Constitutional Law Commons^™

Religion, Sincerity, And Free Exercise, Peter J. Riga

The Catholic Lawyer

No abstract provided.

September 2, 2017: Asking The Wrong Question, Bruce Ledewitz

Hallowed Secularism

Blog post, “Asking the Wrong Question“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

The Cost Of The Text, Richard A. Primus

Articles

Christopher Serkin and Nelson Tebbe's Is the Constitution Special?explores many facets of constitutional interpretation. I will focus here on their observation that constitutional interpretation is "less textual" than statutory interpretation. I place the expression "less textual" in quotation marks because "textual" could mean many things, such that it would often be problematic to characterize one interpretive exercise as more or less textual than another. In Serkin and Tebbe's view, as I understand it, mainstream constitutional interpretation is "less textual " than statutory decisionmaking in that it is less constrained by the words of particular enacted clauses. As a convenient …

Catholic Institutions In Court: The Religion Clauses And Political-Legal Compromise, Angela C. Carmella

West Virginia Law Review

No abstract provided.

Executive Enforcement Discretion And The Separation Of Powers: A Case Study On The Constitutionality Of Daca And Dapa, Louis W. Fisher

West Virginia Law Review

No abstract provided.

Redistricting Reform In Wisconsin To Curtail Gerrymandering: The Wisconsin Impartial Citizens Redistricting Commission, Joseph W. Bukowski

Marquette Law Review

After an extremely partisan gerrymander in 2011, Wisconsin needs redistricting reform in order to eliminate partisan politics from the process. Now more than ever, momentum for change has reached its peak: the Wisconsin legislative maps as drawn in 2011 were ruled unconstitutional in Whitford v. Gill; the Supreme Court has recently ruled in favor of states implementing independent redistricting commissions; and nearly half of the states in the United States are beginning to use independent commissions for redistricting. This Comment proposes a unique approach for Wisconsin to adopt in order to curtail gerrymandering: the Wisconsin Impartial Citizens Redistricting Commission (WICRC). …

The Abraham Lincoln Lecture On Constitutional Law, Steven G. Calabresi

Northwestern University Law Review

These introductory remarks to the Inaugural Abraham Lincoln Lecture on Constitutional Law were delivered at Northwestern Pritzker School of Law on April 6, 2017.

Hyatt V. Franchise Tax Board Of California: Perils Of Undue Disputing Zeal And Undue Immunity For Government-Inflicted Injury, Jeffrey W. Stempel

Nevada Law Journal

No abstract provided.

Debate, Richard Primus, Kevin M. Stack, Christopher Serkin, Nelson Tebbe

Cornell Law Review

No abstract provided.

The Klein Rule Of Decision Puzzle And The Self-Dealing Solution, Evan C. Zoldan

Washington and Lee Law Review

Scholars and courts have struggled to make sense of the Supreme Court’s decision in United States v. Klein, an intriguing but enigmatic opinion concerning the limits of Congress’s ability to interfere with cases pending before the federal courts. Klein is intriguing because its broad and emphatic language suggests significant limits on the power of Congress. Klein is enigmatic because the Court has never again struck down a statute because of Klein or even made clear what principle animates its result. In fact, despite reaffirming the existence of a principle based on Klein, the Court has repeatedly read it …

The Constitutional Right To Collateral Post-Conviction Review, Carlos Manuel Vázquez, Stephen I. Vladeck

Georgetown Law Faculty Publications and Other Works

For years, the prevailing academic and judicial wisdom has held that, between them, Congress and the Supreme Court have rendered post- conviction habeas review all but a dead letter. But in its January 2016 decision in Montgomery v. Louisiana, the Supreme Court may have dramatically upended that understanding in holding—for the first time—that there are at least some cases in which the Constitution itself creates a right to collateral post-conviction review, i.e., cases in which a prisoner seeks to enforce retroactively a “new rule” of substantive constitutional law under the familiar doctrine of Teague v. Lane.

On the …

Fallout From Obergefell: The Dissolution Of Unconventional Adoptions To Pave The Way For Same-Sex Marriage Equality, Jodi B. Mileto

West Virginia Law Review

No abstract provided.

Pinging Into Evidence: The Implications Of Historical Cell Site Location Information, Alexandra C. Smith

West Virginia Law Review

No abstract provided.

Arming The Second Amendment—And Enforcing The Fourteenth, William D. Araiza

Washington and Lee Law Review

This Article considers the timely and important question of Congress’s power to enforce the Second Amendment. Such legislation would test the Court’s current enforcement power doctrine, which ostensibly acknowledges a congressional role in vindicating constitutional rights while insisting on judicial supremacy in stating constitutional meaning. Second Amendment doctrine is complex and, importantly, methodologically varied. That complexity and variety would require the Court to perform a more nuanced, granular approach to the enforcement power than it has thus far in the modern era.

Part II quickly recaps the Court’s Enforcement Clause jurisprudence. It concludes that its most recent enforcement power cases …

Unshackling The Sixth Amendment: How Federalism Frees Our Constitutional Hostages Of The War On Drugs, Christopher Giddens

Nevada Law Journal

No abstract provided.

