Constitutional Law Commons^™

Constitutional Restraints On The Doctrine Of Punitive Damages, Theodore B. Olson, Theodore J. Boutrous Jr.

Pepperdine Law Review

No abstract provided.

The Code And The Constitution: Fifth Amendment Limits On The Debtor's Discharge In Bankruptcy, Nicholas A. Franke

Pepperdine Law Review

No abstract provided.

National Treasury Employees Union V. Von Raab—Will The War Against Drugs Abrogate Constitutional Guarantees?, Alyssa C. Westover

Pepperdine Law Review

No abstract provided.

Texas V. Johnson: The Constitutional Protection Of Flag Desecration, Patricia Lofton

Pepperdine Law Review

No abstract provided.

The Constitutionality Of The Federal Sentencing Reform Act After Mistretta V. United States, Charles R. Eskridge Iii

Pepperdine Law Review

No abstract provided.

The Ninth Amendment In Congress, Brian C. Kalt

Pepperdine Law Review

The Ninth Amendment declares that “[t]he enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” Scholars have developed a rich literature on the Ninth Amendment, but they have focused nearly exclusively on how courts should treat the amendment’s mysterious unenumerated rights. Other scholars have generated an even richer body of work on constitutional interpretation outside the courts. These scholars have written persuasively about the role of Congress as an important participant in constitutional debate and development. However, this work has largely ignored the Ninth Amendment. This article brings these …

Towards A Borgean Theory Of Constitutional Interpretation, Marco Jimenez

Pepperdine Law Review

This Article presents a reworking of Jorge Luis Borges’ short story, Pierre Menard, Author of the Quixote, as applied to the U.S. Constitution. In Borges’ original story, which deals with important issues governing interpretation, the creation of meaning, and the ascertainment of original intent, Borges’ fictional scholar, Pierre Menard, undertakes to translate Cervantes’ Don Quixote for a modern audience by creating a Quixote that could have been written by Cervantes today. To do so, Menard begins by immersing himself in the world of 17th century Spain, much as an originalist today might immerse him or herself in 18th century America, …

Seeking An Islamic Reflective Equilibrium: A Response To Abdullahi A. An-Na'im’S Complementary, Not Competing, Claims Of Law And Religion: An Islamic Perspective, Mohammad H. Fadel

Pepperdine Law Review

Professor 'Abdallahi Na'im argues that there can be no conflict between religion and the state because religion and politics are part of different normative orders, and thus it is not conceivable that a conflict can arise between them. I argue that Na'im's solution to the problematic relationship of religion to state shares the same conceptual terrain as separationism in American constitutional law, a position which has grown increasingly untenable as a result of the increasing religious pluralism in the United States and the expansion of the government into areas of life in a manner that would have been inconceivable even …

The Mighty Work Of Making Nations Happy: A Response To James Davison Hunter, Patrick Mckinley Brennan

Pepperdine Law Review

This article is an invited response to James Davison Hunter’s much-discussed book To Change the World: The Irony, Tragedy, and Possibility of Christianity in the Late Modern World (Oxford University Press, 2010). Hunter, a sociologist at UVA and a believing Protestant, claims that law’s capacity to contribute to social change is “mostly illusory” and that Christians, therefore, should practice “faithful presence” in the public square rather than seek to influence law directly. My response is that it is, in fact, law’s stunning ability to alter and limit available choices that makes it an object of deservedly fierce contest. The wild …

Symposium Introduction: The Competing Claims Of Law And Religion: Who Should Influence Whom? , Robert F. Cochran Jr., Michael A. Helfand

Pepperdine Law Review

No abstract provided.

Take The Money And Run: Detainment Incident To A Search Warrant In Bailey V. United States, Alexander Hall

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, Bailey v. United States, in which the Court will examine the scope of permissible non-arrest seizures in the context of a detainment incident to a search warrant. The case offers the Court an opportunity to clarify its holding in Michigan v. Summers--that occupants of premises being searched pursuant to a valid warrant may be detained during the search--by determining whether such a detainment is permissible when the occupants have left the premises.

