Constitutional Law Commons^™

An In Depth Look At Gonzales V. Raich: The History Of Medical Marijuana And The Commerce Clause, Rory S. Baird

CMC Senior Theses

The Supreme Court case, Gonzales v. Raich (2005), ruled medical marijuana use, authorized by the State of California, was subject to federal prosecution and regulation under the interstate commerce clause.

Good Faith, Bad Faith And The Gulf Between: A Proposal For Consistent Terminology, Steve Coughlan

Articles, Book Chapters, & Popular Press

Since the earliest days of section 24(2) jurisprudence, the phrase “good faith” has been used. For nearly as long, it has been used inconsistently. The same is true, to a lesser extent, of the phrase “bad faith.” This article traces the confusion which arises in understanding and in reasoning from the failure to restrict these phrases to single meanings. The article then proposes particular meanings for each, which would limit their applicability to extreme situations at either end of the spectrum. It is proposed that the term “good faith” should only be used in circumstances where it settles that the …

Internet Access Rights: A Brief History And Intellectual Origins, Jonathon Penney

Articles, Book Chapters, & Popular Press

If there is anything we have learned from recent protest movements around the world, and the heavy-handed government efforts to block, censor, suspend, and manipulate Internet connectivity, it is that access to the Internet, and its content, is anything but certain, especially when governments feel threatened. Despite these hard truths, the notion that people have a "right" to Internet access gained high-profile international recognition last year. In a report to the United Nations General Assembly in early 2011, Frank La Rue, the UN Special Rapporteur on Freedom of Expression, held that Internet access should be recognized as a "human right". …

Sex Work By Law: Bedford's Impact On The Municipal Regulation Of Sex Work, Elaine Craig

Articles, Book Chapters, & Popular Press

The recent Ontario trial decision in Bedford suggests three interrelated principles that municipal law makers should consider when formulating bylaws aimed at regulating sex work. These principles, if upheld on appeal, will inform the constitutionality of both current and prospective bylaws regulating sex work in Canadian cities.

In Bedford, Justice Himel concluded that the constitutionality of laws regulating the sex trade must be determined in a legal context which recognizes the violence faced by sex workers. She confirmed that laws that indirectly make sex work more dangerous and harmful must be consistent with those principles that our legal system, through …

Sex Work By Law: Bedford's Impact On The Municipal Regulation Of Sex Work, Elaine Craig

Articles, Book Chapters, & Popular Press

The recent Ontario trial decision in Bedford suggests three interrelated principles that municipal law makers should consider when formulating bylaws aimed at regulating sex work. These principles, if upheld on appeal, will inform the constitutionality of both current and prospective bylaws regulating sex work in Canadian cities. In Bedford, Justice Himel concluded that the constitutionality of laws regulating the sex trade must be determined in a legal context which recognizes the violence faced by sex workers. She confirmed that laws that indirectly make sex work more dangerous and harmful must be consistent with those principles that our legal system, through …

Judges And Religious-Based Reasoning, David Blaikie, Diana Ginn

Articles, Book Chapters, & Popular Press

Is it ever acceptable for a judge in a secular liberal democracy to rely on, and explicitly refer to, religious-based reasoning in reaching a decision? While it is unlikely that many Canadian judges will be seized with the desire to include religious-based reasoning in their judgments, we raise this issue because it allows us to examine the appropriate role of religious-based discourse in a challenging context, where arguments about unconstitutionality are strongest. In a previous article, we concluded that there are no ethical impediments to citizens using such discourse in discussing public affairs. We argued that it is no less …

Comparing And Contrasting The Constitutional Approaches Of Justice Scalia And Justice Breyer Through The Pending Supreme Court Case Schwarzenegger V Entertainment Merchants Association, Katherine E. Moran Ms.

