Constitutional Law Commons^™

The Siren Song Of History: Originalism And The Religion Clauses, Jeffrey Shulman

Georgetown Law Faculty Publications and Other Works

It is hard to foresee much happiness in the lot of those seeking the original meaning of the Religion Clauses. We may acknowledge the opacity of the historical record, the variety of viewpoints held by founders forgotten and non-forgotten, the humanness of the founders who did not always practice what they preached, even the basic indeterminancy of language; still, we are seduced by the siren song of interpretive certainty. But the search for greater clarity is not without its payoff. As the three books under review here illustrate, the more we look for answers in the historical record, the more …

Scary Monsters: Hybrids, Mashups, And Other Illegitimate Children, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

Human creativity, like human reproduction, always makes new out of old in ways that copyright law has not fully recognized. The genre of vidding, a type of remix made mostly by women, demonstrates how creativity can be disruptive, and how that disruptiveness is often tied to ideas about sex and gender. The most frightening of our modern creations—the Frankenstein’s monsters that seem most appropriative and uncanny in light of old copyright doctrine—are good indicators of what our next generation of creativity may look like, especially if creators’ diversity in gender, race, and economic background is taken into account.

Tragic Rights: The Rights Critique In The Age Of Obama, Robin West

Georgetown Law Faculty Publications and Other Works

This article discusses the absence of the Rights Critique in the modern era, and its impact on the current formulation of rights in America. The three-pronged rights critique-–that U.S. constitutional rights politically insulate and valorize subordination, legitimate and thus perpetrate greater injustices than they address, and socially alienate us from community--was nearly ubiquitous in the 1980s. Since that time, it has largely disappeared, which in this author’s view is an unfortunate development.

The rights critique continues to be relevant today, because Obama-era rights continue to subordinate, legitimate, and alienate. However, these rights do more than just exaggerate the pathologies of …

The Illusory Right To Counsel, Eve Brensike Primus

Articles

Imagine a woman wrongly accused of murdering her fiance. She is arrested and charged with first-degree murder. If convicted, she faces a mandatory sentence of life without the possibility of parole. Her family scrapes together enough money to hire two attorneys to represent her at trial. There is no physical evidence connecting her to the murder, but the prosecution builds its case on circumstantial inferences. Her trial attorneys admit that they were so cocky and confident that she would be acquitted that they did not bother to investigate her case or file a single pre-trial motion. Rather, they waived the …

Judicial Takings And Collateral Attacks On State Court Property Decisions, Stacey L. Dogan, Ernest A. Young

Faculty Scholarship

In Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection,1 the U.S. Supreme Court divided over the question whether takings alleged to have occurred as a result of judicial action should be treated identically to takings by legislative or executive actors. In this essay, we accept the plurality’s basic contention that it makes little sense to treat judicial takings of property categorically differently than takings by other branches of government. If a judge decided to condemn property for a highway project, for example, we agree with Justice Scalia that the Constitution would compel compensation, just as it does …

Bad News For Professor Koppelman: The Incidental Unconstitutionality Of The Individual Mandate, Gary S. Lawson, David B. Kopel

Faculty Scholarship

In "Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform," Professor Andrew Koppelman concludes that the individual mandate in the Patient Protection and Affordable Care Act (PPACA) is constitutionally authorized as a law "necessary and proper for carrying into Execution" other aspects of the PPACA. However, the Necessary and Proper Clause rather plainly does not authorize the individual mandate.

The Necessary and Proper Clause incorporates basic norms drawn from eighteenth-century agency law, administrative law, and corporate law. From agency law, the clause embodies the venerable doctrine of principals and incidents: a law enacted under the clause must …

Juvenile Life Without Parole: Unconstitutional In Michigan?, Kimberly A. Thomas

Articles

Last term, in Graham v Florida,1 the United States Supreme Court found unconstitutional the sentence of life without parole for a juvenile who committed a non-homicide offense. This attention to the sentencing of juvenile offenders is a continuation of the Court's decision in Roper v Simmons,2 in which the Court held that juvenile offenders could not constitutionally receive the death penalty. This scrutiny should be a signal to Michigan to examine its own jurisprudence on juveniles receiving sentences of life without parole. Michigan has the second-highest number of persons serving sentences of life without parole for offenses committed when they …

Rebel Without A Clause: The Irrelevance Of Article Vi To Constitutional Supremecy, Gary S. Lawson

Faculty Scholarship

With Stare Decisis and Constitutional Text, 1 Jonathan Mitchell has produced what I think is the most interesting and creative textual defense2 (or at least partial defense) to date of the use of horizontal precedent in federal constitutional cases.3 Mitchell’s careful analysis of the Supremacy Clause is fascinating and instructive, and he does an impeccable job of drawing out the implications of his premise that the Supremacy Clause prescribes only a very limited choice-of-law rule—a rule that does not, by its own terms, specifically elevate the Constitution above federal statutes and treaties. His innovative and intriguing framework yields four distinct …

Democratic Participation And The Freedom Of Speech: A Response To Post And Weinstein Responses, Vincent A. Blasi

Faculty Scholarship

I think it is useful to search for a theory that has as one of its justifications its superior fit with either the case law or the fundamental commitments and shared understandings of the political community, preferably with both. So even if someone were to convince me that she has in hand a normatively superior theory of free speech, whether grounded in the commitment to democracy or otherwise, I would still be interested in what Professors Post and Weinstein are trying to do.

