Constitutional Law Commons^™

The Resurgence Of Executive Primacy In The Age Of Populism: Introduction To The Symposium, Peter Cane

Washington International Law Journal

The articles in this issue, devoted to legal and constitutional issues around executive primacy and populism, were first presented at an Advanced Workshop on the Resurgence of Executive Primacy in the Age of Populism, organised by Professor Cheng-Yi Huang and held at the Institutum Jurisprudentiae of the Academica Sinica in Taipei, Taiwan on June 21 and 22, 2018. Scholarly interest in populism has grown over the past thirty years to the point where it could recently be the subject of The Oxford Handbook of Populism, published late in 2017. According to the editors of that volume, the bulk of …

Executive Primacy, Populism, And Public Law, Peter Cane

Washington International Law Journal

As the articles in this Symposium suggest, populism and authoritarianism present ongoing challenges not only to liberal democracy but also to its legal underpinnings. Manipulation, avoidance, evasion, and outright rejection of the constitutional and legal frameworks of liberal democracy are features of populist authoritarianism. The basic argument of this article is that liberal-democratic public law and legal theory no longer satisfy human needs and desires because they were conceived in worlds that no longer exist, when the main pre-occupation was to secure liberty, not equality. The aim of the article is to explain the inherited structure of our public law …

Statutory Anti-Constitutionalism, Maciej Bernatt, Michał Ziółkowski

Washington International Law Journal

The article aims at demonstrating that unconstitutional results, marking an illiberal transformation may be achieved by means of a series of statutory amendments outside the constitutional amendment procedure, when the guardian of the constitution is deactivated. In other words, the evasion of the constitution becomes a means of illiberal change of the legal system. This process is referred to as “statutory anti-constitutionalism.” The article offers a detailed analysis of the legal methods which are used to evade the constitution. These include excessive use of transitional and intertemporal provisions in the statutes, shortening vacatio legis, shortening of constitutionally-determined terms of …

Breaking The Equilibrium: From Distrust Of Representative Government To An Authoritarian Executive, Gábor Attila Tóth

Washington International Law Journal

Although contemporary populist authoritarians have not entirely abandoned the aims and methods of their ancestors, authoritarianism has been undergoing a reinvention in recent years. Behind a façade of constitutionalism, new authoritarianism claims to abide by democratic principles. Populist authoritarians legitimize themselves through popular elections and maintain the entire set of formal institutions associated with constitutional democracy, using them as both an appearance of representation and a tool of authoritarian imposition. The article focuses on the concepts of trust and distrust of representative government to afford a better understanding of populist authoritarianism. The paper describes two rival theoretical conceptions of government, …

When The First And Second Amendments Collide: The Free Speech Implications Of West Virginia's Business Liability Protection Act Of 2018, Alex A. Tsiatsos

West Virginia Law Review

No abstract provided.

Migrating Marriage Equality Without Feminism: Obergefell V. Hodges And The Legalization Of Same-Sex Marriage In Taiwan, Chao-Ju Chen

Cornell International Law Journal

In 2017, Taiwan’s Constitutional Court issued a decision ruling the same-sex marriage ban unconstitutional. Celebrated as a victory for marriage equality readying Taiwan to become “the first in Asia” to legalize same-sex marriage, the decision’s reasoning demonstrated a remarkable resemblance to Obergefell v. Hodges in that they both embrace formal equality, endorse marital supremacy, and render feminist critique of marriage irrelevant or insignificant. Through an investigation of social movement dynamics and constitutional politics, this Article explores the hidden histories of marriage equality and the rise of marital supremacy, revealing how marriage equality has served as a site of contestation where …

Department Of Commerce V. New York: Brief Of Nicholas Bagley, Michael Dorf, Aziz Huq, Leah Litman, Gillian Metzger, Jon D. Michaels, Laurence H. Tribe, And Stephen I. Vladeck As Amici Curiae In Support Of Respondents, Nicholas Bagley, Leah Litman

Appellate Briefs

Amici are legal scholars whose focus includes administrative and constitutional law. They have studied, taught, and written about standing, judicial review, jurisdiction, constitutional interpretation, and agency discretion. They have a strong interest in the development of the law-including the maintenance of a careful balance between deference to administrative agencies and judicial review of agency action. A list of amici is set forth in an appendix to this brief.

