Constitutional Law Commons^™

Laboratory Of Democracy: How The District Of Columbia Is Using The Home Rule Act To Achieve Elements Of Statehood, Walter A. Smith Jr., Kevin M. Hilgers

University of the District of Columbia Law Review

On January 3, 2019, Congresswoman Eleanor Holmes Norton, the District of Columbia's (the "District') nonvoting delegate to the House of Representatives, reintroduced the Washington, D.C. Admission Act, which would make much of the District the 51st state. While Norton had made a tradition of opening each new Congress by introducing D.C. democracy bills, the context this time gave District advocates more reason to be optimistic. With the Democrats gaining control of the House, the bill gained a record 155 original cosponsors, and Representative Elijah Cummings, chair of the House Committee on Oversight and Reform, committed to holding a hearing on …

A Proposal To Win The District Of Columbia A Partial Vote In The House Of Representatives, Mary M. Cheh

University of the District of Columbia Law Review

Unlike many citizens of the United States, citizens of the District of Columbia are denied a vote in the national legislature. Not only are they denied a voting representative on matters of national scope and importance, but Congress may control all facets of local governance for the 700,000 residents of the District. This paper suggests a new initiative. It calls for the D.C. Council, under its "Home Rule" authority granted by Congress, to amend a federal law, "The District of Columbia Delegate Act," ("Delgate Act") and give the District's delegate to the House of Representatives the authority to vote in …

California V. Texas: Brief For Jonathan H. Adler, Nicholas Bagley, Abbe R. Gluck, And Ilya Somin As Amici Curiae Supporting Petitioner, Nicholas Bagley

Appellate Briefs

Amici are experts in constitutional law, legislation, statutory interpretation, and administrative law. They disagree on many legal and policy questions concerning the Affordable Care Act (“ACA”), Pub. L. No. 111-148, 124 Stat. 119 (2010), including many questions about how to interpret it and whether the plaintiff States have standing in the present case. Yet they agree on this: even assuming the insurance mandate is unconstitutional, it is severable from the other provisions of the ACA. Any contrary conclusion would be inconsistent with settled law and Congress’s clearly expressed intent. Amici respectfully submit this amicus brief to explain this point.<\p>

Amici’s …

The Government Has Information Foia (For Ya): An Analysis Of Requesting Police Records In Collegedale, Tennessee And Athens, Georgia, Tierra Hayes

Capstone Research Projects

The Freedom of Information Act first went into effect in 1967 and was intended to give the general public of the United States more access to information and documents held by government entities. Since enactment, this act has given specifically journalists a means of approach to request previously undisclosed or hard to access materials including, but not limited to, police reports, body camera footage, court filings, budgets, salaries, and other documents held by various government offices. While there are restrictions with considerations such as national security, this access can be seen on national, state, and, as assessed in this research, …

John Fitisemanu, Et. Al. V. United States Of America, Et. Al., And The American Samoa Government And The Hon. Aumua Amata, Rafael Cox Alomar

Court Briefs

No abstract provided.

May 11, 2020: Why Can’T We Be Reasonable? Because There Is No Such Thing As Reason, Bruce Ledewitz

Hallowed Secularism

Blog post, “Why Can’t We Be Reasonable? Because There Is No Such Thing As Reason“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Justice Diseased Is Justice Denied: Coronavirus, Court Closures, And Criminal Trials, Ryan Shymansky

West Virginia Law Review Online

This Article aims to consider the immediate impacts of the novel coronavirus on criminal defendants’ access to speedy trials by jury. In particular, it aims to examine whether court closures and delays could affect the substantive rights of criminal defendants—and particularly pretrial detainees—to a speedy and public trial by jury. To date, very little scholarship has considered this question. Yet the ideal of a speedy trial by jury is deeply embedded in our Constitution and our judicial system, and the potential for a pandemic to limit or negate that right should ring scholastic and judicial alarm bells.

This analysis proceeds …

Minority Vetoes In Consociational Legislatures: Ultimately Weaponized?, Devin Haymond

Indiana Journal of Constitutional Design

In societies emerging from or at risk for conflict, dividing power among rival groups—called power-sharing—can be an appropriate arrangement to maintaining peace. But how can groups, who are often emerging from violent conflict, trust sharing a government with rival groups that were just recently shooting at them?

