Constitutional Law Commons^™

Constitution Day Lectures, Maxwell L. Stearns, Paula A. Monopoli, Larry S. Gibson, Robert Koulish, David J. Maher

Maryland Law Review Online

No abstract provided.

Normative History And Congress's Enforcement Power Under The Reconstruction Amendments, Edward Cantu

Faculty Works

As an originalist matter, what degree of logistical power did the Framers of the Reconstruction Amendments want Congress to have in actualizing the substantive guarantees of those amendments? In the 1990s the Court, seeking to revive its federalism vigilance, answered: "relatively limited power." Scholars pounced, and it quickly became "settled" in the scholarly literature that the Court had misread the historical record regarding the Framers' intent. Despite the scholarly reactions, the Roberts Court has carried the Rehnquist Court's torch on this interpretative matter. As such, strident accusations of conservative judicial activism toward the Roberts Court have paralleled the charges leveled …

Cultural Democracy And The First Amendment, Jack M. Balkin

Northwestern University Law Review

Freedom of speech secures cultural democracy as well as political democracy. Just as it is important to make state power accountable to citizens, it is also important to give people a say over the development of forms of cultural power that transcend the state. In a free society, people should have the right to participate in the forms of meaning-making that shape who they are and that help constitute them as individuals.

The digital age shows the advantages of a cultural theory over purely democracy-based theories. First, the cultural account offers a more convincing explanation of why expression that seems …

The Modern Treaty-Executing Power: Constitutional Complexities In Contemporary Global Governance, Carlo Felizardo

Northwestern University Law Review

Treaties have evolved significantly since the ratification of the United States Constitution, leading to uncertainty as to the constitutional limits on their domestic execution. This Note adapts existing constitutional doctrine on treaty execution to two distinct complications arising in the contemporary treaty regime. First, voluntary treaties imposing aspirational obligations on signatories raise the issue of the extent of obligations that Congress may domestically enforce by federal statute. Second, originating treaties which create international organizations and authorize them to adopt rule- and adjudication-type post-treaty pronouncements bring up a question of when, if ever, to incorporate those pronouncements into U.S. law, and …

Standing Up For Legislators: Reevaluating Legislator Standing In The Wake Of Kerr V. Hickenlooper, William D. Gohl

Northwestern University Law Review

Hornbook constitutional law establishes that Congress and state legislatures are bodies of limited, enumerated powers, and common sense suggests they should get their act together and exercise them more often. But should legislators be permitted to sue in order to exercise their powers when another branch of government infringes on them unconstitutionally, or the body they represent unconstitutionally limits them? This Note argues that, at least in certain circumstances, they should. Following on the heels of the Tenth Circuit’s recent treatment of the issue in its Kerr v. Hickenlooper decisions, this Note proposes a redefinition of the legislator standing doctrine …

Without Unnecessary Delay: Using Army Regulation 190–8 To Curtail Extended Detention At Sea, Meghan Claire Hammond

Northwestern University Law Review

This Note analyzes instances of U.S. detention of suspected terrorists while at sea as an alternative to Guantánamo, and how this at-sea detention fits in the interplay of U.S. statutory law, procedural law, and applicable international law. Of particular interest is the dual use of military and civilian legal regimes to create a procedural-protection-free zone on board U.S. warships during a detainee’s transfer from their place of capture to the U.S. court system. The Note concludes that U.S. Army Regulation 190–8 contains language of which the purpose and intent may be analogized to the Federal Rules of Criminal Procedure requirements …

War By Legislation: The Constitutionality Of Congressional Regulation Of Detentions In Armed Conflicts, Christopher M. Ford

Northwestern University Law Review

In this essay, Ford considers provisions of the 2016 National Defense Authorization Act (NDAA) which place restrictions on the disposition of detainees held in Guantánamo Bay. These provisions raise substantial separation of powers issues regarding the ability of Congress to restrict detention operations of the Executive. These restrictions, and similar restrictions found in earlier NDAAs, specifically implicate the Executive's powers in foreign affairs and as Commander in Chief. Ford concludes that, with the exception of a similar provision found in the 2013 NDAA, the restrictions are constitutional.

