Constitutional Law Commons^™

Hunting And The Second Amendment, Joseph Blocher

Faculty Scholarship

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 …

The Health Insurance Mandate - A Tax Or A Taking, Karl Manheim

UC Law Constitutional Quarterly

The Patient Protection and Affordable Care Act requires Americans to have or buy health insurance. The Act, particularly the "individual mandate," has generated enormous political controversy and constitutional litigation. The House of Representatives has voted 54 times to repeal the law, and President Obama's implementation has spurred calls for his impeachment.

The Act has already reached the Supreme Court twice. In National Federation of Independent Business v. Sebelius ("NFIB"), the Supreme Court held the mandate could not be sustained as an exercise of Congress' power over interstate commerce, but was valid under the Tax and Spend Clause. Other constitutional challenges …

Eugenics Then And Now: Constitutional Limits On The Use Of Reproductive Screening Technologies, Hannah Lou

UC Law Constitutional Quarterly

Advancements in assisted reproductive technologies ("ARTs") have allowed prospective parents to exercise unprecedented control over the reproductive process and their progeny. Among ARTs, prenatal screening and diagnosis is a particularly powerful category of tools due to its mass accessibility, non-invasiveness, and availability before conception and during pregnancy. However, increased adoption of these tools also forces parents and societies to confront a broad range of ethical, legal, and personal questions about how genetic information should be used to screen for or preselect the traits of prospective offspring.

This Note advocates that based on historical experience, previous court decisions, and modern evolution …

The Unconstitutionality Of The Current Housing Arrangements For Intersex Prisoners, Nicole Antonopoulos

UC Law Constitutional Quarterly

The perpetuation of a binary society with regards to sex creates problems for intersex persons who do not easily categorize as male or female. The current housing and treatment of intersex prisoners are based partly on this classic male-female dichotomy. This Note sheds light on sex as a spectrum, and examines the potential constitutional violations that arise from the current prison housing arrangements and treatment. It also analyzes the experiences of intersex prisoner Miki Ann DiMarco and her constitutional challenges as brought forward in DiMarco v. Wyoming Department of Corrections. Additionally, this Note suggests that intersex discrimination is a form …

Smile For The Camera: The Revenge Pornography Dilemma, California's Approach, And Its Constitutionality, Snehal Desai

UC Law Constitutional Quarterly

Revenge pornography is an increasingly prevalent form of cyberharassment, in which embarrassing and sexually explicit pictures and videos are posted on the internet without the consent of the depicted individual. Due to the First Amendment's protection of speech and expression, victims have had little legal recourse against their cyber-harassers. Many states have started to pass laws prohibiting revenge pornography, which have fortunately created some protections for victims. However, the recent passage of such statutes has also led to the debate about their constitutionality.

This Note first examines revenge pornography from various First Amendment perspectives, concluding that courts should carve out …

Beyond Coordination: Defining Indirect Campaign Contributions For The Super Pac Era, Brent Ferguson

UC Law Constitutional Quarterly

This Article addresses a legal issue that has rapidly gained relevance since Citizens United and the proliferation of Super PACs: the constitutionally acceptable boundaries of treating campaign expenditures as contributions, and therefore allowing them to be limited in amount. The government may not limit Super PACs' spending because such groups may not legally coordinate with candidates, but Super PACs and other organizations have blurred the line of independence by spending millions on single candidates and employing people with close ties to the supported candidate. Current rules prevent some of this collaboration, but still allow much of it to occur.