A potential solution is the minority veto, which is allows minority groups to block the government from harming those groups’ vital interests. But what sorts of change blocking mechanisms constitute a minority veto? Who gets the veto power, and when can they be used? Do minority vetoes function as effective incentives for ensuring …

Models Of Pre-Promulgation Review Of Legislation, Rachel Myers

Indiana Journal of Constitutional Design

Pre-promulgation review seeks to harmonize legislation with the constitution by engaging in a dialogue among government institutions that seeks to prevent unconstitutional legislation from becoming law. Pre-promulgation review is an integral part of the lawmaking process, and this study seeks to unite scholarship on different methods of this review in a comparative survey to assist lawyers, policymakers, and scholars. A wide range of institutions may fulfill the function of reviewing proposed legislation for compliance with the constitution or other codes of national importance prior to their passage into law. Because of this diversity, scholarship on the topic of pre-promulgation review …

Taxonomy Of Powers And Roles Of Upper Chambers In Bicameral Legislatures, Carolyn Griffith

Indiana Journal of Constitutional Design

Bicameral legislatures exist around the world, with power divisions to create checks and balances on the constitutional order as a whole. In the context of constitutional design, this presents a variety of options of roles and rights given to each chamber at each step in both the legislative process and beyond. Taken as a whole, this taxonomy demonstrates there are nearly an infinite number of possibilities for separating powers between upper and lower chambers in bicameral legislatures. Often, these decisions are guided by the history of the country. For each federal legislature that places powers or votes in one chamber, …

May 10, 2020: Panic About The Future, Bruce Ledewitz

Hallowed Secularism

Blog post, “ Panic About the Future“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

The Unqualified Mess Of Qualified Immunity; A Doctrine Worth Overruling, Allison Weiss

Washington and Lee Law Review Online

This comment is a response to Ryan E. Johnson, Note, Supervisors Without Supervision: Colon, McKenna, and the Confusing State of Supervisory Liability in the Second Circuit, 77 Wash. & Lee L. Rev. 457 (2020), which received the 2019 Washington and Lee Law Council Law Review Award.

In his note, Ryan Johnson drills down on the various ways that courts within the Second Circuit are approaching the viability of § 1983 lawsuits by incarcerated individuals against supervisors within correctional facilities. But how important is supervisory liability in the first place? Qualified immunity allows courts, as Mr. Johnson puts …

Peffer V. Stephens: Probable Cause, Searches And Seizures Within The Home, And Why Using Technology Should Not Open Your Front Door, Shane Landers

Texas A&M Law Review

The Fourth Amendment provides for the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures. Search warrants may only be issued upon a finding of probable cause. This core tenet of our constitutional republic becomes progressively flexible with every development in Fourth Amendment interpretation. In Peffer v. Stephens, the United States Court of Appeals for the Sixth Circuit delivered the latest blow to constitutional rights that restrict the State from engaging in unprincipled searches. In an issue of first impression, the Sixth Circuit held that a criminal defendant’s alleged use …

“We Can’T Just Throw Our Children Away”: A Discussion Of The Term-Of-Years Sentencing Of Juveniles And What Can Be Done In Texas, Anjelica Harris

Texas A&M Law Review

In the words of Supreme Court Justice Elena Kagan, children are different. The issue of how to sentence juvenile offenders has long been controversial. Although psychology acknowledges the connection between incomplete juvenile brain development and increased criminality, the justice system lags behind in how it handles juvenile offenders. A prime example is the case of Bobby Bostic, who at the age of sixteen was charged with eighteen offenses and sentenced to 241 years in prison. This sentence, known as a term-of-years or virtual life sentence, essentially guarantees that no matter what Bobby does or who he proves himself to be …

Symposium: Pandemics And The Constitution: Positive Constitutionalism In A Pandemic: Demanding Responsibility From The Trump Administration, Ruthann Robson

ConLawNOW

We have become accustomed to conceiving of our constitutional rights as affording protection only against government infringement, but not as granting us any positive rights to claim government protection or action. The circumstances surrounding the COVID-19 pandemic should make us question this reflexive resort to negative constitutionalism. The numerous failures of the present federal Administration to ameliorate and address the pandemic are startling. Even under current doctrinal limits of negative rights, the Administration’s failures should give rise to individual constitutional claims. Most importantly, we should reorient our constitutional frameworks, theories, and doctrines toward recognition of positive rights to health and …

