Constitutional Law Commons^™

Whose Lands? Which Public?: The Shape Of Public-Lands Law And Trump's National Monument Proclamations, Jedediah Britton-Purdy

Faculty Scholarship

President Trump issued a proclamation in December 2017 purporting to remove two million acres in southern Utah from national monument status, radically shrinking the Grand-Staircase Escalante National Monument and splitting the Bears Ears National Monument into two residual protected areas. Whether the President has the power to revise or revoke existing monuments under the Antiquities Act, which creates the national monument system, is a new question of law for a 112-year-old statute that has been used by Presidents from Theodore Roosevelt to Barack Obama to protect roughly fifteen million acres of federal land and hundreds of millions of marine acres. …

Brief Of Professor Ernest A. Young As Amicus Curiae In Support Of Plaintiff Appellant Urging Reversal, Ernest A. Young

Faculty Scholarship

No abstract provided.

Brief Of Professors William Baude And Stephen E. Sachs As Amici Curiae In Support Of Neither Party, William Baude, Stephen E. Sachs

Faculty Scholarship

This case presents the question whether to overrule Nevada v. Hall, 440 U.S. 410 (1979). That question requires careful attention to the legal status of sovereign immunity and to the Constitution’s effect on it, which neither Hall nor either party has quite right. The Founders did not silently constitutionalize a common-law immunity, but neither did they leave each State wholly free to hale other States before its courts. While Hall’s holding was mostly right, other statements in Hall are likely quite wrong—yet this case is a poor vehicle for reconsidering them.

Hall correctly held that States lack a constitutional immunity …

The Constitutionality Of A National Wealth Tax, Dawn Johnsen, Walter Dellinger

Faculty Scholarship

Economic inequality threatens America’s constitutional democracy. Beyond obvious harms to our nation’s social fabric and people’s lives, soaring economic inequality translates into political inequality and corrodes democratic institutions and values. The coincident, relentless rise of money in politics exacerbates the problem. As elected officials and candidates meet skyrocketing campaign costs by devoting more and more time to political fundraising—and independent expenditures mushroom—Americans lose faith and withdraw from a system widely perceived as beholden to wealthy individuals and corporate interests.

The United States needs innovative approaches to help rebuild foundational, shared understandings of American democracy, the American Dream, and opportunity and …

The United States As An Idea: Constitutional Reflections, H. Jefferson Powell

Faculty Scholarship

No abstract provided.

Martin, Ghana, And Global Legal Studies, H. Timothy Lovelace Jr.

Faculty Scholarship

This brief essay uses global legal studies to reconsider Dr. Martin Luther King, Jr.'s activism after Gayle v. Browder. During this undertheorized portion of King's career, the civil rights leader traveled the world and gained a greater appreciation for comparative legal and political analysis. This essay explores King's first trip abroad and demonstrates how King's close study of Kwame Nkrumah's approaches to law reform helped to lay the foundation for watershed moments in King's own life.

In To Redeem the Soul of America: The Southern Christian Leadership Conference and Martin Luther King, Jr., renowned civil rights scholar and author, Adam …

Erie As A Way Of Life, Ernest A. Young

Faculty Scholarship

No abstract provided.

Federalism Friction In The First Year Of The Trump Presidency, Vikram David Amar

UC Law Constitutional Quarterly

Over the last twelve months or so, federalism principles have been repeatedly invoked by state and local governments in a range of lawsuits and legislative proposals seeking to block or temper federal policy initiatives emanating from the new Administration of President Donald Trump. In this essay, I hope to sketch out a few of the more high-profile federalism flashpoints that have emerged over the past year or so, and offer some preliminary assessments of some of the decisions that lower courts (and legislative bodies) have been rendering in some of them. I try to highlight areas of agreement and areas …

Jeopardizing Their Communities, Their Safety, And Their Lives: Forced Concealed Carry Reciprocity's Threat To Federalism, Hannah E. Shearer

UC Law Constitutional Quarterly

The Concealed Carry Reciprocity Act (H.R. 38) is a gun bill that would force each state to recognize and enforce the concealed carry laws of every other state. State laws governing the concealed carry of firearms vary widely in how effectively they screen out reckless or unlawful gun carriers. Weaker state laws let more people carry with fewer background checks or other restrictions, and H.R. 38 would extend the geographic scope of the weakest concealed carry laws in the nation, without requiring that Congress actually adopt a weak national standard. This Essay argues that forced reciprocity violates the division of …

The President's Constitutional Responsibility To Confront Climate Change And Invest In Renewable Energy For National Security, Bishop Garrison