Clapper V. Amnesty International: Who Has Standing To Challenge Government Surveillance?, Elisa Sielski

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, Clapper v. Amnesty International, in which the Court will examine whether plaintiffs have standing to challenge possible government surveillance under the Foreign Intelligence Surveillance Act. In so doing, the Court will have to revisit the standards for standing in surveillance cases in light of Laird v. Tatum and a circuit split stemming from that case.

Evans V. Michigan: The Impact Of Judicial Error On Double Jeopardy Protection, Zi-Xiang Shen

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, Evans v. Michigan, in which the Court has an opportunity to clarify the bounds of the prohibition on double jeopardy. More specifically, the Court will determine what, if any, impact judicial error has on double jeopardy protection under the Fifth Amendment.

January 13, 2013: Why Tolerate Religion? Because Secularists Need It, Bruce Ledewitz

Hallowed Secularism

Blog post, “Why Tolerate Religion? Because Secularists Need It“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

January 11, 2013: Rest Of Taking Nihilism Seriously , Parts 4&5, Bruce Ledewitz

Hallowed Secularism

Blog post, “Rest of Taking Nihilism Seriously , Parts 4&5“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

January 8, 2013: More On Taking Nihilism Seriously, Part 3, Bruce Ledewitz

Hallowed Secularism

Blog post, “More On Taking Nihilism Seriously, Part 3“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

January 7, 2013: The Error Of Theism And Atheism Is The Same And Must Be Overcome Together, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Error of Theism and Atheism is the Same and Must be Overcome Together“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

January 6, 2013: On Taking Nihilism Seriously, Bruce Ledewitz

Hallowed Secularism

Blog post, “On Taking Nihilism Seriously“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

January 5, 2013: Restoring The Lost Constitution, Bruce Ledewitz

Hallowed Secularism

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

Religious Freedom And Women's Health - Litigation On Contraception, Timothy Stoltzfus Jost

Scholarly Articles

Not available.

A Testament To Power: Mary Woolsey And Dolores Rodriguez As Trial Witnesses In Arizona's Early Statehood, Katrina Jagodinsky

Department of History: Faculty Publications

In 1913, two women made history when they testified before the all-white, all-male jury of the Superior Court of Yavapai County in the State of Arizona v. Juan Fernandez murder trial. Mary Woolsey, an elderly Yavapai widow, and Dolores Rodriguez, a Mexican single mother of three, established the legal precedent for allowing non-English-speaking, non-citizen women to testify in state courts in Arizona when many other western states still did not grant such privileges to indigenous residents. Woolsey and Rodriguez showed that Arizona's indigenous population were competent, if somewhat problematic, members of Arizona's body politic, and their historic involvement in the …

Shelby V. Holder: Brief Of Professor Patricia A. Broussard And Famu College Of Law Students As Amici Curiae In Support Of Respondents, Patricia A. Broussard, Sabrina Collins, Stacy Hane, Akunna Olumba

Amicus Briefs

Shelby County, Alabama v. Eric H. Holder, Jr., In the Supreme Court of the United States, Brief of Professor Patricia A. Broussard, Sabrina Collins, Stacy Hane, Akunna Olumba and Named Students and Organizations of Florida A & M University College of Law as Amici Curiae in Support of Respondents

A State's Obligation To Fund Hormonal Therapy And Sex-Reassignment Surgery For Prisoners Diagnosed With Gender Identity Disorder, Rena M. Lindevaldsen

Faculty Publications and Presentations

This article explores whether a state law imposing a flat ban on the use of funds to provide cross-gender hormones or sex-reassignment surgery for prisoners diagnosed with GID satisfies the Eighth Amendment standard of deliberately indifferent to serious medical needs. In other words, the issue is whether it constitutes cruel and unusual punishment for a state to refuse to provide hormones or sex-reassignment surgery to GID prisoners. The district court in Kosilek v. Spencer1 held that it does: the state violated the Eighth Amendment in providing feminizing hormones to Kosilek but refusing to provide him sex-reassignment surgery. Part I …