The question here is not whether the Commerce Secretary has the statutory power to add a question about citizenship to the census. It is, instead, whether the Secretary adhered to the most …

Originalism Versus Living Constitutionalism: The Conceptual Structure Of The Great Debate, Lawrence B. Solum

Northwestern University Law Review

The great debate between originalism and living constitutionalism ought to focus on the merits, including normative arguments for and against various forms of each theory. Frequently, however, discussion turns to disputes about definitions and concepts. This Essay investigates the conceptual structure of the great debate. It lays out a variety of issues that arise when theorists attempt to define “originalism” and “living constitutionalism” and proposes criteria for settling definitional disputes.

Meritless Historical Arguments In Second Amendment Litigation, Mark Anthony Frassetto

UC Law Constitutional Quarterly

Since Heller Second Amendment litigation and scholarship has focused in large part on questions about the historical understanding of the Second Amendment. One area where this historical analysis has been especially pronounced is in litigation over the scope of the Second Amendment right outside of the home. Litigants, amici, and scholars fiercely debate the meaning of historical statutes, treatises, and cases, arguing about the scope of the right to carry arms outside of the home at the time of the Second and Fourteenth Amendments’ ratifications. Most law review articles attempt to address difficult or hotly contested legal issues. This is …

A Secret Weapon?: Applying Privacy Doctrine To The Second Amendment, Jody Lyneé Madeira

UC Law Constitutional Quarterly

In the past decade, “gun rights” advocates have attempted to strategically articulate a Second Amendment privacy interest in being free from interference from both governmental actors and private actors with ownership of, access to, or use of firearms. This essay explores why privacy is an appealing framework for these purposes, and how courts have responded to such claims thus far. Part I analyzes privacy as a legal and sociocultural construct, assesses claims that firearms ownership and use are stigmatized, and discusses how privacy doctrine can be a stigma management strategy. Part II examines three cases in which gun rights supporters …

Reciprocal Concealed Carry: The Constitutional Issues, William D. Araiza

UC Law Constitutional Quarterly

Legislation introduced in recent congressional sessions would enact some version of “concealed carry reciprocity” for firearms. This legislation would create a regime in which a holder of a concealed firearms carry permit issued by one state can carry a concealed weapon in any state that allows some form of concealed carry. Concealed carry reciprocity legislation raises a complex web of constitutional issues. After Part I of this Article introduces the concept of concealed carry reciprocity, as exemplified by a bill that the House passed in December, 2017, Parts II and III consider those constitutional issues. Part II considers the three …

Unifying Original Intent And Original Public Meaning, John O. Mcginnis, Michael B. Rappaport

Northwestern University Law Review

Original intent and original public meaning are generally thought to be opposing camps within originalism. Both theories assert that that the meaning of a constitutional provision was fixed at the time it was enacted. But they disagree fundamentally on the nature of interpretation. Original intent asserts that the meaning sought is that intended by the Constitution’s enactors. Original public meaning asserts that the meaning sought is that revealed by the text as reasonably understood by a well-informed reader at the time of the provision’s enactment.

In this Essay, we unite these two conflicting principles of originalism under the original methods …

Grounding Originalism, William Baude, Stephen E. Sachs

Northwestern University Law Review

How should we interpret the Constitution? The “positive turn” in legal scholarship treats constitutional interpretation, like the interpretation of statutes or contracts, as governed by legal rules grounded in actual practice. In our legal system, that practice requires a certain form of originalism: our system’s official story is that we follow the law of the Founding, plus all lawful changes made since.