UC Law Constitutional Quarterly

Climate change is having a direct effect on the United States as well as the rest of the world. The national security community has long identified climate change as an ongoing security threat. For decades, plans of action have been established to address it, but the issue is still treated from a more partisan space than with the heft of a danger with lasting consequences. If national security leaders have deemed it a hazard, it follows that the leader of the Free World-the president of the United States-has a duty under the U.S. Constitution to protect against such a threat. …

Constitutionally Compromised Democracy: The United States District Clause, Its Historical Significance, And Modern Repercussions, Bradley Raboin

UC Law Constitutional Quarterly

The United States is widely considered the most prominent example of the modem democratic state. Yet, America's most prolific historical document remains imbued with a seemingly impossible contradiction. The District of Columbia, the Constitutionally mandated territory housing the federal government and serving as the literal epicenter of American democracy, does not actually provide representation to citizens living in that district. Incredibly, the very place created to house a government "for the people, of the people, and by the people," does not even allow the people residing therein to partake in that government.

This Article examines this Constitutional conflict within American …

Sex Offender Regulations And The Rule Of Law: When Civil Regulatory Schemes Circumvent The Constitution, Ryan W. Porte

UC Law Constitutional Quarterly

The U.S. Supreme Court last decided the issue of whether post-incarceration sex offender regulations constituted punishment or nonpunitive regulations over twenty years ago. In coming to its conclusion, the Supreme Court assessed the regulations as they were written in the 1990s and the early 2000s and maintained the assumption that offenders constituted a greater danger to the public than other classes of criminals. In 2018, post-incarceration sex offender regulations are far more restrictive than they were two decades ago and scientific studies tend to refute the public belief that sex offenders are more recidivistic than other criminals. Recognizing this, some …

Emoluments, Zones Of Interests, And Political Questions: A Cautionary Tale, Jed Handelsman Shugerman, Gautham Rao

UC Law Constitutional Quarterly

As the Supreme Court addresses partisan gerrymanders in 2018, the "political question" doctrine is facing intense scrutiny. Will the Court tackle the problem or punt once again? It turns out that other high-profile cases in the lower courts offer a perspective on the political question doctrine. The Emoluments cases offer a cautionary tale about the use of the political question doctrine, and how the political question doctrine is too often an unconsciously tempting escape forjudges facing challenging legal questions.

The dismissal by the Southern District of New York in CREW v. Trump avoided reaching the merits of the emoluments claims …

Religious Exemptions, Harm To Others, And The Indeterminacy Of A Common Law Baseline, Elizabeth Sepper

Kentucky Law Journal

No abstract provided.

Equitable Mootness: Ignorance Is Bliss And Unconstitutional, Robert Miller

Kentucky Law Journal

No abstract provided.

Lies, Line Drawing, And (Deep) Fake News, Marc Jonathan Blitz

Oklahoma Law Review

No abstract provided.

Legislating Against Lying In Campaigns And Elections, Joshua S. Sellers

Oklahoma Law Review

No abstract provided.

The Right To Receive Foreign Speech, Joseph Thai

Oklahoma Law Review

No abstract provided.

Student Protests And Academic Freedom In An Age Of #Blacklivesmatter, Philip Lee

Journal Articles

Student activism for racial equity and inclusion is on a historic rise on college and university campuses across the country. Students are reminding us that Black lives matter. They are bringing attention to the ways in which the normal operation of the legal system creates racial and other inequalities. They are critiquing the ways in which their experiences and perspectives are pushed to the margins in classrooms, on campuses, and in society.

In urging for university policies that allow for such activism to be moments of teaching and learning for all involved, I argue in this Article that student academic …

"The Essential Characteristic": Enumerated Powers And The Bank Of The United States, Richard Primus

Michigan Law Review

The idea that Congress can legislate only on the basis of its enumerated powers is an orthodox proposition of constitutional law, one that is generally supposed to have been recognized as essential ever since the Founding. Conventional understandings of several episodes in constitutional history reinforce this proposition. But the reality of many of those events is more complicated. Consider the 1791 debate over creating the Bank of the United States, in which Madison famously argued against the Bank on enumerated-powers grounds. The conventional memory of the Bank episode reinforces the sense that the orthodox view of enumerated powers has been …

Freedom Of Speech Remains Superior To All Other Alternatives, David L. Faigman

UC Law Constitutional Quarterly

No abstract provided.