The First Amendment And The Police In The Digital Age, Kermit V. Lipez

The Journal of Appellate Practice and Process

No abstract provided.

Constitutional Law—Extraditing The Foreign Fugitive: Disentitlement In Civil Forfeiture, United States V. All Assets Listed In Attachment A, 89 F. Supp. 3d 817 (E.D. Va. 2015), Nicole Murray

University of Arkansas at Little Rock Law Review

No abstract provided.

Exploiting Ambiguity In The Supreme Court: Cutting Through The Fifth Amendment With Transferable Development Rights, Trevor D. Vincent

William & Mary Law Review

No abstract provided.

From Economic Inequality To Economic Freedom: Constitutional Political Economy In The New Gilded Age, K. Sabeel Rahman

Faculty Scholarship

No abstract provided.

Supervised Release, Sex-Offender Treatment Programs, And Substantive Due Process, Max B. Bernstein

Fordham Law Review

This Note argues that mandated PPG testing should be eliminated as a condition of federal supervised release. The test infringes on a constitutionally protected liberty interest against unwanted bodily intrusions and, as only the Second Circuit has held, any condition of supervised release that infringes on a constitutionally protected right may be mandated only where it is narrowly tailored to serve a compelling government interest. Because there are a number of viable, less intrusive alternatives, PPG testing as it stands today is not narrowly tailored enough to serve a compelling government interest.

The Death Knell For The Death Penalty And The Significance Of Global Realism To Its Abolition From Glossip V. Gross To Brumfield V. Cain, Linda A. Malone

Faculty Publications

The Supreme Court’s jurisprudence regarding the death penalty, whether or not cruel, has most certainly been unusual in the annals of criminal punishment. In the short span of four years, the Court foreclosed and then reopened this form of punishment in Furman v. Georgia and Gregg v. Georgia. One year later the Court would categorically exclude the punishment for the rape of an adult. Five years later the Court would again preclude the punishment, for any defendant convicted of felony-murder who did not participate or share in the homicidal act or intent. In 1986 the Court would struggle with …

The Senate Has No Constitutional Obligation To Consider Nominees, Jonathan H. Adler

Faculty Publications

[After Justice Antonin Scalia's death in 2016 and i]n response to the Senate Republican leadership's stated intention to refuse to consider any nominee to replace Justice Scalia, some began to argue that the Senate has a constitutional obligation to act on a Supreme Court nomination.

The argument that the Senate has a constitutional obligation to act on a Supreme Court nomination is anything but "clear." This claim finds no support in the relevant constitutional text, constitutional structure, or the history of judicial nominations. While there are strong policy and prudential arguments that the Senate should promptly consider any and all …

Foreword, Cassandra Myers

Northwestern University Law Review

No abstract provided.

Multifactoral Free Speech, Alexander Tsesis

Northwestern University Law Review

This Article presents a multifactoral approach to free speech analysis. Difficult cases present a variety of challenges that require judges to weigh concerns for the protection of robust dialogue, especially about public issues, against concerns that sound in common law (such as reputation), statutory law (such as repose against harassment), and in constitutional law (such as copyright). Even when speech is implicated, the Court should aim to resolve other relevant individual and social issues arising from litigation. Focusing only on free speech categories is likely to discount substantial, and sometimes compelling, social concerns warranting reflection, analysis, and application. Examining the …

Apple Watch-Ing You: Why Wearable Technology Should Be Federally Regulated, Grant Arnow

Loyola of Los Angeles Law Review

No abstract provided.

