Mental Illness, Lawrence O. Gostin, Katherine L. Record

Georgetown Law Faculty Publications and Other Works

The recent attempted assassination of Rep. Gabrielle Giffords has once again focused the nation’s attention on the danger of the wide availability of firearms.  The Supreme Court has ruled that gun restrictions may only be imposed on those deemed “prohibited persons” under the Gun Control Act of 1968.  Although some are easily identifiable (e.g., children, convicted felons), one widely inclusive group is not – the mentally ill.

The current system designed to bar the mentally ill from purchasing or possessing firearms is ineffectual due to a lack of reporting and the existence of loopholes.  What’s more, no state has developed …

Smith In Theory And Practice, Nelson Tebbe

Cornell Law Faculty Publications

Employment Division v. Smith controversially held that general laws that were neutral toward religion would no longer be presumptively invalid, regardless of how much they incidentally burdened religious practices. That decision sparked a debate that continues today, twenty years later. This symposium Essay explores the argument that subsequent courts have in fact been less constrained by the principal rule of Smith than advocates on both sides of the controversy usually assume. Lower courts administering real world disputes often find they have all the room they need to grant relief from general laws, given exceptions written into the decision itself and …

The Unconstitutionality Of The Filibuster, Josh Chafetz

Cornell Law Faculty Publications

This Article, written for the Connecticut Law Review's 2010 "Is Our Constitutional Order Broken?" symposium, argues that the filibuster, as currently practiced, is unconstitutional.

After a brief introduction in Part I, Part II describes the current operation of the filibuster. Although the filibuster is often discussed in terms of "unlimited debate," this Part argues that its current operation is best understood in terms of a sixty-vote requirement to pass most bills and other measures through the Senate.

Part III presents a structural argument that this supermajority requirement for most Senate business is unconstitutional. This Part argues that the words "passed" …

The Viability Of Certification In Federal Appellate Procedure, Kevin G. Crennan

William & Mary Law Review

No abstract provided.

Foreign Law As Legislative Fact In Constitutional Cases, A. Christopher Bryant

BYU Law Review

No abstract provided.

The First Amendment In Trans-Border Perspective: Toward A More Cosmopolitan Orientation, Timothy Zick

Faculty Publications

This Article examines the First Amendment’s critical trans-border dimension—its application to speech, association, press, and religious activities that cross or occur beyond territorial borders. Judicial and scholarly analysis of this aspect of the First Amendment has been limited, at least as compared to consideration of more domestic or purely local concerns. This Article identifies two basic orientations with respect to the First Amendment—the provincial and the cosmopolitan. The provincial orientation, which is the traditional account, generally views the First Amendment rather narrowly—i.e., as a collection of local liberties or a set of limitations on domestic governance. First Amendment provincialism does …

Password Protected? Can A Password Save Your Cell Phone From A Search Incident To Arrest?, Adam M. Gershowitz

Faculty Publications

Over the last few years, dozens of courts have authorized police to conduct warrantless searches of cell phones when arresting individuals. Under the “search incident to arrest” doctrine, police are free to search text messages, call histories, photos, voicemails, and a host of other data if they arrest an individual and remove a cell phone from his pocket. Given that courts have offered little protection against cell-phone searches, this Article explores whether individuals can protect themselves by password protecting their phones. The Article concludes, unfortunately, that password protecting a cell phone offers minimal legal protection when an individual is lawfully …

The Religion Clauses As Mutually Reinforcing Mandates: Why The Arguments For Rigorously Enforcing The Free Exercise Clause And Establishment Clause Are Stronger When Both Clauses Are Taken Seriously, Alan Brownstein

Cardozo Law Review

No abstract provided.

Smith In Theory And Practice, Nelson Tebbe

Cardozo Law Review

Employment Division v. Smith controversially held that general laws that were neutral toward religion would no longer be presumptively invalid, regardless of how much they incidentally burdened religious practices. That decision sparked a debate that continues today, twenty years later. This symposium Essay explores the argument that subsequent courts have in fact been less constrained by the principal rule of Smith than advocates on both sides of the controversy usually assume. Lower courts administering real world disputes often find they have all the room they need to grant relief from general laws, given exceptions written into the decision itself and …

Employment Division V. Smith: "The Sky That Didn't Fall", David B. Frohnmayer

Cardozo Law Review

No abstract provided.

The Good, The Bad, And The Ugly Of Employment Division V. Smith For Family Law, James G. Dwyer

Cardozo Law Review

No abstract provided.

Religious Use Of Copyrighted Works After Smith, Rfra, And Eldred, Steven D. Jamar

Cardozo Law Review

No abstract provided.

The Politics Of Free Exercise After Employment Division V. Smith: Same-Sex Marriage, The "War On Terror," And Religious Freedom, Richard Schragger

Cardozo Law Review

No abstract provided.

The Political (And Other) Safeguards Of Religious Freedom, Richard W. Garnett

Cardozo Law Review

No abstract provided.

