Constitutional Law Commons^™

The Supreme Court And Religious Liberty, Joseph D. Kearney

Marquette Law Review

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Neuro Lie Detection And Mental Privacy, Madison Kilbride, Jason Iuliano

Maryland Law Review

New technologies inevitably raise novel legal questions. This is particularly true of technologies, such as neuro lie detection, that offer new ways to investigate crime. Recently, a number of scholars have asked whether neuro lie detection testing is constitutional. So far, the debate has focused on the Fifth Amendment—specifically whether evidence gathered through neuro lie detection is constitutionally admissible because it is “physical” in nature or inadmissible because it is “testimonial” in nature. Under current Supreme Court doctrine, this Fifth Amendment debate is intractable. However, the more fundamental question of whether the government can compel individuals to undergo a neuro …

Privacy, Police Power, And The Growth Of Public Power In The Early Twentieth Century: A Not So Unlikely Coexistence, Carol Nackenoff

Maryland Law Review

No abstract provided.

A Conceptual Disaster Zone Indeed: The Incoherence Of The State And The Need For State Action Doctrine(S), Brookes Brown

Maryland Law Review

No abstract provided.

Emergency Takings, Brian Lee

Faculty Scholarship

No abstract provided.

Tone Deaf To The Past: More Qualms About Public Meaning Originalism, Jack Rakove

Fordham Law Review

    With some apologies for a vast degree of oversimplification, let us stipulate that there are two main forms of originalism. One is known as “semantic” or “public meaning” originalism. Its leading advocates include Lawrence Solum, Keith Whittington, and Randy Barnett (professional friends, all). The leading premise of semantic originalism is that the meaning of the constitutional text—or, more specifically, of its individual clauses—was fixed at the moment of its adoption. Under this view, the goal of constitutional interpretation is to recover that original meaning, and the best way to do that pivots on reconstructing how an informed reader, whether a …

The Lost History Of The Political Question Doctrine, Tara Leigh Grove

Faculty Publications

This Article challenges the conventional narrative about the political question doctrine. Scholars commonly assert that the doctrine, which instructs that certain constitutional questions are “committed” to Congress or to the executive branch, has been part of our constitutional system since the early nineteenth century. Furthermore, scholars argue that the doctrine is at odds with the current Supreme Court’s view of itself as the “supreme expositor” of all constitutional questions. This Article calls into question both claims. The Article demonstrates, first, that the current political question doctrine does not have the historical pedigree that scholars attribute to it. In the nineteenth …

Historians And The New Originalism: Contextualism, Historicism, And Constitutional Meaning, Martin S. Flaherty

Fordham Law Review

    Toward that end, this Foreword addresses three matters. First, it considers why the use of history in constitutional interpretation is inescapable. Next, it suggests that the Essays in this forum do not go far enough in debunking the idea of “public meaning” originalism as a serious alternative to previous approaches. Finally, the balance of this Foreword reviews the also perhaps inescapable misuses of history that constitutional interpretation invites and considers the type of misuse that public meaning originalism represents.

“To Assemble Together For Their Common Good”: History, Ethnography, And The Original Meanings Of The Rights Of Assembly And Speech, Saul Cornell

Fordham Law Review

    The Whiskey Rebellion is not generally a major focus in constitutional histories or casebooks. Given this fact, it is hardly surprising that the 1795 case Respublica v. Montgomery seldom figures as more than a minor footnote in scholarly writing about early American constitutional development, if it receives any attention at all. The case has little precedential value for modern First Amendment doctrine and only obliquely implicates larger jurisprudential questions about the rights of assembly and freedom of expression. In strictly doctrinal terms, Montgomery is primarily about the obligation of a justice of the peace to put down a riot, not …

Historicism And Holism: Failures Of Originalist Translation, Jonathan Gienapp

Fordham Law Review

    For as long as the U.S. Constitution has existed, Americans have appealed to the history of its creation to interpret its meaning. But only since the advent of originalism—the well-known constitutional theory that requires interpreting the Constitution today in accordance with its original meaning—has historical study been so immediately implicated by constitutional interpretation. Despite potential, though, for meaningful exchange between originalists and historians, little has taken place. That originalism plays an ever-growing role in contemporary political culture only makes the lack of dialogue all the more unfortunate.

Outsourcing The Law: History And The Disciplinary Limits Of Constitutional Reasoning, Helen Irving

Fordham Law Review

    Debates about the use of history in constitutional interpretation find their primary nourishment in the originalism debate. This has generated a vast amount of literature, but also narrowed the terms of the debate. Originalism is a normative commitment wrapped in a questionable methodological confidence. Regardless of the multiple forms originalism takes, originalists are confident that the meaning (in the sense of intention) that animated the framing of the Constitution can be ascertained and, indeed, that they can ascertain it. The debate has largely focused, then, on whether modern-day scholars and jurists can ascertain original historical meaning or, alternatively, whether they …

Specifically Authorized By Binding Precedent Does Not Mean Suggested By Persuasive Precedent: Applying Good-Faith Exception After Davis V. United States, Zachary C. Bolitho

West Virginia Law Review

No abstract provided.

