Constitutional Law Commons^™

December 5, 2015: Islamic Terrorism, Christian Terrorism And Jewish Terrorism, Bruce Ledewitz

Hallowed Secularism

Blog post, “Islamic Terrorism, Christian Terrorism and Jewish Terrorism“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Mcdonald V. Chicago, Self-Defense, The Right To Bear Arms, And The Future, Richard L. Aynes

ConLawNOW

In this article, Professor Richard L. Aynes, who was cited for his research by the majority in McDonald, delivers his critique on the opinion, the concurrence, and the dissent. Professor Aynes provides an in-depth analysis of Justice Thomas’ concurrence, which asserts the proper vehicle for incorporation to be the Fourteenth Amendment’s Privileges and Immunities Clause, as opposed to the traditional method employed by the court – the Due Process Clause. With contemporary legal scholarship in agreement with Justice Thomas, Professor Aynes asserts that just as the Privileges and Immunities Clause commanded the support of a ratifying nation, “it will …

Judicial Elections: The Case For Accountability, Jack Park

ConLawNOW

In this article, Jack Park defends the use of partisan elections as a method of selecting state court judges. He first frames the debate and describes its participants. The author then discusses the competing values that supporters and opponents of judicial elections advance. Finally, Mr. Park addresses the arguments for and against judicial elections, showing that, while they may not be a perfect method of selecting judges, neither are the alternatives.

Electing Our Judges And Judicial Independence: The Supreme Court's "Triple Whammy", Martin H. Belsky

ConLawNOW

In this article, Martin Belsky makes the case for judicial selection based on merit, as opposed to popular elections. Belsky cites Caperton v. A.T. Massey Coal Company and the recent defeat of three Iowa supreme court justices because of their opinion in a controversial gay marriage case for the proposition that judicial elections can, and do, yield unjust results. Belsky asserts the need for judicial independence, but concludes that this goal is not achievable through elections because of the “triple whammy” of constitutional limitations: (1) the First Amendment protection of the right of judges and judicial candidates to give specific, …

Crawford's Last Stand? What Melendez-Diaz V. Massachusetts Means For The Confrontation Clause And For Criminal Trials, Elizabeth Stevens

ConLawNOW

The Supreme Court’s recent decision in Melendez-Diaz v. Massachusetts heralds a dramatic change for Confrontation Clause jurisprudence and for most criminal trials. Crawford v. Washington held that “testimonial” statements were admissible only if the accused had a prior opportunity to cross-examine the witness. Melendez-Diaz applied this rule to forensic evidence, holding that certificates of analysis – used in a drug trail to prove the nature and weight of the proscribed substances, and sworn to and signed by the analysts who performed the tests – are testimonial.

This article analyzes Melendez-Diaz’s implications for the Court’s Confrontation Clause jurisprudence and for the …

The Second Amendment Standard Of Review After Mcdonald: "Historical Guideposts" And The Missing Arguments In Mcdonald V. City Of Chicago, Patrick J. Charles

ConLawNOW

In this article, Patrick Charles addresses the first step in analyzing Second Amendment challenges – whether the challenged conduct was “publicly accepted” or “publicly understood” as within the scope of the Second Amendment, circa 1791. This article also analyzes two premises on which the McDonald plurality based its decision, ultimately concluding that those premises are inaccurate. In his opinion, Justice Alito asserted that State constitutions at the time of the founding generally protected an individual right to keep and bear arms. However, an in-depth examination of all State constitutional provisions suggests otherwise. Secondly, John Bingham’s understanding of what the Fourteenth …

Citizens United: Correct, Modest, And Overdue, Allison R. Hayward

ConLawNOW

In this article, Professor Allison Hayward seeks to refute the criticisms leveled at the outcome in Citizens United. Professor Hayward maintains that the “long-standing precedent” overturned by the majority was not firmly rooted, having only been around for a mere 20 years. She further argues that Citizens United is a proper application of First Amendment doctrine. Lastly, Professor Hayward argues that corporations play an important role in our society, most especially those non-profit entities which so often are associated with political advocacy.

The Roberts' Court Takes A Sledge Hammer To Ashwander And Cautious Constitutional Jurisprudence: Citizens United V. Federal Election Commisson, Allen Shoenberger

ConLawNOW

In this January’s decision of Citizens United v. Federal Election Commission, the Supreme Court overturned more than 100 years of legislative precedent, as well as its own precedent of twenty years, to permit corporations to spend unlimited amounts of money on direct advocacy of the election or defeat of candidates for political office. The breadth of the holding is startling. Although the specific context considered a video-on-demand ninety minute diatribe regarding Presidential aspirant Hilary Clinton, the plain import of the holding reaches all federal and state elections, presidential, congressional, gubernatorial, judicial, and janitorial!