Applying Strict Scrutiny: An Empirical Analysis Of Free Exercise Cases, Caleb C. Wolanek, Heidi Liu

Montana Law Review

Applying Strict Scrutiny: An Empirical Analysis of Free Exercise Cases

Debating Is The Constitution Special?, Richard Primus, Kevin M. Stack, Christopher Serkin, Nelson Tebbe

Articles

In 1890, Louis Brandeis wrote The Right to Privacy. Within a matter of years, the courts began adopting his theory, creating a newly articulated legal right. This article likely represented the high-water mark of legal academia in terms of real world impact. In recent years, the academy has lost much of its relevance. Chief Justice Roberts ridiculed academic work, suggesting that legal scholarship has become esoteric and irrelevant. This should not be the case. The quality of legal scholars is higher than it has ever been—young scholars now often enter the academy with doctoral degrees in related fields. Likewise, technology …

The Inference From Authority To Interpretive Method In Constitutional And Statutory Domains, Kevin M. Stack

Vanderbilt Law School Faculty Publications

Should courts interpret the Constitution as they interpret statutes? This question has been answered in a wide variety of ways. On the one hand, many scholars and jurists understand constitutional and statutory interpretation as largely overlapping, continuous, or converging. For some, this overlap follows directly from the Constitution's status as a form of legislated law. In this way of thinking, because the Constitution, like a statute, was bargained over and formally adopted, it should be interpreted in accordance with general principles applicable to legislated law. Proponents of this view argue that if constitutional interpretation appears distinctive in practice, that is …

The Constitutional Ratchet Effect, Kevin M. Stack

Vanderbilt Law School Faculty Publications

Christopher Serkin and Nelson Tebbe take an inductive and empirical approach to constitutional interpretation and elaboration. They ask whether attributes of the Constitution justify interpretive exceptionalism-that is, interpreting and elaborating the Constitution differently than other forms of law. They conclude that the characteristics of the Constitution they consider do not justify interpretive exceptionalism- at most, the "Constitution's principal distinguishing feature may be the fact that people think the Constitution is special- that it has a kind of mythological status." As Serkin and Tebbe see it, the extent to which individuals view the Constitution or constitutional law as special is best …

Section 1: Moot Court: Masterpiece Cakeshop, Ltd., Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

The Inaugural Abraham Lincoln Lecture On Constitutional Law: Electoral College Reform, Lincoln-Style, Akhil Reed Amar

Northwestern University Law Review

This Inaugural Abraham Lincoln Lecture was delivered at Northwestern Pritzker School of Law on April 6, 2017.

The Constitutional Constant, Richard A. Primus

Articles

According to a conventional view of the Constitution as a precommitment strategy, constitutional rules must remain fixed over time in order for the Constitution to do its work. In practice, however, constitutional rules regularly change over time, even without formal amendment. What is actually constant over time in the American constitutional system is not the content of constitutional law: it is the correspondence between the content of constitutional law and the American people’s (or at least the decision-making class’s) most powerful intuitions about issues of structure and ethos in American government. At any given time, constitutional law reflects those intuitions. …

Interpreting The Indonesian Constitutional Court Approach In Conducting Judicial Review On Cases Related To Economic And Social Rights, Andy Omara

Indonesia Law Review

One of the duties of the Indonesian Constitutional Court (Mahkamah Konstitusi - MK) is to determine whether legislation is consistent with the Constitution. If the MK determines that a statute is inconsistent with the Constitution, it declares that such statute is invalid. In such instance, the MK has the final word to determine the validity of legislation. In the view of some scholars, this feature reflects that the MK adopts strong form of judicial review. While this assertion holds true in some cases, it does not necessarily reflect the complete feature of the MK’s approach in deciding cases. In some …

The Total People's Defense And Security System: Problems Of The State-Sponsored Militia In Indonesia, Bhatara Ibnu Reza

Indonesia Law Review

The establishment of state-sponsored militia has raised concerns of human rights violations in non-international armed conflict in Indonesia. Most of the state-sponsored militia have been formed and tacitly supported by the Indonesian National Defense Forces (Tentara Nasional Indonesia) mostly based on the implementation of a concept called the Total People’s Defense and Security System (sistem pertahanan rakyat semesta-sishankamrata). The Total People’s Defense and Security System is the grand strategy adopted based on Indonesia’s experience during Indonesia’s physical revolution or armed struggle for independence (1945-1949) and recognized under the Second Amendment to the 1945 Constitution. This article will elaborate on, first, …

Problems Of Conducting Equal Education Rights For Non-Formal Education: Challenges For Batam Local Government, Win Sherly Tan

Indonesia Law Review

In order to fulfill the right to education as mandated by the 1945 Constitution, non-formal education has been introduced in Indonesian society. Non-formal education is provided for in Article 26 paragraphs 1-7 of Law No. 20 of 2003 on the National Education System. Since this provision has been mandated by the Law, the question arises as to whether the Government of Batam City has efficiently implemented the right to education for all. Another question is whether the system for implementing equal education through Community Learning Centers and Homeschooling in Batam City aimed at assisting the Batam City Government is the …

Are Critical Area Buffers Unconstitutional? Demystifying The Doctrine Of Unconstitutional Conditions, Brian T. Hodges

Seattle Journal of Environmental Law

Washington’s cities and counties are increasingly demanding that owners of residential shoreline properties dedicate large, predetermined critical area buffers as a mandatory condition of any new development. Such demands, when imposed without regard to the specifics of the land use proposal, would appear to violate the essential nexus and rough proportionality tests established by the U.S. Supreme Court in Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994). Early decisions from Washington courts faithfully applied these tests, invalidating open space and buffer dedications. But in a series of …

The Aftermath Of Care V. Cow Palace And The Future Of Rcra In Cafo Cases, Lauren Tavar

Sustainable Development Law & Policy

No abstract provided.

Water, Water, Nowhere: Adapting Water Rights For A Changing Climate, Caleb Hall

Sustainable Development Law & Policy

No abstract provided.

Ridding Pes Systems Of The “Pay To Pollute” Principle: Pes Optimization Strategies, Kelly Carlson

Sustainable Development Law & Policy

No abstract provided.

Indoor Aquaponics In Abandoned Buildings: A Potential Solution To Food Deserts, Lisa Tomlinson

Sustainable Development Law & Policy

No abstract provided.