Or so we’ve argued. Yet this answer produces its own set of questions. How can practice solve our problems, when there are so many theories of law, each giving practice a different role? Why look to an official …

The Second Amendment As A Fundamental Right, Timothy Zick

UC Law Constitutional Quarterly

The Second Amendment has been suffering from an inferiority complex. Litigants, scholars, and judges have complained that the right to keep and bear arms is not being afforded the respect and dignity befitting a fundamental constitutional right. They have asserted that on its own terms and relative to rights in the same general class, the Second Amendment is being disrespected, under-enforced, and even orphaned. Reviewing the available evidence, this Article generally rejects secondclass claims as either false or significantly overstated. Many of the claims are based on false premises, including the notion that the Supreme Court and lower courts immediately …

Reshaping American Jurisprudence In The Trump Era - The Rise Of Originalist Judges, Jeffrey F. Addicott

Faculty Articles

One of the factors that is often cited as a key reason why President Donald J. Trump was elected as the forty-fifth president, was his pledge to the American people to "make America great again" by appointing "conservative judges" to the bench, particularly when it came to filling any vacancies that might open on the United States Supreme Court. Since the never ending fight for securing an ideological majority on the Supreme Court is always viewed with great concern by both political parties, many wondered whether then candidate Trump was simply telling potential voters what they wanted to hear, or …

Panel 3: Free Speech And Freedom Of Religion

Georgia State University Law Review

Moderator: Eric Segall

Panelists: Mike Dorf and Eugene Volokh

Panel 5: Federalism And Separation Of Powers

Georgia State University Law Review

Moderator: Eric Segall

Panelists: Stephen Griffin, Neil Kinkopf, and Ilya Somin

Will Conservative Justices Sound The Death Knell Of State Action? Be Careful For What You Wish, Anne M. Lofaso

Law Faculty Scholarship

No abstract provided.

Dignity And Social Meaning: Obergefell, Windsor, And Lawrence As Constitutional Dialogue, Steve Sanders

Fordham Law Review

The U.S. Supreme Court’s three most important gay and lesbian rights decisions—Obergefell v. Hodges, United States v. Windsor, and Lawrence v. Texas—are united by the principle that gays and lesbians are entitled to dignity. Beyond their tangible consequences, the common constitutional evil of state bans on same-sex marriage, the federal Defense of Marriage Act, and sodomy laws was that they imposed dignitary harm. This Article explores how the gay and lesbian dignity cases exemplify the process by which constitutional law emerges from a social and cultural dialogue in which the Supreme Court actively participates. In doing …

Corpus Evidence Illuminates The Meaning Of Bear Arms, Dennis Baron

UC Law Constitutional Quarterly

In his opinion in District of Columbia v. Heller (2008), the late Justice Antonin Scalia insisted that the phrase “bear arms” did not refer to military contexts in the founding era. An examination of corpus data not available in 2008 clearly shows that founding-era sources almost always use “bear arms“ in an unambiguously military sense. This suggests that the plain, ordinary, natural, and original meaning of bear arms in the eighteenth century was ‘carry weapons in war,’ or in other forms of military or quasi-military action, not in hunting or individual self-defense. Corpus evidence shows as well that the phrases …

A Different Constitutionality For Gun Regulation, Lindsay Schakenbach Regele

UC Law Constitutional Quarterly

District of Columbia v. Heller hinged on the Second Amendment, defining for the first time an individual’s right to own a firearm unconnected with militia use, so long as the firearm is in “common use.” This essay argues that because the government determined which firearms were in “common use” throughout the nation’s early history, the Second Amendment allows regulating the types of weapons available to civilians, and their usage. It uses evidence from Congress, the War Department, and private arms manufacturers to examine the role of the federal government in developing and shaping the firearms industry from the nation’s founding …

A Triggered Nation: An Argument For Extreme Risk Protection Orders, Caroline Shen

UC Law Constitutional Quarterly

In recent years, the U.S. has experienced an unprecedented number of mass shootings and other gun-related injuries and deaths. In spite of all of this gun violence, there is still an unyielding resistance against the passage of common sense gun laws. Many laws restricting large capacity magazines and gun silencers, for example, are continuously shot down by federal and state courts, and the National Rifles Association and its constituents in Congress continue to hitch their arguments to the decision of the Supreme Court in District of Columbia v. Heller.