Chief Justice Roberts And The "Forty Thieves", Keith R. Fisher, Konstantina Vagenas

ConLawNOW

“What’s in a name? That which we call a rose/ By any other name would smell as sweet.” Whether or not one agrees with the young Shakespeare about names – and many decidedly do not – numbers (as numerologists undoubtedly will assure you) are decidedly a different story and have always been thought to have extrinsic significance.

The number forty, for example, has extensive numerological significance, principally (though not exclusively) in biblical texts. A time period in the Bible – whether in days, months, or years and whether in the books of the Old or New Testament – that features …

Originalism And Its Tools: A Few Caveats, David T. Hardy

ConLawNOW

In District of Columbia v. Heller, the United States Supreme Court adopted original public understanding as an interpretative tool. While this approach has the virtue of establishing meaning independent of a court’s personal values and preferences, this article explores some hazards which courts should try to avoid. First, one must resist the temptation to see historians as invariably objective; some are apt to push a personal agenda, or get a reputation as a “debunker,” at the cost of distorting, overlooking, or even inventing the historical record. Historical studies of this type have misled the Ninth Circuit, and a dissent …

On Marriage, Religious Freedom, Equality And Homosexuality: A Reply To Professor Huhn, George W. Dent Jr.

ConLawNOW

As Professor Huhn says, there is much on which we agree. I concur that the Free Exercise Clause gives citizens no power to override an Equal Protection decision by the Supreme Court (his answer to his Question 1), or a decision of a state supreme court to compel legal recognition of same-sex “marriage” (SSM) (his answer to his Question 2). We part company, though, over the meaning of equality and its application to marriage.

Ten Questions On Gay Rights And Freedom Of Religion, Wilson R. Huhn

ConLawNOW

I have prepared a series of ten questions that will progressively narrow the issues concerning gay rights and free exercise rights until we come to the principal point upon which Professor Dent and I disagree – the definition and application of the principle of equality.

Six Degrees Of Separation: Attribution Under The Foreign Sovereign Immunities Act In Obb Personenverkehr Ag V. Sachs, Daniel R. Echeverri

Duke Journal of Constitutional Law & Public Policy Sidebar

The Foreign Sovereign Immunities Act (FSIA) generally prevents foreign sovereigns from falling within the jurisdiction of U.S. courts, subject to exceptions the FSIA lists. This commentary analyzes BB Personenverkehr AG v. Sachs, a case before the Supreme Court on the question of whether the commercial activities exception of the FSIA applies when only one element of a plaintiff's claim is based upon commercial activity occurring in the United States and whether that sale can be attributed to a foreign sovereign. In this case, the plaintiff purchased a rail pass through an online, third-party travel agent. While traveling abroad and …

Constitutional Law-Aliens-Equal Protection Clause Does Not Require Extension Of Special Immigrant Status To Aliens From Non-Contiguous Countries, Laurie C. Gregory

Georgia Journal of International & Comparative Law

No abstract provided.

Religion And Social Coherentism, Nelson Tebbe

Notre Dame Law Review

Today, prominent academics are questioning the very possibility of a theory of free exercise or non-establishment. They argue that judgments in the area can only be conclusory or irrational. In contrast to such skeptics, this Essay argues that decisionmaking on questions of religious freedom can be morally justified. Two arguments constitute the Essay. Part I begins by acknowledging that skepticism has power. The skeptics rightly identify some inevitable indeterminacy, but they mistakenly argue that it necessarily signals decisionmaking that is irrational or unjustified. Their critique is especially striking because the skeptics’ prudential way of working on concrete problems actually shares …

The Fixation Thesis: The Role Of Historical Fact In Original Meaning, Lawrence B. Solum

Notre Dame Law Review

Part I begins by examining the role of the Fixation Thesis in contemporary originalist constitutional theory. The next step, in Part II, is to state the affirmative case for the Fixation Thesis. This is the heart of this Article and readers who are looking for the gist might limit themselves to the discussion here. Part III explores a variety of objections to the Fixation Thesis and clarifies the content of the thesis in light of the answers to these objections. Several theoretical views that reject (or seem to reject) the Fixation Thesis are examined in Part IV. Part V applies …

Before There Were Mouseholes: Resurrecting The Non-Delegation Doctrine, Joel Hood

Brigham Young University Journal of Public Law

No abstract provided.

Collateral Consequences And The Preventive State, Sandra G. Mayson

Notre Dame Law Review

Approximately eight percent of adults in the United States have a felony conviction. The “collateral consequences” of criminal conviction (CCs)—legal disabilities imposed by legislatures on the basis of conviction, but not as part of the sentence—have relegated that group to permanent second-class legal status. Despite the breadth and significance of this demotion, the Constitution has provided no check; courts have almost uniformly rejected constitutional challenges to CCs. Among scholars, practitioners and mainstream media, a consensus has emerged that the courts have erred by failing to recognize CCs as a form of additional punishment. Courts should correct course by classifying CCs …

December 1, 2015: What Really Fuels Isis?, Bruce Ledewitz

Hallowed Secularism

Blog post, “What Really Fuels ISIS?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