Conflicts Originalism: The "Original Content" Of The Full Faith And Credit Clause And The Compulsory Choice Of Marriage Law, J. Sephen Clark

West Virginia Law Review

No abstract provided.

A Critical Assessment Of The Role Of The Venice Commission In Processes Of Domestic Constitutional Reform, Maartje De Visser

Research Collection Yong Pung How School Of Law

On January 26, 2014, an overwhelming majority of the National Constituent Assembly of Tunisia approved the country's new constitution. Drafted in the aftermath of the Tunisian revolution, the constitution received considerable international critical acclaim, regarding the manner in which the text had been drafted and adopted as well as its content, notably the entrenchment of a host of fundamental rights and liberties. Comparisons have inevitably been drawn with Egypt's new constitution and those of other Arab nations, with the Tunisian text hailed as one of the most progressive in the region, providing the foundations for a modern and credible democracy. …

Threshold Liberty, Dawinder S. Sidhu

Cardozo Law Review

The Supreme Court's Thirteenth Amendment precedent is no longer sustainable. For starters, that precedent - which holds that the Amendment prohibits the "badges and incidents" of slavery, and that Congress has the power to "rationally" determine what constitutes a "badge or incident" of slavery - raises serious federalism and separation of powers concerns. To make matters worse, the Court itself has recently restricted the enforcement provisions of the Fourteenth Amendment (in City of Boerne v. Flores) and Fifteenth Amendment (in Shelby County v. Holder), rendering the generous bounds of the Thirteenth Amendment enforcement power an outlier among the …

Taxing Legalized Marijuana: How Courts Should Treat Drug Tax Statutes In Light Of The Fifth Amendment's Self-Incrimination Clause And Executive Non-Enforcement Of The Controlled Substances Act, Joseph A. Goldstein

Cardozo Law Review

No abstract provided.

Title Ix Giveth And The Religious Exemption Taketh Away: How The Religious Exemption Eviscerates The Protection Afforded Transgender Students Under Title Ix, Amanda Bryk

Cardozo Law Review

No abstract provided.

The Moral Reading All Down The Line, James E. Fleming

Faculty Scholarship

Michael W. McConnell has written an elegant and illuminating article about constitutional interpretation.' He seeks to show how five major methodological approaches fit together. The five approaches he discusses are: "originalism, precedent, longstanding practice, judicial restraint, and living constitutionalism (here called the normative approach)."'2 He distinguishes two camps with respect to these approaches. One camp, he notes, "advocates for (or against) a particular approach ... on the assumption that these approaches are mutually inconsistent and that the task is to determine which is best . . . .3 The other camp "treats the various common approaches as mere tools in …

Time, Institutions, And Adjudication, Gary S. Lawson

Faculty Scholarship

Some of my earliest and fondest memories regarding constitutional theory involve Mike McConnell. He was a participant at the very first Federalist Society conference in 1982, at a time when the entire universe of conservative constitutional theorists fit comfortably in the front of one classroom. More importantly, at another Federalist Society conference in 1987, he gave a speech on constitutional interpretation that, unbeknownst to him, profoundly shaped my entire intellectual approach to the field by emphasizing the obvious but oftoverlooked point that different kinds of documents call for different kinds of interpretative methods.1 In 2015, it is more than an …

You Have The Right To Be Confused! Understanding Miranda After 50 Years, Bryan Taylor

Pace Law Review

Part I of this article briefly explores the background and historical context that ultimately led to the Miranda decision. As the late Dr. Carl Sagan once said, “you have to know the past to understand the present.” Understanding the circumstances and cases leading up to Miranda helps in the overall application of Miranda to cases of today. Part II addresses whether a statement should be allowed into evidence and provides a practical working approach to conduct a Miranda analysis. This innovative approach provides a step-by-step process in determining the admissibility of statements pursuant to Miranda and its progeny. This process …

Not In My Hospital: The Future Of State Statutes Requiring Abortion Providers To Maintain Admitting Privileges At Local Hospitals, Daniel J. Glass

Akron Law Review

In recent years, state legislatures have enacted a variety of restrictive statutes making it more difficult for abortion providers to serve their patients, typically in the name of health and safety. Those opposing these restrictive statutes commonly refer to them as Targeted Regulation of Abortion Providers (TRAP) laws. This Note discusses admitting privileges statutes, which require that abortion providers maintain permissions with a local hospital to admit and treat their patients. Admitting privileges statutes have been challenged in federal courts, but the resulting decisions have been inconsistent. This Note compares the analysis used by federal circuits and district courts in …