An Empirical Study Of Implicit Takings., James E. Krier, Stewart E. Sterk

Articles

Takings scholarship has long focused on the niceties of Supreme Court doctrine, while ignoring the operation of takings law "on the ground" in the state and lower federal courts, which together decide the vast bulk of all takings cases. This study, based primarily on an empirical analysis of more than 2000 reported decisions ovcr the period 1979 through 2012, attempts to fill that void. This study establishes that the Supreme Court's categorical rules govern almost no state takings cases, and that takings claims based on government regulation almost invariably fail. By contrast, when takings claims arise out of government action …

An Empirical Study Of Implicit Takings, James E. Krier, Stewart E. Sterk

Articles

Takings scholarship has long focused on the niceties of Supreme Court doctrine, while ignoring the operation of takings law “on the ground” – in the state and lower federal courts, who together decide the vast bulk of all takings cases. This study, based primarily on an empirical analysis of more than 2,000 reported decisions over the period 1979 through June 2012, attempts to fill that void.The study establishes that the Supreme Court’s categorical rules govern almost no cases, and that takings claims based on government regulation almost invariably fail. By contrast, when takings claims arise out of government action other …

Tinjauan Hukum Eksistensi Dari Undang-Undang Nomor 8 Tahun 2015 Setelah 25 Kali Pengujian Undangundang Di Mahkamah Konstitusi Pada Tahun 2015, Achmadudin Rajab

Jurnal Hukum & Pembangunan

Direct regional election is the method chosen by the majority of Indonesian to percieve the phrase “democratically elected.” Implementation of simultaneous regional election is governed by Law No. 8 of 2015, which is the amendment of Law No. 1 of 2015. The reason on why the people prefer direct regional election is formation and implication of its legitimacy. Head of local government requires its own legitimacy, so that is why direct election by the people is needed. This is also inline with interpretation of democratic election by the majority of Indonesian people. Moreover, since the first implementation of simultaneous regional …

September 29, 2016: A Nihilistic Election, Bruce Ledewitz

Hallowed Secularism

Blog post, “A Nihilistic Election“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Schwartz V. Lopez, 132 Nev. Adv. Op. 73 (Sep. 29, 2016), Scott Cardenas

Nevada Supreme Court Summaries

The Court determined that (1) Article 11, Section 1 of the Nevada Constitution does not limit the Legislature’s discretion in encouraging other methods of education, and based on this, the Education Savings Account (“ESA”) program is not contrary to Article 11, Section 2 which requires the Legislature to “provide for a uniform system of common schools”; and that (2) the funds deposited in the education savings account are not “public funds” subject to Article 11, Section 10; and finally that (3) the ESA program violates the mandate under Section 2 and 6 to fund public education because SB 302 does …

Newsroom: Time: Bogus On Second Amendment 09/28/2016, Arica L. Coleman, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Testimony On Unmanned Aircraft Systems Rules And Regulations, Stephen Henderson

Other Faculty Publications

Chairman Barrington, Vice Chair Brooks, members of the Committee on Public Safety, Senators, and distinguished guests, I am grateful for the opportunity to speak to you today about unmanned aerial systems, or drones, and more particularly about their federal constitutional implications and what might be the constitutional restrictions on any legislation you might like to enact. I am the Judge Haskell A. Holloman Professor of Law at the University of Oklahoma, where my teaching and research focus on criminal law and procedure and privacy, including the constitutional rights pertaining thereto.My topic is not an easy one. The constitutional law is …

Note: Anti-Discrimination Legislation In Housing

The Catholic Lawyer

No abstract provided.

An Exposition And Analysis Of Policy Arguments Against Federal Aid To Parochial Schools, Arthur A. North, S.J.

The Catholic Lawyer

No abstract provided.

Separation Of Church And State - A Constitutional View, Paul G. Kauper

The Catholic Lawyer

No abstract provided.

Recent Decision: Reapportionment And The Courts

The Catholic Lawyer

No abstract provided.

September 22, 2016: An Open Letter To Fred Barnes, Bruce Ledewitz

Hallowed Secularism

Blog post, “An Open Letter to Fred Barnes“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

September 21, 2016: You Have A Moral Obligation To Vote For Hillary Clinton, Bruce Ledewitz

Hallowed Secularism

Blog post, “You Have a Moral Obligation to Vote for Hillary Clinton“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.