CMC Senior Theses

The aim of this thesis is to explore the differences and similarities between Justice Antonin Scalia’s textualist approach to interpreting the Constitution and Justice Stephen Breyer’s Living Constitution approach (also called the evolutionist approach) by applying these disparate legal theories to Schwarzenegger v Entertainment Merchants Association, a case currently pending before the Supreme Court whose resolution centers on the interpretation of the First Amendment. The textualist approach relies primarily on interpreting the original meaning of the text of the Constitution, and attempting to decide cases in a way that is faithful to an amendment’s words as written (Rossum et …

Judging The Justices: A Critical Analysis Of Citizens United V. Federal Election Commission, Cassandra Gurrola

CMC Senior Theses

This thesis examines the recently decided Supreme Court case Citizens United v. Federal Election Commission. The case regards campaign finance reform, and has raised significant controversy recently. This thesis will evaluate the arguments from both the dissent and the majority opinions, contextualize these arguments with respect to the history of campaign finance reform and the history of the legislation with regard to corporations, and will ultimately pass judgment on whether the Court was correct in its decision. Implications for the post-Citizens world will also be considered.

Internet Access Rights: A Brief History And Intellectual Origins, Jonathon Penney

Articles, Book Chapters, & Popular Press

If there is anything we have learned from recent protest movements around the world, and the heavy-handed government efforts to block, censor, suspend, and manipulate Internet connectivity, it is that access to the Internet, and its content, is anything but certain, especially when governments feel threatened. Despite these hard truths, the notion that people have a "right" to Internet access gained high-profile international recognition last year. In a report to the United Nations General Assembly in early 2011, Frank La Rue, the UN Special Rapporteur on Freedom of Expression, held that Internet access should be recognized as a "human right". …

Powers Of War: President Versus Congress, Jordan D. Santo

CMC Senior Theses

Before the United States Constitution was ratified there was much debate about what war powers the executive and legislative branches should hold. After much deliberation it was decided that the power to declare war would fall under the control of Congress. But as time passed, control over initiating military action began to shift from Congress to the President. This thesis examines the shift of power from the legislature to the President. The thesis explains the difference between a declaration of war, an authorization of force, as well as using the military as a police force. It examines the precedents set …

The Reconciliation Doctrine In The Mclachlin Court: From A “Final Legal Remedy” To A “Just And Lasting” Process, Constance Macintosh

Articles, Book Chapters, & Popular Press

The issue upon which this paper focuses is one that runs through much of the Aboriginal rights jurisprudence over the last ten years: the idea of “reconciliation." However, the way in which the term is deployed, the values that inform it, the logic that drives it, and the conclusions that it supports have shifted and are continuing to shift. There are considerable differences between how this term was used at the time of Lamer C.J., its meaning for the bench under McLachlin C.J., and the new role it has evolved to take on most recently. In particular, reconciliation has come …

Advice And Consent Vs. Silence And Dissent? The Contrasting Roles Of The Legislature In U.S. And U.K. Judicial Appointments, Mary Clark

Scholarly Articles in Law Reviews & Journals

The Senate‘s role in judicial appointments has come under increasingly withering criticism for its uninformative and spectacle-like nature. At the same time, Britain has established two new judicial appointment processes - to accompany its new Supreme Court and existing lower courts - in which Parliament plays no role. This Article seeks to understand the reasons for the inclusion and exclusion of the legislature in the U.S. and U.K. judicial appointment processes adopted at the creation of their respective Supreme Courts.

The Article proceeds by highlighting the ideas and concerns motivating inclusion of the legislature in judicial appointments in the early …

Acta's Constitutional Problems: The Treaty Is Not A Treaty, Sean Flynn

Scholarly Articles in Law Reviews & Journals

On the eve of the United States’ entry into the Anti-Counterfeiting Trade Agreement (“ACTA”), there is considerable confusion as to just what legal effect the agreement will have. In written answers to Senator Ron Wyden, the United States Trade Representative (“USTR”) went to lengths to describe ACTA as non-binding, asserting that “ACTA does not constrain Congress’ authority to change U.S. law,” and that it would operate only as an “Executive Agreement” that “can be implemented without new legislation.” But European negotiators have described the agreement to their legislature in very different terms, asserting that ACTA is “a binding international agreement …

Linguistic Colonialism: Law, Independence, And Language Rights In Puerto Rico, Andrea Freeman

Faculty Scholarship

Part I reviews and analyzes courts' attempts to reconcile the conflict between the statutory English-language requirement for federal jurors, Puerto Rico's almost entirely Spanish-speaking population, and the Sixth Amendment's constitutional mandate. This part consists of three sub-parts: a description of Puerto Rico's linguistic landscape in comparison with that of the United States, a history of fair cross section challenges pertaining to the District of Puerto Rico, and a comparative look at fair cross section challenges in the Ninth Circuit. Part II examines the tension between language and constitutional rights through the lens of one case, Diffenderfer v. Gomez-Colon. In this …