Because …

The Politics Of Statutory Interpretation: The Hayekian Foundations Of Justice Antonin Scalia's Jurisprudence, Gautam Bhatia

UC Law Constitutional Quarterly

During his time on the Court, Justice Scalia has developed a uniquely personal approach to statutory interpretation, constituted by diverse aspects such as textualism, a rejection of legislative history, original public meaning, the use of dictionaries, a rejection of precedent, the rule of lenity, and so on. Over the years, individual aspects of his approach have been subjected to critical scrutiny. There has not yet, however, been an attempt to synthesize the various strands of his jurisprudence into one coherent framework, and to examine the normative foundations that underlie it. The need is particularly acute, because in 2012, Justice Scalia, …

Airbnb And The Housing Segment Of The Modern Sharing Economy: Are Short-Term Rental Restrictions An Unconstitutional Taking, Jamila Jefferson-Jones

UC Law Constitutional Quarterly

The last few years have seen a reinvention of the economy through the growth of the "sharing economy" or the "new economy." The sharing economy has redefined consumption in the housing context in a manner that implicates the exclusivity of the use and enjoyment of real property. However, there is a brewing conflict between this genesis and the realities of economic regulation. Recently, controversy erupted in New York after New York Attorney General Eric Schneiderman subpoenaed Airbnb's records requesting data on its hosts for the previous three years. Schneiderman contended that Airbnb hosts in New York City were violating a …

The New Data Marketplace: Protecting Personal Data, Electronic Communications, And Individual Privacy In The Age Of Mass Surveillance Through A Return To A Property-Based Approach To The Fourth Amendment, Megan Blass

UC Law Constitutional Quarterly

The Supreme Court's Fourth Amendment jurisprudence is often critiqued, particularly the Court's refusal to acknowledge the distinction between secrecy, limited disclosure, and public disclosure. The Snowden leaks only fueled the fervor. With the revelations about the National Security Agency's PRISM, XKeyscore, and similar mass surveillance programs came renewed concern and discussion about the legal and regulatory framework protecting Americans' privacy. Privacy is en vogue.

The critiques of Katz v. United States and celebrations of Justice Sotomayor's concurrence in United States v. Jones are well-worn. As an alternative, this Note proposes vesting property rights in personal data and electronic communications to …

Protecting Immigrants From Prolonged Pre-Removal Detention: When It Depends Is No Longer Reasonable, Michelle Firmacion

UC Law Constitutional Quarterly

Most undocumented immigrants who are detained pending resolution of their removal proceedings are neither criminals nor actually deportable. Many are women and children with legitimate claims for remaining in the United Sates. Yet thousands of undocumented immigrants are detained for more than six months, longer than some convicted criminals. Because of this, one might ask: how "civil" is civil immigration detention?

In 2013, the United States Court of Appeals for the Ninth Circuit imposed a bright-line rule in Rodriguez v. Robbins, establishing an undocumented immigrant's right to a bond hearing when his detention exceeds six months. This rule ensures that …

Why California's Second-Degree Felony-Murder Rule Is Now Void For Vagueness, Evan Tsen Lee

UC Law Constitutional Quarterly

In late June 2015, the U.S. Supreme Court struck down part of a federal three-strikes statute as unconstitutionally vague. Although that would seem to have nothing to do with the felony-murder rule, since the two rules would never come up in the same case, in fact the Court's rationale for finding the federal statute vague applies to California's unique seconddegree felony-murder rule all the way down the line. Like other states, California insists that the predicate felony in felony-murder be "dangerous to human life." Unlike any other state, however, California decides which felonies are dangerous not by looking at the …

Emtala: Medicare's Unconstitutional Condition On Hospitals, E. H. Morreim

UC Law Constitutional Quarterly

The Emergency Medical Treatment and Active Labor Act ("EMTALA") requires every Medicare-contracting hospital with an emergency department ("ED") to screen and stabilize anyone with an emergency condition, regardless of ability to pay. Enacted in 1986, EMTALA vastly expanded Medicare's initial focus on elderly and disabled beneficiaries and imposed enormous financial liabilities. Neither the Supreme Court nor any Circuits have addressed EMTALA's constitutionality. Although this longstanding statute may not be reconfigured any time soon, it is important to consider the constitutional legitimacy of legislation carrying such an enormous and growing impact.