And Yet It Moves - The First Amendment And Certainty, Ronald K. L. Collins

UC Law Constitutional Quarterly

Few works on the First Amendment have explored the relation between free speech and certainty. While this relationship is inherent in much free speech theory and doctrine, its treatment has nonetheless been rather opaque. This Essay teases outphilosophically, textually, and operationally-the significance of that relationship and what it means for our First Amendment jurisprudence. This Essay examines how the First Amendment operates to counter claims of certainty and likewise how it is employed to demand a degree of certainty from those who wish to cabin free speech rights. This Essay argues that many free speech theories (from Milton to Meiklejohn …

Certainty And The Censor's Dilemma, Robert Corn-Revere

UC Law Constitutional Quarterly

In a free society the censor never has the moral high ground. This fact rests uneasily with one of the primary qualities of the censor-certainty. It's right there in the job description. As Justice Anthony Kennedy has written, "[s]elf-assurance has always been the hallmark of a censor." Chief Justice Oliver Wendell Holmes captured the ethos of censorship nearly a century ago in his famous Abrams v. United States dissent: "Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart …

Clash Of The First And Second Amendments: Proposed Regulation Of Armed Protests, Katlyn E. Deboer

UC Law Constitutional Quarterly

The United States has strayed far from its traditional use of citizen militias to demand freedom from the British and has taken a deep dive into a practice of flaunting weapons at political protests as a display of bravado to provoke fear, chill opposition, and reap media attention. The recent "Unite The Right" rally in Charlottesville, Virginia, and its resulting violent pandemonium brought the issue of open carry protests to the forefront of public discourse. Armed protesters cling to their First and Second Amendment rights as shields to justify the semiautomatic firearms slung about their backs, but is this faith …

Striking The Right Balance: Hate Speech Laws In Japan, The United States, And Canada, Craig Martin

UC Law Constitutional Quarterly

This Article engages in a comparative examination of three different approaches to finding the right balance between legal limits on hate speech and the right to freedom of expression. The Japanese and American systems have struggled to find both a sufficiently important purpose to justify hate speech laws, or an appropriate limiting principle to narrow their scope. Neither system views hate speech laws as implicating equal protection rights, and so the balance is heavily in favor of freedom of speech. The American doctrine views hate speech laws as justifiable only if they can come within other ill-fitting categories of lesser-protected …

Hating Hate Speech: Why Current First Amendment Doctrine Does Not Condemn A Careful Ban, Rory K. Little

UC Law Constitutional Quarterly

In the wake of the 2017 Charlottesville protests and the recent revival of "white supremacy" rallies, some constitutional scholars have asserted once again that a "hate speech ban" is unconstitutional under the First Amendment. There are certainly strong policy and historical arguments to oppose such a ban, although the Supreme Court upheld such a ban in 1942 and has never overruled that precedent. The doctrinal objection to such a ban is based on a restrictive adoption of Brandenburg v. Ohio, and a failure to fully explicate the alternative ground for prohibition found in the Supreme Court's repeated definition of "fighting …

Proceed With Caution: Hate Speech Regulation In Japan, Junko Kotani

UC Law Constitutional Quarterly

The Diet of Japan enacted the Hate Speech Elimination Act in 2016 amid heated debates over the appropriate role that the government should play in confronting the vulgar racist hate speech that had been permeating the country. The Act, however, does not criminalize or make illegal hate speech and is thus criticized by Professor Craig Martin. This Article argues that while the principles of freedom of speech under the Constitution of Japan may tolerate criminalization of narrowly defined hate speech, one should be cautious in advocating for immediate criminalization of racist hate speech in the country. This Article provides an …

Rluipa And Method-Of-Execution Claims After Glossip: The Free Exercise Exception To Glossip's Known-And-Available Alternative Requirement, Griffin Estes

UC Law Constitutional Quarterly

Since the Court's decision in Glossip v. Gross, a capital inmate has the burden of proposing an alternative method-of-execution to be administered in lieu of the statutorily proscribed method if the inmate believes that the method-of-execution to be used in their execution would violate the Eighth Amendment's prohibition on "cruel and unusual punishments." Many inmates have specific religious beliefs and it is possible that a condemned inmate might have a religious objection to capital punishment. The Religious Land Use and Institutionalized Persons Act ("RLUIPA") represents Congress's sensitivity toward the religious liberties of inmates. This Note applies the RLUIPA framework to …

Echoes Of Slavery Ii: How Slavery's Legacy Distorts Democracy, Juan F. Perea

Faculty Publications & Other Works

No abstract provided.

The Right To Counsel In Criminal Cases: Still A National Crisis, Mary Sue Backus, Paul Marcus

Faculty Articles

In 1963, Gideon v. Wainwright dramatically changed the landscape of criminal justice with its mandate that poor criminal defendants be entitled to legal representation funded by the government. As scholars and practitioners have noted repeatedly over more than fifty years, states have generally failed to provide the equal access Gideon promised. This Article revisits the questions raised by the authors over a decade ago when they asserted that a genuine national crisis exists regarding the right to counsel in criminal cases for poor people. Sadly, despite a few isolated instances where litigation has sparked some progress, the issues remain the …