Arrest Efficiency And The Fourth Amendment, Song Richardson

Scholarly Articles in Law Reviews & Journals

In recent years, legal scholars have utilized the science of implicit social cognition to reveal how unconscious biases affect perceptions, behaviors, and judgments. Employing this science, scholars critique legal doctrine and challenge courts to take accurate theories of human behavior into account or to explain their failure to do so. Largely absent from this important conversation, however, are Fourth Amendment scholars. This void is surprising because the lessons of implicit social cognition can contribute much to understanding police behavior, especially as it relates to arrest efficiency or hit rates - the rates at which police find evidence of criminal activity …

End-Of-Life Decision-Making In Canada: The Report By The Royal Society Of Canada Expert Panel On End-Of-Life Decision-Making, Udo Schuklenk, Johannes J. M. Van Delden, Jocelyn Downie, Sheila Mclean, Ross Upshur, Daniel Marc Weinstock

Reports & Public Policy Documents

This report on end-of-life decision-making in Canada was produced by an international expert panel and commissioned by the Royal Society of Canada. It consists of five chapters: Chapter 1 reviews what is known about end-of-life care and opinions about assisted dying in Canada, Chapter 2 reviews the legal status quo in Canada with regard to various forms of assisted death, Chapter 3 reviews ethical issues pertaining to assisted death. The analysis is grounded in core values central to Canada’s constitutional order, Chapter 4 reviews the experiences had in a number of jurisdictions that have decriminalized or recently reviewed assisted dying …

Imaginary Threats To Government's Expressive Interests, Helen Norton

Publications

The Supreme Court’s emerging government speech doctrine permits the government to refuse to allow other parties to join, and thus change or distort, its own message. In this way, the government speech doctrine appropriately protects government’s legitimate – and valuable – expressive interests by providing a defense to free speech clause claims by private speakers who seek to compel the government to deliver their own views. Too often, however, governmental bodies are asserting their own expressive interests to claim – and some courts are permitting them to exercise – the power to punish private parties’ speech that does not threaten …

The Equal Protection Implications Of Government's Hateful Speech, Helen Norton

Publications

Under what circumstances should we understand government's racist or otherwise hateful speech to violate the Equal Protection Clause? Government speech that communicates hostility or animus on the basis of race, gender, national origin, sexual orientation, or other class status can facilitate private parties' discriminatory behavior, deter its targets from certain important opportunities or activities, and communicate a message of exclusion and second-class status. Contemporary equal protection doctrine, however, does not yet fully address the harms that such government expression potentially poses. The recent emergence of the Court's government speech doctrine--which to date has emphasized the value of government expression without …

Book Review, Derek Kiernan-Johnson

Publications

No abstract provided.

An Article I Theory Of The Inherent Powers Of The Federal Courts, Benjamin H. Barton

Catholic University Law Review

No abstract provided.

A Standard For Salvation: Evaluating “Hybrid-Rights” Free-Exercise Claims, William J. Haun

Catholic University Law Review

No abstract provided.

Grabbing The Bullcoming By The Horns: How The Supreme Court Could Have Used Bullcoming V. New Mexico To Clarify Confrontation Clause Requirements For Csi-Type Reports, Paul F. Rothstein, Ronald J. Coleman

Georgetown Law Faculty Publications and Other Works

In the pilot episode of the hit television show CSI, Grissom says to Warrick: "Concentrate on what cannot lie. The evidence." Although Grissom is a beloved figure in U.S. popular culture, the U.S. is currently unwilling to accept that evidence never lies. In stark contrast to Grissom's statement, the common law has a long history of allowing criminal defendants to cross-examine and question witnesses providing evidence against them. The right to confront an accusatory witness is reflected in the historical legal documents of Great Britain, in Shakespearean writing, and even in the Bible. In the United States, the right to …

The Case For The Repeal Amendment, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Today, a political movement has arisen to oppose what seems to be a highly discretionary and legally unconstrained federal government. Beginning in the Bush Administration during the Panic of 2008 and accelerating during the Obama Administration, the federal government has bailed out or taken over banks, car companies, and student loans. It is now preparing to vastly expand the Internal Revenue Service to help it take charge of the practice of medicine for the first time in American history. This marked and rapid increase of power has shaken many Americans who are now looking to the United States Constitution with …