This Article proposes that EMTALA violates the Fifth Amendment's Takings …

Using The Endangered Species Act To Preempt Constitutional Challenges To Gmo Regulation, Caitlin Kelly-Garrick

UC Law Constitutional Quarterly

Scientific studies show that genetically modified organisms ("GMOs") have an adverse impact on biodiversity, especially pollinating species. Enforcement of the laws regulating the introduction of GMOs into the environment has not kept pace with this finding. Under existing judicial interpretation of the GMO regulatory framework, a loophole exists by which no single agency is responsible for assessing the cumulative environmental impacts of GMOs on biodiversity. Section 7 of the Endangered Species Act ("ESA") requires the government to consult with the Fish and Wildlife Service ("FWS") when an action might endanger the continued survival of a species. This paper argues that …

Freedom Of Association And Ngo Law: The Constitutionality Of The 2009 Zambian Ngo Law, Muna Ndulo

Southern African Journal of Policy and Development

Freedom of Association is entrenched in the Zambian Constitution and in several International Law instruments to which Zambia is a party. By hindering the independent and effective operations of NGOs, the Non-Governmental Organizations (NGO) Act of 2009 unjustifiably curtails this freedom. This paper examines the NGO Act and documents the various instances in which it imposes an unconstitutional, unjustifiable and disproportionate hindrance on the ability of NGOs to operate effectively. It argues that the Act threatens to roll back the enormous gains that NGOs have made and continue to make in fermenting accountable, democratic and effective governance in Zambia.

Prior Sexual Misconduct Evidence In State Courts: Constitutional And Common Law Challenges, Michael L. Smith

Faculty Articles

Prosecuting sex crimes is a sensitive, challenging process, and many who commit these crimes end up going unpunished. While a defendant may have a history of prior sexual misconduct, the rules of evidence in most states and at the federal level generally prohibit the introduction of prior misconduct to show a defendant's propensity to commit a present crime. In response, the federal government and numerous state legislatures have adopted rules of evidence that permit the introduction of prior sexual misconduct in cases where a defendant is charged with a sexual crime.

While commentators have written in great detail about federal …

Enforcing The Fifteenth Amendment, Ellen D. Katz

Book Chapters

This chapter examines efforts to enforce the Fifteenth Amendment in the period from United States v. Reese through Shelby County v. Holder. Reese and Shelby County expose the most rigorous stance the Court has employed to review congressional efforts to enforce the Fifteenth Amendment, while the years in-between show Congress and the Court working more in tandem, at times displaying remarkable indifference to blatant violations of the Fifteenth Amendment, and elsewhere working cooperatively to help vindicate the Amendment’s promise. Defying simple explanation, this vacillation between cooperation and resistance captures the complex and deeply consequential way concerns about federal power, …

We Should Use 'Cause Of Action' More Carefully: A Review Of John F. Preis, How The Federal Cause Of Action Relates To Rights, Remedies, And Jurisdiction, Lumen N. Mulligan

Faculty Works

No abstract provided.

On Class-Not-Race, Samuel R. Bagenstos

Book Chapters

Throughout the civil rights era, strong voices have argued that policy interventions should focus on class or socioeconomic status, not race. At times, this position-taking has seemed merely tactical, opportunistic, or in bad faith. Many who have opposed race-based civil rights interventions on this basis have not turned around to support robust efforts to reduce class-based or socioeconomic inequality. That sort of opportunism is interesting and important for understanding policy debates in civil rights, but it is not my focus here. I am more interested here in the people who clearly mean it. For example, President Lyndon Baines Johnson—who can …

Moving Beyond Race: The Joint Committee On Reconstruction And The Drafting Of The Fourteenth Amendment, Earl M. Maltz

UC Law Constitutional Quarterly

April 28th, 1866 was by any standard, a pivotal moment in the evolution of American constitutional law. On that date, the Joint Committee on Reconstruction voted to replace a provision of the proposed Fourteenth Amendment that focused only on racial discrimination with the current text of section one. This decision created the predicate for much of modern constitutional law, including but not limited to the Court's treatment of gender discrimination, abortion, gay rights, criminal procedure, and freedom of speech.