A Critique Of Hobby Lobby And The Supreme Court's Hands-Off Approach To Religion, Samuel J. Levine

Notre Dame Law Review Reflection

Part I of this Essay provides a brief overview for analyzing the Supreme Court’s hands-off approach to religious doctrine. Specifically, this Part presents a summary of problems posed by the hands-off approach, followed by a brief taxonomy of different forms of judicial inquiry into religion. This Part aims to clarify which forms of inquiry are permissible—and typically necessary—for adjudication of a case involving a religious claim, and which forms of inquiry are precluded under the hands-off doctrine. Part II of this Essay applies the hands-off framework to the Hobby Lobby decision, considering the taxonomy of forms of judicial inquiry into …

Foreword: Private And Public Revisited Once Again, Mark A. Graber

Maryland Law Review

No abstract provided.

Hunting And The Second Amendment, Joseph Blocher

Notre Dame Law Review

Debates about the meaning and scope of the Second Amendment have traditionally focused on whether it protects the keeping and bearing of arms for self-defense, prevention of tyranny, maintenance of the militia, or some combination of those three things. But roughly half of American gun-owners identify hunting or sport shooting as their primary reason for owning a gun. And while much public rhetoric suggests that these activities fall within the scope of the Second Amendment, some of the most committed gun-rights advocates insist that the Amendment “ain’t about hunting” and that, no matter their heritage and value, such activities are …

Applying Citizens United To Ordinary Corruption: With A Note On Blagojevich, Mcdonnell, And The Criminalization Of Politics, George D. Brown

Notre Dame Law Review

Federal criminal law frequently deals with the problem of corruption in the form of purchased political influence. There appear to be two distinct bodies of federal anticorruption law: one concerning constitutional issues in the prevention of corruption through campaign finance regulation, and one addressing corruption in the form of such crimes as bribery, extortion by public officials, and gratuities to them. The latter body of law primarily presents issues of statutory construction, but it may be desirable for courts approaching these issues to have an animating theory of what corruption is and how to deal with it. At the moment, …

Equal Access In Cyberspace: On Bridging The Digital Divide In Public Accommodations Coverage Through Amendment To The Americans With Disabilities Act, Laura Wolk

Notre Dame Law Review

This Note will proceed in three Parts. Part I will trace the development of the case law on this issue, which has culminated in a circuit split. It will also discuss the influence of the Department of Justice (DOJ), which has not exercised its regulatory authority on the subject but which has initiated enforcement actions consistent with an interpretation that includes freestanding websites. Part II will argue, based on the text, congressional silence, and the statute’s dual principal purposes, that private commercial websites do not fall within the purview of Title III. Part III will propose that disability rights advocates …

Telescoping And Collectivizing Religious Free Exercise Rights, Henry L. Chambers Jr

Maryland Law Review

No abstract provided.

Constitutionalizing Fetal Rights: A Salutary Tale From Ireland, Fiona De Londras

Michigan Journal of Gender & Law

In 1983, Ireland became the first country in the world to constitutionalize fetal rights. The 8th Amendment to the Constitution, passed by a referendum of the People, resulted in constitutional protection for “the right to life of the unborn,” which was deemed “equal” to the right to life of the “mother.” Since then, enshrining fetal rights in constitutions and in legislation has emerged as a key part of anti-abortion campaigning. This Article traces the constitutionalization of fetal rights in Ireland and its implications for law, politics, and women. In so doing, it provides a salutary tale of such an approach. …

Some Dilemmas In Drawing The Public/Private Distinction In New Deal Era State Constitutional Law, Keith Whittington

Maryland Law Review

No abstract provided.

Evangelical Reform And The Paradoxical Origins Of The Right To Privacy, John W. Compton

Maryland Law Review

No abstract provided.

The Federalist Provenance Of The Principle Of Privacy, Elvin T. Lim

Maryland Law Review

The right to privacy is the centerpiece of modern liberal constitutional thought in the United States. But liberals rarely invoke “the Founding” to justify this right, as if conceding that the right to privacy was somehow a radical departure from “original meaning,” perhaps pulled out of the hat by “activist” judges taking great interpretive liberties with the constitutional text. Far from being an unorthodox and modern invention, I argue here that privacy is a principle grounded in the very architecture of the Constitution as enumerated in its Articles, perhaps even more so than in particular sections of the Bill of …

The Seeds Of Change: Popular Protests As Constitutional Moments, Juliano Zaiden Benvindo

Marquette Law Review

Bruce Ackerman’s influential theory of “dualist democracy” posits that in American history some extraordinary moments of constitution- making are “constitutional moments,” distinguishable from other periods of ordinary lawmaking. What is missing from the Ackermanian account of constitutional moments, however, is a deeper appreciation of the nature of popular protests, specifically that they may sometimes constitute the core of a constitutional moment, but on other occasions, they may serve as a very different inflection point in the evolution of a constitutional democracy. Up until now, the legal literature has not devoted much attention to such application of Ackerman’s theory. In this …