Symposium: Pandemics And The Constitution: Why The Special Needs Doctrine Is The Most Appropriate Fourth Amendment Theory For Justifying Police Stops To Enforce Covid-19 Stay-At-Home Orders, Henry F. Fradella

ConLawNOW

Despite the fact that the steps the federal and state governments take to curtail the spread of the viral infection are presumably taken in the best interest of public health, governmental actions and actors must comply with the U.S. Constitution even during a pandemic. Some public health measures, such as stay-at-home orders, restrict the exercise of personal freedoms ranging from the rights to travel and freely associate to the ability to gather in places of worship for religious services. This Essay explores several completing doctrines that might justify the authority of law enforcement to stop people who are out of …

The Use Of Digital Millenium Copyright Act To Stifle Speech Through Non-Copyright Related Takedowns, Miller Freeman

Seattle Journal of Technology, Environmental, & Innovation Law

In 1998, Congress passed the Digital Millennium Copyright Act. This law provided new methods of protecting copyright in online media. These protections shift the normal judicial process that would stop the publication of infringing materials to private actors: the online platforms. As a result, online platforms receive notices of infringement and issue takedowns of allegedly copyrighted works without the judicial process which normally considers the purpose of the original notice of infringement. In at least one case, discussed in detail below, this has resulted in a notice and takedown against an individual for reasons not related to the purpose of …

Cryptocurrencies' Revolt Against The Bsa: Why The Supreme Court Should Hold That The Bank Secrecy Act Violates The Fourth Amendment, Jeremy Ciarabellini

Seattle Journal of Technology, Environmental, & Innovation Law

The Bank Secrecy Act (BSA) creates a Hobson’s choice: one must either struggle to function in modern society without a bank account or submit to financial surveillance by the government. Both choices result in drastic consequences.

Youtube Is Unsafe For Children: Youtube's Safeguards And The Current Legal Framework Are Inadequate To Protect Children From Disturbing Content, Heather Wilson

Seattle Journal of Technology, Environmental, & Innovation Law

For America’s children, the amount of screen time they consume has not changed much over the years. Children under eight have steadily spent about two hours a day in front of a screen, with those under age two averaging 42 minutes a day. Children from low-income families spend roughly an hour and forty minutes longer in front of a screen. According to the American Academy of Pediatrics, screen time should be limited to two hours a day for children ages two to five; whereas, for those youngest children—under two years—they recommend zero screen time.

While the average amount of screen …

May 5, 2020: Preparing The Ground To Overrule Roe?+A5, Bruce Ledewitz

Hallowed Secularism

Blog post, “Preparing the Ground to Overrule Roe?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

May 5, 2020: The National Day Of Prayer For The Coronavirus, Bruce Ledewitz

Hallowed Secularism

Blog post, “The National Day of Prayer for the Coronavirus“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

A More Perfect Electoral College: Challenging Winner-Takes-All Provisions Under The Twelfth Amendment, Eric T. Tollar, Spencer H. Kimball

Legislation and Policy Brief

No abstract provided.

Forward, Kimberly Wehle

Legislation and Policy Brief

No abstract provided.

May 2, 2020: What Does Over-Caution Signify?, Bruce Ledewitz

Hallowed Secularism

Blog post, “ What Does Over-Caution Signify?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Contracting Away The First Amendment?: When Courts Should Intervene In Nondisclosure Agreements, Abigail Stephens

William & Mary Bill of Rights Journal

No abstract provided.

Considerations Of History And Purpose In Constitutional Borrowing, Robert L. Tsai

William & Mary Bill of Rights Journal

No abstract provided.

Sex-Segregation, Economic Opportunity, And Roberts V. U.S. Jaycees, Elizabeth Sepper

William & Mary Bill of Rights Journal

No abstract provided.

Constitutional Conflict And Sensitive Places, Darrell A. H. Miller

William & Mary Bill of Rights Journal

No abstract provided.

Political And Non-Political Speech And Guns, Gregory P. Magarian

William & Mary Bill of Rights Journal

No abstract provided.

The Deliberative-Privacy Principle: Abortion, Free Speech, And Religious Freedom, B. Jessie Hill

William & Mary Bill of Rights Journal

No abstract provided.