The Four Pillars Of Constitutional Doctrine, Suzanna Sherry

Vanderbilt Law School Faculty Publications

Constitutional interpretation, and thus constitutional doctrine, is inevitably controversial. Judges, scholars, lawyers, politicians, and the American public all disagree among themselves, not only about the correct constitutional outcome but even about the right approach to constitutional interpretation. We are unlikely to reach consensus on whether we should read the Constitution as a living and evolving document or instead read it in accordance with a fixed original meaning, much less on whether it does or does not protect campaign contributions, reproductive rights, affirmative action policies, gun ownership, or any of the other contested issues that have recently come before the Supreme …

Constitutional Adjudication In Japan: Context, Structures, And Values, John O. Haley

Vanderbilt Law School Faculty Publications

Judges in Japan share the prevailing communitarian orientation of their society, an orientation that rejects Manichean choices and moral or "scientific" absolutes, but instead relies on their collective and individual perceptions of community values, including the global community, shared by peers. They also, I believe, accept an unstated premise that legislative and administrative decisions reflect a consensus among the participants--not a simple majority. The issue remains as to who participates--who sits at the table--but the political and administrative processes do not routinely require merely fifty-one out of a hundred votes. As a consequence, judges are cautiously conservative. They adhere to …

Vicki C. Jackson, Constitutional Engagement In A Transnational Era, Melissa A. Waters

Scholarship@WashULaw

This essay reviews and critiques Vicki C. Jackson's book on constitutional engagement and comparative constitutional law.

Over the past decade, the debate over the use of foreign authority in interpreting the U.S. Constitution has fallen prey to an unfortunate “Crossfire” phenomenon, reminiscent of the old (and much maligned) CNN news commentary program. Serious discourse on this important issue has been obscured by an increasingly rancorous public debate in the news media, the blogosphere, and even before Congress. In this Crossfire debate, it seems, everyone must “choose up sides.” So-called “nationalists” deplore even most modest citations to foreign authority in constitutional …

Congress, The Supreme Court, And Judicial Review: Testing A Constitutional Separation Of Powers Model, Stefanie A. Lindquist, Jeffrey A. Segal, Chad Westerland

Scholarship@WashULaw

Recent scholarship suggests that the U.S. Supreme Court might be constrained by Congress in constitutional cases. We suggest two potential paths to Congressional influence on the Court's constitutional decisions: a rational-anticipation model, in which the Court moves away from its preferences in order to avoid being overruled, and an institutional-maintenance model, in which the Court protects itself against Congressional attacks to its institutional prerogatives by scaling back its striking of laws when the distance between the Court and Congress increases. We test these models by using Common Space scores and the original roll-call votes to estimate support in the current …

The Multiple-Stage Process Of Judicial Review: Facial And As-Applied Constitutional Challenges To Legislation Before The U.S. Supreme Court, Stefanie A. Lindquist, Pamela C. Corley

Scholarship@WashULaw

The Supreme Court’s decision to invalidate a legislative enactment involves both the choice to strike as well as the choice whether to invalidate the statute on its face or as applied. Both choices implicate the possibility of counteraction by the legislature. In this paper, we evaluate the justices’ choices to invalidate a state or federal enactment on its face or as applied and find that the justices are responsive to congressional preferences concerning the substance of the legal challenge at both stages of judicial review. Other factors systematically affect the justices’ decisions as well, including the legal basis for the …

Judicial Dialogue In Roper: Signaling The Court’S Emergence As A Transnational Legal Actor? A Response To Professor Mark Tushnet, Melissa A. Waters

Scholarship@WashULaw

Professor Mark Tushnet contends that Roper v. Simmons is consistent with a long line of U.S. Supreme Court precedent utilizing foreign authority in constitutional interpretation. Given this consistency, he asserts that the controversy over Roper, "must rest on something new in constitutional discourse," and finds the, "something new," in two sources: The rise of originalism and renewed, "concern for the place of the United States in the modern international order."

This response essay suggests two additional sources for the controversy over Roper. First is the emerging transnational judicial dialogue among the world's constitutional courts on human rights issues, and the …

Party Polarization And Congressional Committee Consideration Of Constitutional Questions, Neal Devins

Faculty Publications

No abstract provided.