Warriors, Machismo, And Jockstraps: Sexually Exploitative Athletic Hazing And Title Ix In The Public School Locker Room, Susan P. Stuart

Law Faculty Publications

Sexually exploitative athletic hazing on boys’ athletic teams is an increasingly frequent feature in the news. The physical and psychological abuse of younger team members by those who are more senior is not just humiliating but dangerous. Indeed, some athletes are charged with crimes that are committed during hazing activities. More to the point, the features of sexually exploitative hazing have all the earmarks of sexual harassment when team leaders use sexual assaults to keep younger members in their place by feminizing them or otherwise challenging their ability to conform to a hegemonic masculine sports stereotype. Athletic hazing’s part in …

Justice For All: Reimagining The Internal Revenue Service, David J. Herzig

Law Faculty Publications

The ability of the Internal Revenue Service to both collect the tax and enforce the initial determination of tax liability in a neutral and fair manner has been compromised by a February 2011 pronouncement issued by the Department of Justice stating that the President and the Department of Justice believe that section 3 of the Defense of Marriage Act is unconstitutional and that the Department of Justice will no longer defend the statute in courts. The pronouncement results in a disparate treatment of similar taxpayers based solely on the forum of litigation. Through this lens, I examine whether it is …

Persons Who Are Not The People: The Changing Rights Of Immigrants In The United States, Geoffrey Heeren

Law Faculty Publications

Non-citizens have fared best in recent Supreme Court cases by piggybacking on federal rights when the actions of states are at issue, or by criticizing agency rationality when federal action is at issue. These two themes-federalism and agency skepticism-have proven in recent years to be more effective litigation frameworks than some individual rights-based theories like equal protection. This marks a substantial shift from the Burger Court era, when similar cases were more likely to be litigated and won on equal protection than on preemption or Administrative Procedure Act theories. This Article describes this shift, considers the reasons for it, and …

A Monist Supremacy Clause And A Dualistic Supreme Court: The Status Of Treaty Law As U.S. Law, D. A. Jeremy Telman

Law Faculty Publications

Hans Kelsen identified three possible relationships between the international and domestic legal orders. Dualism understands the international and domestic legal orders as separate and independent. Monism describes a single and comprehensive legal order but can operate with either domestic law or international law as a higher order law. Like many domestic legal orders, that of the United States has never fully worked out which of these three options specifies the status of international law in its domestic legal order. While the text of the United States Constitution suggests a form of monism in which international law is automatically part of …

Section 1983 Is Born: The Interlocking Supreme Court Stories Of Tenney And Monroe, Sheldon Nahmod

All Faculty Scholarship

No abstract provided.

Why Broccoli? Limiting Principles And Popular Constitutionalism In The Health Care Case, Mark D. Rosen, Christopher W. Schmidt

All Faculty Scholarship

Crucial to the Court’s disposition in the constitutional challenge to the Affordable Care Act (ACA) was a hypothetical mandate to purchase broccoli, which Congress never had considered and nobody thought would ever be enacted. For the five Justices who concluded the ACA exceeded Congress’s commerce power, a fatal flaw in the government’s case was its inability to offer an adequate explanation for why upholding that mandate would not entail also upholding a federal requirement that all citizens purchase broccoli. The minority insisted the broccoli mandate was distinguishable. This Article argues that the fact that all the Justices insisted on providing …

Just Another Brick In The Wall: The Establishment Clause As A Heckler's Veto, Richard F. Duncan

Nebraska College of Law: Faculty Publications

"When rights are incorporated against the States through the Fourteenth Amendment they should advance, not constrain, individual liberty."'

Although the First Amendment explicitly protects individuals against only laws made by "Congress," the Supreme Court has long held that, under the Due Process Clause of the Fourteenth Amendment, the states are forbidden from "depriving" persons of the fundamental individual liberties protected by the First Amendment.' Thus, under the so-called doctrine of incorporation, a particular provision of the First Amendment (as well as of the rest of the Bill of Rights) "is made applicable to the states [only] if the Justices are …