The Democratic Constitutional State Of Indonesia, Pan Mohammad Faiz

Indonesia Law Review

The political reform in Indonesia started in 1998 when President Soeharto was forced to resign from his presidential office after 32 years in power. This momentum has transformed Indonesian political culture from an authoritarian state to the third largest democracy in the world after India and United States. It also led to Indonesian constitutional reform which was marked by the amendments of 1945 Constitution for the first time in 1999.

April 29, 2011: Courageous Senator Bob Casey, Bruce Ledewitz

Hallowed Secularism

Blog post, “Courageous Senator Bob Casey“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Summary Of Donlan V. Nevada, 127 Nev. Adv. Op. No. 12, Tim Mott

Nevada Supreme Court Summaries

An appeal from a district court order denying a petition to terminate appellant’s duty to register as a sex offender.

April 24, 2011: Why The Resurrection Changes Everything, Bruce Ledewitz

Hallowed Secularism

Blog post, “Why the Resurrection Changes Everything“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

April 22, 2011: Conservative Christians Discover The Separation Of Church And State, Bruce Ledewitz

Hallowed Secularism

Blog post, “Conservative Christians Discover the Separation of Church and State“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

O.P.P.: How "Occupy's" Race-Based Privilege May Improve Fourth Amendment Jurisprudence For All, Lenese C. Herbert

Seattle University Law Review

This Article submits that Occupy’s race problem could, ironically, prove to be a solution if protesters grow more serious about exposing the injury of political subordination and systems of privilege that adhere to the criminal justice system. Privilege is a “systemic conferral of benefit and advantage [as a result of] affiliation, conscious or not and chosen or not, to the dominant side of a power system.” Accordingly, now that police mistreatment affects them personally, Occupy may finally help kill a fictitious Fourth Amendment jurisprudence that ignores oppression through improper policing based on racial stigma. Occupy may also help usher in …

Slavery Revisited In Penal Plantation Labor, Andrea C. Armstrong

Seattle University Law Review

This Article argues that society must critically examine the types of labor we require our inmates to perform and prohibit the imposition of slavery, even when the enslaved is an inmate. Part II focuses on the text and history of Section 1 of the Thirteenth Amendment11 and argues that the Amendment’s exception allowing forced inmate labor is not as broad as it first appears. Part III examines the Eighth Amendment and how the imposition of slave status on inmates should be considered cruel and unusual punishment. Lastly, Part IV applies these concepts to the history and operation of one such …

April 18, 2011: Church, State, And The Crisis In American Secularism Video Comes To Youtube, Bruce Ledewitz

Hallowed Secularism

Blog post, “Church, State, and the Crisis in American Secularism Video Comes to YouTube“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

April 16, 2011: The Importance Of Objective Morality, Bruce Ledewitz

Hallowed Secularism

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

Jurisprudence Of A Fledgling Federation: A Critical Analysis Of Pakistan’S Judicial View On Federalism, Umer Akram Chaudhry

Cornell Law School Inter-University Graduate Student Conference Papers

Although the impediments in development of federation in Pakistan can be explored from different facets, this paper aims to critically analyze the constitutional history and judicial interpretation of federalism in Pakistan against the scholarly and conceptual debates over the idea. The paper argues that Pakistan’s judiciary, despite recognizing federalism as cornerstone of the Constitution, has not upheld the principle as strongly as other salient features of the Constitution. The superior judiciary has strengthened the official discourse of a unitary national identity leaving little room for ethnical pluralism and participatory nationalism. The paper shall also review measures introduced by the recent …

Can Popular Constitutionalism Survive The Tea Party Movement?, Jared A. Goldstein

NULR Online

The sudden emergence and prominence of the Tea Party movement raises important questions about the role of the Constitution in popular politics. More than any political movement in recent memory, the Tea Party movement is centrally focused on the meaning of the Constitution. Tea Party supporters believe that the nation is facing a crisis because it has abandoned the Constitution, and they seek to restore the government to what they believe are its foundational principles.

April 13, 2011: John Rawls’ Juvenile Conception Of God, Bruce Ledewitz

Hallowed Secularism

Blog post, “John Rawls’ Juvenile Conception of God“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

April 10, 2011: Islam, Judaism, And The Murder Of Children, Bruce Ledewitz

Hallowed Secularism

Blog post, “Islam, Judaism, and the Murder of Children“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

April 9, 2011: Mixing Church And State, Bruce Ledewitz

Hallowed Secularism

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

Conference Program

CYBERBULLYING: Policy, Prevention and Intervention (2011)

No abstract provided.

Bar-On V. Knesset, Dorit Beinisch, Elyakim Rubinstein, Miriam Naor, Uzi Vogelman, Edna Arbel, Eliezer Rivlin, Asher Grunis

Translated Opinions

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

Is it possible to circumvent a constitutional principle enshrined in a temporary provision set to remain in effect only for the duration of the current government’s administration term?

Background: on June 22, 2010 Basic Law: The State Budget (Special Provisions) (Temporary Provisions) (Amendment) (hereinafter: “Basic Law Temporary Provision” or “the Law”) was passed to set the budget for years 2011 and 2012, as a …