Fundamental Unenumerated Rights Under The Ninth Amendment And The Privileges Or Immunities Clause, Adam Lamparello

Akron Law Review

The failure to link the Ninth Amendment and Privileges or Immunities Clause for the purpose of creating unenumerated fundamental rights has been a persistent but rarely discussed aspect of the Court’s jurisprudence. That should change. There need not be an ongoing tension between the Court’s counter-majoritarian role and the authority of states to govern through the democratic process. If the Constitution’s text gives the Court a solid foundation upon which to recognize new rights and thereby create a more just society, then the exercise of that power is fundamentally democratic. The Ninth Amendment and Privileges or Immunities Clause provides that …

The Five Days In June When Values Died In American Law, Bruce Ledewitz

Akron Law Review

During a five day period in June, 1992, every Justice on the United States Supreme Court joined one or the other of two opinions that denied the objectivity of values—either Justice Kennedy’s majority opinion in Lee v. Weisman or Justice Scalia’s dissent in Planned Parenthood v. Casey. Both of these opinions expressed the view that normative judgments are merely human constructions. This moment represents symbolically the death of values in American law. The arrival of nihilism at the heart of American law is a world-changing event for law that must be acknowledged.

The death of values was announced by …

Liberty At The Borders Of Private Law, Donald J. Smythe

Akron Law Review

Liberty is both dependent upon and limited by the State. The State protects individuals from the coercion of others, but paradoxically, it must exercise coercion itself in doing so. Unfortunately, the reliance on the State to deter coercion raises the possibility that the State’s powers of coercion might be abused. There is, not surprisingly, therefore, a wide range of literature on the relationship between law and liberty, but most of it focuses on the relationship between public law and liberty. This Article focuses on the relationship between private law and liberty. Private laws are enforced by courts. Since the judiciary …

The Water Cycle Boogie: Clean Water Act Jurisdiction, Home Rule, And Water Law, Colin W. Maguire

Et Cetera

The EPA and US Army Corps of Engineers’ agency rule regarding the definition of “Waters of the United States” under the Clean Water Act increased jurisdictional assertions by as much as 5%. What’s the big deal? This violates the Home Rule of state and local governments. This violation also creates concerns where many property owners are not sure if they need federal permits to develop land under the Clean Water Act. With issues like this new Clean Water Act rule, the drought conditions in the Western U.S., and international concerns regarding fresh water, water law is a critical area which …

The Dtsa: The Litigator's Full-Employment Act, Sharon K. Sandeen

Washington and Lee Law Review Online

Civil litigation is expensive, both for the party bringing suit and the party that must defend against such claims. For a variety of reasons, not the least of which are the usual requests for preliminary relief and protective orders, trade secret litigation is particularly expensive. These costs can have a crippling effect on small businesses and start-up companies that are accused of trade secret misappropriation, often resulting in litigation expenses that exceed the alleged harm to the plaintiff. Such litigation is particularly costly and unjust in cases where the plaintiff asserts rights that, due to common misunderstandings about the limited …

Sexual Minority Stigma And System Justification Theory: How Changing The Status Quo Impacts Marriage And Housing Equality, Jordan A. Blenner

Department of Psychology: Dissertations, Theses, and Student Research

Sexual minorities (i.e. lesbians and gay men) experience systemic discrimination throughout the United States. Prior to the Supreme Court ruling in Obergefell v. Hodges (2015), in many states, same-sex couples could not marry and sexual minorities were not protected from sexual orientation housing discrimination (Human Rights Campaign, 2015). The current, two-experiment study applied Jost and Banaji’s (1994) System Justification Theory to marriage and housing discrimination. When sexual minorities question dissimilar treatment, thereby threatening the status quo, members of the heterosexual majority rationalize sexual minority discrimination to maintain their dominant status (Alexander, 2001; Brescoll, Uhlmann, & Newman, 2013; Citizens for Equal …

November 24, 2015: I Guess Trump Really Could Win The Republican Nomination, Bruce Ledewitz

Hallowed Secularism

Blog post, “I Guess Trump Really Could Win the Republican Nomination“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Doe V. Friedman, Neal Hendel, Anat Baron, Uri Shoham

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.]

A transgender woman ended her life, and, in documents she left behind, she made clear that she wished for her body to be cremated and that most of her ashes be scattered at sea and some be buried in a place for her memory. In her will she asked that the First Respondent act to execute her wishes – this, among others, because she …

November 22, 2015: Reason Is Not An Alternative To Religion, Bruce Ledewitz

Hallowed Secularism

Blog post, “ Reason is Not an Alternative to Religion“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.