Seana Shiffrin's Thinker-Based Freedom Of Speech: A Response, Vincent A. Blasi

Faculty Scholarship

As an instinctive consequentialist so far as First Amendment theory is concerned, I have to admit that I have never been so tempted by a non-consequentialist account as I am by what Professor Shiffrin has produced. My principal interest is the history of ideas regarding the freedom of speech. I have long been struck by how so many of the canonical writers on the subject have built their arguments from the starting point of the central importance of the freedom of thought. This is true of Milton and Mill in a basic, explicit, straightforward way (if Milton can ever be …

Originalism's Race Problem, Jamal Greene

Faculty Scholarship

For all its proponents' claims of its necessity as a means of constraining judges, originalism is remarkably unpopular outside the United States. Recommended responses to judicial activism in other countries more typically take the form of minimalism or textualism. This Article considers why. Ifocus particular attention on the political and constitutional histories of Canada and Australia, nations that, like the United States, have well-established traditions of judicial enforcement of a written constitution, and that share with the United States a common law adjudicative norm, but whose political and legal cultures less readily assimilate judicial restraint to constitutional historicism. I offer …

Randomization And The Fourth Amendment, Bernard Harcourt, Tracey L. Meares

Faculty Scholarship

Randomized checkpoint searches are generally taken to be the exact antithesis of reasonableness under the Fourth Amendment. In the eyes of most jurists checkpoint searches violate the central requirement of valid Fourth Amendment searches – namely, individualized suspicion. We disagree. In this Article, we contend that randomized searches should serve as the very lodestar of a reasonable search. The notion of "individualized" suspicion is misleading; most suspicion in the modem policing context is group based and not individual specific. Randomized searches by definition are accompanied by a certain level of suspicion. The constitutional issue, we maintain, should not turn on …

Federalism Under Obama, Gillian E. Metzger

Faculty Scholarship

At first glance, federalism would seem to have fared poorly under the Obama administration. The administration's signature achievements to date involve substantial expansions of the federal government's role, be it through new federal legislation addressing health insurance and financial sector reform or massive injections of federal spending. Such expansions in the federal government's role frequently translate into restrictions on the states. New federal legislation often preempts prior state regulation, and federal spending often comes with substantial conditions and burdens for the states. Not surprisingly, many state officials have sharply criticized these developments at the federal level, often invoking federalism as …

On Dejudicializing American Campaign Finance Law, Richard Briffault

Faculty Scholarship

The Supreme Court dominates American campaign finance law. Citizens United v. Federal Election Commission dramatically illustrates this basic truth, but Citizens United is nothing new. The Court has been the preeminent force in shaping and constraining our campaign finance laws since Buckley v. Valeo, and the Court's role as arbiter of what regulations may or may not be enforced only continues to grow. The President of the United States can wag his finger at the Court during the State of the Union Address and denounce its Citizens United ruling to the Justices' faces on national television, but even he …

Four Constitutional Limits That The Minimum Coverage Provision Respects, Neil S. Siegel

Faculty Scholarship

Opponents of the minimum coverage provision in the Affordable Care Act charge that if Congress can require most people to obtain health insurance or pay a certain amount of money, then Congress can impose whatever mandates it wishes - or, at least, whatever purchase mandates it wishes. This Essay refutes that claim by identifying four limits on the Commerce Clause that the minimum coverage provision honors. Congress may not use its commerce power: (1) to regulate noneconomic subject matter; (2) to impose a regulation that violates constitutional rights, including the right to bodily integrity; (3) to regulate at all, including …

Searching For Effective And Constitutional Responses To Homegrown Terrorists, Barbara L. Mcquade

Articles

Thank you, Brad, and thank you to the Law Review for inviting me here today. Protecting national security while honoring civil liberties is the greatest challenge of our generation. As a prosecutor, I am charged with protecting national security, and I understand the importance of protecting the public from acts of terrorism. But prosecutors are also sworn to uphold the Constitution. In fact, at the U.S. Attorney's Office, we are also charged with prosecuting violations of civil rights. So in every case, we understand how important it is to protect people's constitutional rights, such as First Amendment rights to free …

Rationing Justice By Rationing Lawyers, Peter A. Joy

Scholarship@WashULaw

The number of lawyers in the United States continues to increase, but low and middle-income persons still find it difficult, if not impossible, to afford legal assistance. National and state surveys reveal that more than 80 percent of the civil legal needs of the poor go unmet, as do a majority of the needs of middle-income persons. Legal representation can often dramatically increase a person’s ability to win at trial or to negotiate a favorable outcome, and the lack of access to lawyers effectively closes the courthouse doors for millions. This Article focuses on the crisis in Missouri's public defender …

Mosaic Theory And The Fourth Amendment: How Jones Can Save Privacy In The Fact Of Evolving Technology, Madelaine Virginia Ford

American University Journal of Gender, Social Policy & the Law

No abstract provided.