This article provides a detailed analysis of the forces that shaped the Joint Committee's decision. The article contends that the decision …

Racism 4.0, Civity, And Re-Constitution, Palma Joy Strand

UC Law Constitutional Quarterly

Racism is deeply imbedded in our culture and can be grouped into four distinct manifestations over the multi-century arc of our nation's history. These manifestations are identified as Racism 1.0, Racism 2.0, Racism 3.0, and-the current "operating system"--Racism 4.0. Racism 1.0 and 2.0 include slavery and the reign of violence and lynching during which Whites sought to control and marginalize Blacks, primarily but not exclusively in the South. In the South, Racism 3.0 took the form of "Jim Crow," legislatively enacted separation by race with "separate but equal" rhetoric and "separate and unequal" reality. The Civil Rights Movement and its …

A Uniform Test Isn't Here Right Now, But Please Leave A Message: How Altering The Spence Symbolic Speech Test Can Better Meet The Needs Of An Expressive Society, Caitlin Housley

Kentucky Law Journal

No abstract provided.

Life, Liberty, And The Pursuit Of Hunting & Fishing: The Implications Of Kentucky's "Right To Hunt" Constitutional Amendment, Young-Eun Park

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Horne V. Usda: The Takings Clause, The Commerce Clause, And The "World's Most Outdated Law", Thomas E. Travis

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

A Survey Of Constitutional Standing In State Courts, Wyatt Sassman

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Reverse Nullification And Executive Discretion, Michael T. Morley

Faculty Scholarship

No abstract provided.

A Nation Of Widening Opportunities: The Civil Rights Act At 50, Ellen D. Katz, Samuel R. Bagenstos

Books

The Civil Rights Act of 1964 was an extraordinary achievement of law, politics, and human rights. On the fiftieth anniversary of the Act's passage, it is appropriate to reflect on the successes and failures of the civil rights project reflected in the statute, as well as on its future directions. This volume represents an attempt to assess the Civil Rights Act's legacy.

On October 11, 2013, a diverse group of civil rights scholars met at the University of Michigan Law School in Ann Arbor to assess the interpretation, development, and administration of civil rights law in the five decades since …

Goveille V. Liberty Mutual: An Opportunity To Correct The Problems Of Erisa Preemption, Edward A. Zelinsky

Articles

No abstract provided.

State Labs Of Federalism And Law Enforcement 'Drone' Use, Chris Jenks

Faculty Journal Articles and Book Chapters

This article reviews and assesses current state legislation regulating law enforcement use of unmanned aerial systems (UAS). The legislation runs the gamut of permissive to restrictive and even utilizes different terms for the same object of regulation, UAS. These laws are the confused and at times even contradictory extension of societal views about UAS. The article reviews the U.S. Supreme Court’s manned aircraft trilogy of cases, California v. Ciraolo, Florida v. Riley, and Dow Chemical v. U.S. and two significant technology based decisions, Kyllo v. U.S. and U.S. v. Jones, and applies them to current state efforts to regulate law …

Under Containment: Preempting State Ebola Quarantine Regulations, Eang Ngov

Faculty Articles

The outbreak of Ebola in Africa and its recent emergence in America has brought to light that the ambit of state sovereignty in the face of federal policy is unsettled in the public health field. Quarantine laws have historically been recognized as an exercise of state police powers and, absent discriminatory uses, courts have afforded much deference to states when the federal government is dormant. This article explores federalism implications when federal and state sovereigns contest the purview of regulating Ebola, other epidemics, and quarantine. This article examines how the federal government can assert supremacy to regulate treatment of epidemics …

Cases Of Conscience: The Supreme Court And Conscientious Objectors To Military Service During The Post World War Ii Era, Robert S. Rutherfurd

Graduate Student Theses, Dissertations, & Professional Papers

This thesis examines the history of American conscientious objectors to military service during the aftermath of World War II. It describes why conscientious objectors were viewed with distrust and suspicion for their refusal to bear arms in defense of the nation and considers how groups such as the American Legion and the Veterans of Foreign Wars attempted to prevent COs from enjoying key benefits of U.S. citizenship by demanding that conscientious objectors be excluded from public employment and denied most forms of government assistance. This thesis focuses on decisions of the United States Supreme Court following World War II that …