In this time of political gridlock, perhaps the best solution is …

Methodological Pluralism And The Methods Of Comparative Constitutional Law, Michael Da Silva

Cardozo International & Comparative Law Review

This article defends comparative constitutional law's status as a genuine academic discipline capable of producing knowledge. In so doing, it argues that common claims about the necessary conditions for being an academic discipline are false: a field does not need a unique method or set of methods to be an academic discipline. Comparative constitutional law requires multiple methods to produce the valuable knowledge that makes the product of comparative constitutional law research unique, but it remains a discipline. It is not the only example of an academic discipline that does not fulfill the claimed methodological conditions on disciplinarily. A discipline …

Panel 1: Abortion And Gay Rights

Georgia State University Law Review

Moderator: Eric Segall

Panelists: Jonathan Adler, Pam Karlan, and Mark Tushnet

O’Neill, Oh O’Neill, Wherefore Art Thou O’Neill: Defining And Cementing The Requirements For Asserting Deliberative Process Privilege, Andrew Scott

Dickinson Law Review (2017-Present)

The government may invoke the deliberative process privilege to protect the communications of government officials involving policy-driven decision-making. The privilege protects communications made before policy makers act upon the policy decision to allow government officials to speak candidly when deciding a course of action without fear of their words being used against them.

This privilege is not absolute and courts recognize the legitimate countervailing interest the public has in transparency. The Supreme Court in United States v. Reynolds held that someone with control over the protected information should personally consider the privilege before asserting it but did not provide definitive …

Remarks On Prosecutorial Discretion And Immigration, Shoba S. Wadhia

Dickinson Law Review (2017-Present)

No abstract provided.

The Fire Rises: Refining The Pennsylvania Fireworks Law So That Fewer People Get Burned, Sean P. Kraus

Dickinson Law Review (2017-Present)

On October 30, 2017, the General Assembly of Pennsylvania passed an act that repealed the state’s fireworks law, which had prohibited the sale of most fireworks to Pennsylvanian consumers for nearly 80 years. The law’s replacement generally permits Pennsylvanians over 18 years old to purchase, possess, and use “Consumer Fireworks.” Bottle rockets, firecrackers, Roman candles, and aerial shells are now available to amateur celebrants for holidays like Independence Day and New Year’s Eve. The law also regulates a category of larger “Display Fireworks,” sets standards for fireworks vendors, and introduces a 12-percent excise tax on fireworks sales that serves to …

Between Brady Discretion And Brady Misconduct, Bennett L. Gershman

Dickinson Law Review (2017-Present)

The Supreme Court’s decision in Brady v. Maryland presented prosecutors with new professional challenges. In Brady, the Supreme Court held that the prosecution must provide the defense with any evidence in its possession that could be exculpatory. If the prosecution fails to timely turn over evidence that materially undermines the defendant’s guilt, a reviewing court must grant the defendant a new trial. While determining whether evidence materially undermines a defendant’s guilt may seem like a simple assessment, the real-life application of such a determination can be complicated. The prosecution’s disclosure determination can be complicated under the Brady paradigm because …

All Watched Over By Machines Of Loving Grace: Border Searches Of Electronic Devices In The Digital Age, Sean O'Grady

Fordham Law Review

The border search exception to the Fourth Amendment has historically given the U.S. government the right to conduct suspicionless searches of the belongings of any individual crossing the border. The federal government relies on the border search exception to search and detain travelers’ electronic devices at the border without a warrant or individualized suspicion. The government’s justification for suspicionless searches of electronic devices under the traditional border search exception for travelers’ property has recently been called into question in a series of federal court decisions. In March 2013, the Ninth Circuit in United States v. Cotterman became the first federal …

The Impact Of Prosecutorial Misconduct, Overreach, And Misuse Of Discretion On Gender Violence Victims, Leigh Goodmark

Dickinson Law Review (2017-Present)

Prosecutors are failing victims of gender violence as witnesses and when they become defendants in cases related to their own victimization. But it is questionable whether that behavior should be labeled misconduct. The vast majority of these behaviors range from misuses of discretion to things that some might consider best practices in handling gender violence cases. Nonetheless, prosecutors not only fail to use their discretion appropriately in gender violence cases, but they take affirmative action that does tremendous harm in the name of saving victims and protecting the public. The destructive interactions prosecutors have with victims of gender violence are …